SUSAN MORGAN V DEPT OF SOCIAL SERVAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
October 27, 1998
Ingham Circuit Court
LC No. 94-015526 CM
MICHIGAN DEPARTMENT OF SOCIAL
SERVICES, MICHIGAN DEPARTMENT OF
CIVIL SERVICE, JAMES QUIGLEY, and
Before: Talbot, P.J., and McDonald and Neff, JJ.
Plaintiff appeals as of right from an order granting defendants’ motion for summary disposition
under MCR 2.116(C)(10) regarding her claims that defendants violated her constitutional right to due
process of law by failing to promote her. We affirm.
Plaintiff first argues that the trial court erroneously followed the opinion of Justice Boyle in Smith
v Dep’t of Public Health, 428 Mich 540, 637-658; 410 NW2d 749 (1987), aff’d sub nom Will v
Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d (1989). Plaintiff argues that the court
instead should have followed the opinion of Justice Archer in Smith. Plaintiff ’s argument is
The relevant portions of Justice Boyle’s and Justice Archer’s opinions in Smith are as follows:
[Boyle, J.] For “constitutional torts,” liability should only be imposed on the state in
cases where a state “custom or policy” mandated the official or the employee’s actions.
Liability should be imposed on the state only where the action of a state agent
“implements or executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” [Id. at 642-643.]
[Archer, J.] We would not, however, limit [this holding] to a determination of whether
the alleged constitutional violation occurred by “virtue of a governmental custom or
policy” or whether a “damage remedy is proper,” and do not agree those limitations
should be imposed on a remedy for constitutional violation.” [Id. at 658.]
Several panels of this Court have cited Justice Boyle’s opinion in holding that suits against
governmental employees for alleged constitutional torts should be allowed only when the targeted
employees were carrying out a governmental “custom or policy.” See e.g., Carlton v Michigan Dep’t
of Corrections, 215 Mich App 490, 504-505; 546 NW2d 671 (1996); Johnson v Wayne Co, 213
Mich App 143, 150; 540 NW2d (1995); Marlin v City of Detroit (After Remand), 205 Mich App
335, 338; 517 NW2d 305 (1994). Notwithstanding the fact that Justice Boyle’s opinion in Smith,
supra at 642, does not represent binding authority because it was not a majority opinion, we conclude
that the adoption of this opinion in subsequent cases does represent binding authority. MCR 7.215(H).
Therefore, the trial court properly relied on Justice Boyle’s Smith opinion in making its summary
Plaintiff next contends that even if Justice Boyle’s “custom or policy” requirement were
applicable, defendants may still be held liable because they acted pursuant to two policies, a policy
allowing two-person interview panels and a policy allowing interviewers with spouses seeking the
position to participate on those panels. We disagree.
This Court has stated that as “a matter of pure logic, a single incident does not a custom, policy,
or practice make.” Sudul v Hamtramck, 221 Mich App 455, 469; 562 NW2d 478 (1997). Viewing
the evidence in a light most favorable to plaintiff, Donajkowski v Alpena Power Co, 219 Mich App
441, 46; 556 NW2d 876 (1996), we find that reasonable minds could not conclude that defendant
Smalley’s participation as a member of plaintiff’s interview panel was pursuant to a custom or policy.
With regard to the two-person panel “policy” alleged by plaintiff, we note that plaintiff failed to provide
any factual support for the proposition that using two-person interview panels was customary.
Accordingly, we find that summary disposition was appropriate.
Finally, even if we were to accept as true plaintiff’s assertion that Smalley acted pursuant to a
state “custom or policy,” plaintiff has failed to establish that such a custom or policy deprived her of a
property interest. To establish a constitutionally protected property interest, “a person
must have more than just a need, desire for, or a unilateral expectation of [a] benefit.” St Louis v
Michigan Underground Storage Tank Financial Assurance Policy Bd, 215 Mich App 69, 74; 544
NW2d 705 (1996). Here, the promotion to area manager merely represented an expectation to
plaintiff and was not a protected property interest.
/s/ Michael J. Talbot
/s/ Gary R. McDonald
/s/ Janet T. Neff