Author(s): John J. Gillooly, Bennet Bush

From the Editor

by John J. Gillooly

Campaign Reminders

In just a few days, people around the state will travel to their local polling places to exercise their privilege to vote. Just several days later, if history repeats itself, several lawsuits will be filed alleging illegal use of municipal facilities or equipment in connection with the elections. Most cases are brought under the Michigan Campaign Finance Act and are often very politically charged and should be avoided.

Following these basic ground rules will go a long way toward protecting you and your municipality:

  • It is not proper to use or authorize the use of public funds or resources to make an election contribution.
  • The act also provides that personnel, office space,computers and postage may not be used.
  • A recent Court of Appeals decision allowed sanctions to be imposed against the losing party in an election case.

Garan Lucow Miller is pleased to assist your community with its election processes. Let us help you understand and comply with the Campaign Finance Act.

Breaking News!!

The Sixth Circuit’s June 21, 2007 published Opinion in Draw v City of Lincoln Park confirmed that bad facts do not always make bad law. Indeed, these cases can clarify the line (often ignored by claimants) between negligent, and even irresponsible behavior, and conduct that is constitutionally tortious and may give rise to liability under 42 U.S.C. §1983. Both Draw and the earlier Sixth Circuit opinion in Jones v Reynolds, 438 F.3d 685 (6th Cir 2006), discussed the viability of §1983 claims against police officers that arose as a result of injuries sustained when illegal drag race drivers lost control of their vehicles and crashed into a crowd of spectators. The allegations against the officers were that they were present before the race started and that their mere presence was sufficient to have stopped the race, but that the officers actually encouraged the race to proceed, telling the organizers to proceed and playing music and possibly placing a bet on the outcome.

In Jones, the Court held that these facts did not implicate the constitutional rights of a fatally injured spectator on a claim premised on the “state created danger” doctrine derived from a phrase used in the United States Supreme Court’s opinion in DeShaney v Winnebago County Department of Social Services, 489 U.S. 189 (1989), which opinion generally held that the State has no duty to protect its citizens against third-party violence. In Draw, the Court rejected the invitation to disagree with the Jones analysis or to request en banc review of the issue.

Significantly, the Draw Court also addressed the alternate “direct injury” theory of liability premised on County of Sacramento v Lewis, 523 U.S. 833 (1998), the viability of which had arguably been left open in Jones.

Rejecting this theory under the circumstances presented, the Court held that the conduct, although “reprehensible” and “irresponsible”, did not lend itself to a constitutional claim because there was no evidence of a purpose or intent to cause harm. In so doing, the Court also rejected the plaintiff’s attempt to impute the conduct of the drag race drivers onto the officers noting that, even assuming that the facts could support a conspiracy theory, the underlying conduct – drag racing – did not implicate constitutional concerns. And, in any event, the Court held that the officers’ conduct was not sufficiently egregious to meet the high threshold of a substantive due process violation.

These cases serve to remind us that the remedy provided by 42 U.S.C. §1983 is a relatively narrow one, reserved for conduct that rises to the level of constitutional wrongdoing and not merely tortious wrongdoing committed by state actors.

The officers in both the Jones and Draw cases were represented by John Gillooly at the trial court level and Rosalind Rochkind at the appellate level.

Municipal Law Update

by Bennet Bush

Trespass-Nuisance
Plaintiffs sued defendant municipality claiming that odors from its expanded wastewater treatment plant negatively impacted their business and constituted a “trespass and/or trespass/nuisance and/or nuisance per se.” Previously, the municipality had expanded the plant to allow it to accept waste from a neighboring township. Because the defendant expanded the plant to accept waste from the neighboring community and charged that community a fee for accepting the waste, plaintiffs argued that operation of the plant was a proprietary function for which defendants did not have governmental immunity. The Court of Appeals held that it was not a proprietary function because the plant was not operated for the primary purpose of producing a profit. The fees and charges collected for wastewater treatment were not placed in defendant’s general fund or used to fund activities other than the operation of the plant. Moreover, defendant’s charter provided that the rates charge to users of the system were to be only those fees necessary for the operation and maintenance of the system. Finally, under the contract between the defendant and the neighboring township, the fees collected for the use of the system were only to be used for operation and maintenance of the plant and could not be used to fund unrelated activities. R.J. Inn, Inc. v Howell, unpublished opinion per curiam of the Court of Appeals, issued March 6, 2007 (Docket No.271852).

Plaintiffs-decedents leased an apartment from defendants
City of Detroit and Detroit Housing Corporation. Because of faulty wiring in the walls, a fire started in their apartment causing their deaths. Following the fire, the personal representative brought a claim for trespass nuisance. A cause of action for trespass nuisance requires plaintiff to show trespass or any other physical intrusion into the property on the part of the defendant. In dismissing the claim, the Michigan Supreme Court found that, because the fire started between the walls of the leased apartment and the lease of the apartment included the walls of the apartment, there was no trespass or any other physical intrusion into the apartment on the part of defendant. Plaintiffs, and the dissent, argued that, pursuant to the lease, plaintiffs had no right to repair the space between the walls without consent, which meant that the space was not part of their leased premises. In rejecting this argument, the court noted that the lease provision did not exclude from the lease the space within the walls, it merely regulated the lessee’s activities with respect to this space. McDowell v City of Detroit, 477 Mich 1017 (2007).

Building Inspectors Owe Duty
The Court of Appeals has ruled that building inspectors owed a duty to a property owner with regard to an inspection. Plaintiffs were remodeling their resort by placing gas fireplaces in the rooms. The model recommended by plaintiff’s contractor was one that Michigan code prohibited from being used in sleeping areas. Nonetheless, when defendant inspectors came out to the property for their initial inspections at the “rough-in” stage, they approved all of the units. However, at the final inspection, they failed the fireplaces for not being “sealed units.” Plaintiffs alleged that defendants breached their duty to plaintiffs and were grossly negligent in approving the fireplaces at the rough inspection stage even though they were prohibited by Michigan code. The court held that the Inspectors owed a duty to the plaintiff at the rough-in inspection to approve only fireplaces that were code-compliant. In making their holding, the court noted that the inspectors owed the plaintiffs a duty because the evidence established that plaintiff had personal contact with the defendant inspectors and relied on them in approving the fireplaces at the rough-in inspection. Furthermore, the record established that plaintiff relied on the approval to its detriment and completed the installation. The court also found that there was a question of fact as to whether the inspectors were grossly negligent in approving the fireplaces and whether that conduct was the proximate cause of plaintiff’s damages. Bayberry Group, Inc. v Novak, unpublished opinion per curiam of the Court of Appeals, issued March 22, 2007 (Docket No. 271463).

Police Officer’s Liability and Immunity
Plaintiff was arrested by officers in Van Buren Township for shoplifting a drill from Meijer. After claiming to have seen plaintiff leave the store without paying for a drill, the security guards called the police, who went to plaintiff’s home to question him regarding the suspected retail fraud. The officers were told that plaintiff left the store without paying for the drill. Upon request, the plaintiff was unable to locate the receipt. When plaintiff was returned to the store, it was discovered he had in fact paid for the drill. Plaintiff then brought suit against Van Buren Township and the individual officers, Meijer Inc.,   and the individual security guards. In his claim against the governmental defendants, plaintiff alleged false arrest and imprisonment, violation of 42 U.S.C. § 1983, and other state law claims relating to the arrest. In dismissing plaintiff’s claim against the municipality and officers, the United States Court of Appeals found that, under the circumstances, the governmental agency and officers had not violated plaintiff’s constitutional rights because they had probable cause to arrest. There was no indication that the representatives of Meijer were unreliable and the officers had been told that plaintiff left the store without paying, plaintiff admitted that he had just been at Meijer, and plaintiff could not produce a receipt. Likewise, plaintiff’s state law claims against the officers, false arrest, false imprisonment and malicious prosecution, were also dismissed as the officers had probable cause to arrest. Boykin v Van Buren Township, _____ F3d ____ (CA6, 2007).

Plaintiff was arrested and prosecuted for possession of a controlled substance. Plaintiff also alleged that defendant police officers “assaulted, battered, and molested her after finding marijuana and pills in her car. Plaintiff brought claims against the officers alleging false arrest, false imprisonment, malicious prosecution and excessive force against the police officers. Defendants brought a motion to dismiss which was granted. Plaintiff argued that the trial court erred in dismissing the action because she was not doing anything wrong when she was stopped, she did not consent to the search of her vehicle and the police searched it without probable cause. The Court of Appeals dismissed plaintiff’s claims of false arrest and imprisonment and malicious prosecution because there was probable cause and there was no malice. The court stated that malice can only be inferred when there is an absence of probable cause. Finally, the court also affirmed the dismissal of plaintiff’s excessive force claim where her only allegation was that the handcuffs were pinching her and the officer refused to loosen them. The court stated, as a matter of law, that the use of handcuffs does not constitute unreasonable force. Maye v Krutell, unpublished opinion per curiam of the Court of Appeals, issued March 27, 2007 (Docket No. 272304).