Janetsky v. Cnty. of Saginaw

982 N.W.2d 374 (Mem)

Jennifer JANETSKY, Plaintiff-Appellant,

v.COUNTY OF SAGINAW and Christopher Boyd, Defendants-Appellees,andSaginaw County Prosecutor's Office and John McColgan, Defendants.

Jennifer Janetsky, Plaintiff-Appellant,

v.County of Saginaw, John McColgan, and Christopher Boyd, Defendants-Appellees,andSaginaw County Prosecutor's Office, Defendant.

SC: 161612

COA: 346542

SC: 161613

COA: 346565

Supreme Court of Michigan.

December 21, 2022

Order

On October 13, 2022, the Court heard oral argument on the application for leave to appeal the April 23, 2020 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals in part, and REMAND this case to that court for consideration of the issues raised by defendants but not addressed by that court during its initial review.

The Court of Appeals erred by concluding that: (1) defendant Christopher Boyd is entitled to immunity from tort liability because there is no genuine issue of material fact concerning whether he acted in good faith, (2) plaintiff has not established a genuine issue of material fact that she engaged in protected activity under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. , by reporting actual or suspected violations of the law, and (3) the WPA provides the exclusive remedy for plaintiff's public-policy claim.¹

Regarding plaintiff's intentional-tort claims, a reasonable jury could conclude that Boyd's alleged conduct toward plaintiff lacked good faith and therefore he is not entitled to governmental immunity. See Odom v Wayne Co , 482 Mich. 459, 480, 760 N.W.2d 217 (2008).² Plaintiff alleges that Boyd committed the intentional torts of assault/battery and false arrest/imprisonment.³ Boyd bears the burden "to raise and prove his entitlement to governmental immunity as an affirmative defense." Id. at 479, 760 N.W.2d 217. Boyd argues that he acted in good faith because he believed that his actions were an appropriate exercise of supervisory authority. He cites evidence that his treatment of plaintiff was consistent with his treatment of other attorneys in his office. However, plaintiff has presented evidence that Boyd, in fact, treated her differently than other attorneys in the office, and Boyd has not conclusively rebutted that evidence. Moreover, even assuming that Boyd's alleged conduct here was consistent with his personal management style, a jury could still conclude that he did not believe in good faith that this behavior was an appropriate exercise of his supervisory authority.

Regarding plaintiff's WPA claim, there was sufficient evidence that she reported actual or suspected violations of the law under MCL 771.1 and MCL 780.756(3). Whether there were actual violations of the law under these statutes is not dispositive, as the WPA also protects those who report suspected violations of the law. Plaintiff has presented sufficient evidence to create a question of fact that she suspected the law had been violated. For example, plaintiff drafted a motion, which was signed and filed by Boyd, requesting that the trial court set aside the sentencing agreement and allow the criminal defendant to withdraw his plea because the sentencing agreement was "unlawful" under MCL 771.1. Moreover, MCL 780.756(3) does not require consultation with victims generally but rather requires it "[b]efore finalizing any negotiation that may result in a ... plea or sentence bargain...." There is no evidence that the victims here were consulted during or in anticipation of the negotiations that resulted in the plea bargain eventually finalized, and a reasonable jury could conclude that plaintiff suspected this failure to consult violated MCL 780.756(3). Since there is a question of fact as to whether plaintiff reported suspected violations of the law under MCL 771.1 and MCL 780.756(3), we decline to address whether actual violations of the law occurred.

Finally, regarding plaintiff's public-policy claim, the WPA does not provide the exclusive remedy. Plaintiff's public-policy claim is factually distinct from her WPA claim and those factual allegations do not fall within the scope of conduct covered by the WPA. Plaintiff's WPA claim is based on reports to her supervisor of actual or suspected violations of the law in the entering of a plea and sentencing agreement. By contrast, plaintiff's public-policy claim is based on her alleged refusal to violate the law—i.e., her attempt to set aside that plea and sentencing agreement. Further, the WPA governs only reports of violations or suspected violations of the law, and plaintiff's public-policy claim is not premised on such conduct. We express no opinion as to whether plaintiff's public-policy claim is otherwise legally or factually supported and leave that issue for further consideration on remand.

Clement, C.J. (concurring in part, concurring in the judgment in part, and dissenting in part)

I largely agree with the result the Court reaches today (albeit with one disagreement), and I join the reasoning of some portions of it.

First, as to plaintiff's intentional-tort claims, I join in full the Court's holding that "a reasonable jury could conclude that Boyd's alleged conduct toward plaintiff lacked good faith and therefore he is not entitled to governmental immunity." Indeed, I would go further. I do not believe the "good faith" standard we have used for the intentional torts of governmental employees is applicable in circumstances like these. We discussed this standard at some length in Odom v Wayne Co , 482 Mich. 459, 473-475, 760 N.W.2d 217 (2008), but I believe in context it only properly applies to public officers who, because of their office, are authorized to commit acts that would be tortious if a private actor committed them. The cases cited in Odom —as well as Odom itself—are almost all cases involving suits against police officers or other public safety officials. And, by virtue of their office, these officials have a broader license to perform acts that would be torts if a private actor did them—but only if the official does them in good faith. Thus, as we held in Firestone v Rice , 71 Mich. 377, 384, 38 N.W. 885 (1888), "[t]here must be some discretion reposed in a sheriff or other officer, making an arrest for felony, as to the means taken to apprehend the supposed offender," the propriety of which should not "be passed upon by a court or jury unless it has been abused through malice or wantonness or a reckless indifference to the common dictates of humanity." Here, nothing about the nature of the office of an assistant prosecutor gives the officeholder a license to commit intentional torts such as those alleged in this case against coworkers, and I therefore think that the "good faith" standard from Odom is simply inapplicable. That said, we have not had occasion to recognize this distinction before, so I do not fault the majority for relying on the Odom "good faith" standard in the instant case.

As to plaintiff's claims under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. , I mostly agree with the result reached by the Court—resuscitating her WPA claim—although I disagree with its reasoning. The Court holds that "there was sufficient evidence that [plaintiff] reported actual or suspected violations of the law" because "[w]hether there were actual violations of the law under these statutes is not dispositive, as the WPA also protects those who report suspected violations of the law." This Court has never held this before, and in fact expressly declined to make such a holding in Debano-Griffin v Lake Co , 486 Mich. 938, 782 N.W.2d 502 (2010). I think making such a holding today is misguided. The statute defines as protected activity a report of "a violation or a suspected violation of a law," MCL 15.362, but it does not protect reporting a suspected violation of a suspected law. In other words, while the statute accepts uncertainty—a violation need only be suspected to be reportable and protected—this should be construed as factual uncertainty, not legal uncertainty. In other words, for a plaintiff to make a report that qualifies for WPA protection, the plaintiff need not know with certainty that the activity reported actually occurred , but the plaintiff does need to demonstrate that if those facts actually occurred, they would definitely be a violation of the law. To hold otherwise would allow plaintiffs to receive protection for reporting violations of imaginary laws, which I do not think the WPA contemplates—even if a reasonable person might believe such a law exists. To the extent it holds to the contrary, I disagree with Melchi v Burns Int'l Security Servs., Inc. , 597 F.Supp. 575 (E.D.Mich., 1984), and it is not binding on this Court in any event.

As a result, I do not think this Court can avoid deciding whether the facts alleged by plaintiff would qualify as a violation of the law. She alleges that she reported to her superiors violations of MCL 780.756(3) and MCL 711.1(1). I agree with the outcome reached by the Court of resuscitating her WPA claim under MCL 780.756(3) because I believe what plaintiff alleges qualifies as a violation of the statute. It provides:

Before finalizing any negotiation that may result in a dismissal, plea or sentence bargain, ... the prosecuting attorney shall offer the victim the opportunity to consult with the prosecuting attorney to obtain the victim's views about the disposition of the prosecution for the crime, including the victim's views about dismissal, plea or sentence negotiations ....

In this case, as it happens, the facts are essentially undisputed. While plaintiff was on honeymoon her supervisor entered into a plea agreement with a criminal defendant to plead the charges he faced for first-degree criminal sexual conduct (CSC) down to CSC-III and be sentenced to time in the county jail and probation. Her...