Author(s): John J. Gillooly, Rosalind Rochkind, Michael Edmunds

From the Editor by
John J. Gillooly

Complimentary Seminars. For more than 60 years, Garan Lucow Miller has been providing its clients with effective and efficient solutions to their legal needs. There is a way we can work together to prevent unnecessary litigation and it is entirely free.

Members of Garan Lucow Miller are on the road nearly every month educating leaders in government, business and the insurance industry about current trends in the law. Our complimentary seminars are widely known as an important tool in recognizing legal trends.

There are two municipal seminars sponsored by the Michigan Municipal League that may be of interest to you. On September 20, 2005 in Grand Rapids, we will offer a comprehensive overview of the Freedom of Information Act. On September 21, 2005, we will meet with purchasing officers from across the state to discuss public contracts including issues on how to transfer risk from a municipality to an outside contractor.

Each of the seminars is done in conjunction with the 107th Annual Michigan Municipal League Convention, held September 20-23, 2005 in Grand Rapids.

Please feel free to call me directly for more details at 313.446.5501. Have a great summer.

IN MEMORIAM

We are saddened to announce that Joe Kochis passed away on July 2, 2005. Joe was 58 years old and died as a result of complications from cancer. He is survived by his wife Cathy, and their children Daniel, Michael, and Sarah.

For over 30 years Joe has been an active and vibrant member of the Garan Lucow Miller family. He took great pride in being a lawyer and always felt it an honor to represent those of you who were privileged to retain Joe as your counsel. He was always very grateful for the trust that many of you showed in him and fully understood the great responsibility that comes with being your legal counsel. For those of you who sent a card, said a prayer, or took a moment to think of him and his family during the time he battled his terrible illness, he was deeply touched and very thankful.

Your thoughts and prayers to Joe’s family are welcome and greatly appreciated.

– Garan Lucow Miller

School’s Out – The Court’s Term is Not Far Behind by Rosalind Rochkind

Summer is a good time to look back on the terms of the United States and Michigan Supreme Courts, because arguments are over, the Courts’ terms are over, and the opinions are rolling off the press. Although the United States Supreme Court has issued many notable opinions, we call your attention to three concerning alleged violation of the Fourth Amendment, as well as one discussing, and rejecting, an alleged “property” right to enforcement of a personal protection order:

A unanimous opinion was released in Devenpeck v. Alford, ___ US __; 125 S Ct 588; 160 L Ed 2d 537 (2004), where the Court considered whether there could be a Fourth Amendment violation where there was probable cause to arrest for an offense, but where this was not the offense articulated by the officer at the time of the arrest. Rejecting the argument that the Fourth Amendment was violated unless the two offenses were “closely related”, the Court reaffirmed its prior holdings that an arresting officer’s state of mind is generally irrelevant to the existence of probable cause, noting that the officer’s ”subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” In other words, as long as there is probable cause to arrest for some offense, it matters not that there is no probable cause for the stated offense.

In Illinois v. Caballes, ___ US ___; 125 S Ct 834; 160 L Ed2d 842 (2005), the Court considered the Fourth Amendment implications of a legal traffic stop, and a subsequent “dog sniff” that detected the presence of marijuana. In the criminal proceedings that ensued, the defendant sought the suppression of the evidence discovered by the dog, claiming that there had been no specific and articulable reason to suspect drug activity.

  • The Court held that where the initial traffic stop was legal, it was not rendered illegal by the subsequent “dog sniff”, as long as the stop was not prolonged beyond the time reasonably required to issue the ticket, observing that the ”dog sniff” did not, itself, implicate Fourth Amendment rights: ”A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”
  • Since the “dog sniff” did not, standing alone, violate the Fourth Amendment because there was no reasonable expectation of privacy relating to the possession of illegal material, the Fourth Amendment was implicated only if the use of the dog sniff prolonged the original search and seizure (the traffic stop), thereby rendering it illegal. Building on its opinion in Illinois v. Caballes, supra, in Muehler v. Mena, ___ US ___; 125 S Ct 1465; 161 L Ed 2d 299 (2005), the Court applied similar reasoning to a case brought under 42 USC §1983, where it was asked to address the Fourth Amendment implications of the detention, handcuffing, and questioning of an occupant of a home during the execution of a properly obtained search warrant. The Court held that, under the circumstances presented, where the search warrant included a search for weapons, the Fourth Amendment was not violated.
  • Applying a case-by-case balancing of factors, the Court acknowledged that the Fourth Amendment was relevant to the detention and handcuffing of the occupant, but found no violation during the 2 to 3 hour period involved.
  • The right to execute a search warrant included the right to detain occupant.
  • The right to detain included the authority to exercise reasonable force to do so.
  • However, the Court found that the questioning of the occupant concerning her immigration status was not, itself, a “seizure” under the Fourth Amendment.
  • As long as the questioning did not extend the duration of the permissible search, thereby rendering the search illegal, there was no Fourth Amendment violation. On June 27, 2005, the Court released its opinion in Town of Castle Rock, Colorado v. Gonzales, (2005 WL 1499788), in which it considered an issue left open in

DeShaney v. Winnebago County Dept of Social Services, 489 US 189; 109 S Ct 998; 103 L Ed2d 249 (1989). In DeShaney, the Court had held that there was no substantive due process right to state protection from the invasion of life, liberty or property rights by private actors. In Gonzales, the Court considered where there was a procedural due process claim premised on the failure of the police department to enforce personal protection orders. The majority concluded that no constitutionally cognizable property interest existed in the enforcement of a restraining order, and thus no procedural due process claim was asserted premised on the failure to enforce a restraining order when that failure arguably led to the deaths of three children taken in violation of the order:

In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as “‘a font of tort law.’” * * *

The Court did note, however, that while the 14th Amendment did not provide a basis for holding police departments accountable for such failures, there was nothing preventing state law from providing such a remedy.

Supreme Court Allows Harassment Claim Against Employee by Michael Edmunds

The Michigan Supreme Court has issued another landmark employment opinion which reverses well-established precedent. Issued on June 1, 2005, Elezovic v. Ford Motor Co., 472 Mich 408 (2005) overruled the 2002 Court of Appeals Opinion of Jager v. Nationwide Truck Brokers, Inc., 252 Mich App 464 (2002).

In Jager, the Court of Appeals held that there is no cause of action against an individual under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. In reaching its conclusion, the Jager court relied on federal cases interpreting Title VII of the Federal Civil Rights Act, the analogous federal statute to the CRA.

The CRA prohibits employers from discriminating on the basis of membership in certain classifications. In Elezovic, the Court noted that the CRA, at MCL 37.2201(a), defines employers to include “an agent” of the employer. It was not a difficult leap for the Court to find that since “employer” includes “agents of the employer”, that the statute can give rise to a cause of action against individuals. Elozovic found that the Jager court erred in relying upon federal precedent because of differences in the language used in Title VII versus the CRA.

The Court did not answer the question of who may be considered an agent of an employer. Therefore, employers should continue to pursue summary disposition of claims against individuals on the basis that the individual was not an “agent” of the employer, either because they were in a non-supervisory capacity or were acting outside the course and scope of their employment.

The Court’s decision in Elezovic should serve as a reminder that all employers, including municipalities, should establish written employment policies that include, at a minimum, anti-harassment and anti-discrimination provisions, and that employers review these policies periodically with all employees, including supervisors. Clear policies and handbooks help ensure that employees know what is expected of them. Repetitive training of supervisors in these policies is necessary to reduce the chance that the employer and supervisor will be sued. Written job descriptions help define who is a supervisor and what sort of activities are within the course and scope of a person’s employment.

HEADS UP!

As a matter of Fifth Amendment right, Garrity precludes use of public employees’ compelled incriminating statements in a later prosecution for the conduct under investigation. Garrity v. New Jersey, 385 U.S. 493 (1967). However, Garrity does not preclude use of such statements in prosecutions for the independent crimes of obstructing the public employer’s investigation or making false statements during it. United States v. Veal, 153 F.3d 1233 (11th Cir. 1998), cert. denied, 526 U.S. 1147 (1999).