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Gamrat v. Allard

United States District Court, W.D. Michigan, Southern Division

March 15, 2018

CINDY GAMRAT, Plaintiff,
v.
KEITH ALLARD, et al., Defendants.

          OPINION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         Plaintiff, Cindy Gamrat, a former Michigan legislator, has sued a number of Defendants alleging various claims arising out of her expulsion from the Michigan House of Representatives and events preceding and following her expulsion. Defendants include (among others) the Michigan House of Representatives, Edward McBroom, Tim Bowlin, Kevin Cotter, Brock Swartzle, and Hassan Beydoun (collectively referred to as the “House Defendants”); Norm Saari; and Keith Allard and Benjamin Graham. Gamrat alleges a claim under 42 U.S.C. § 1983 for violation of her right to procedural due process, a claim for violation of the Electronic Communications Privacy Act (federal wiretapping act), 18 U.S.C. §§ 2511 and 2520, and various state law claims. The House Defendants and Saari have moved to dismiss Gamrat's claims pursuant to Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Allard and Graham move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).

         In the course of the briefing, Gamrat has agreed to dismiss her defamation claim against all Defendants and to dismiss her malicious prosecution/abuse of process claims against Saari, Allard, and Graham. Therefore, those claims will be dismissed with prejudice against the appropriate Defendants.

         The Court heard oral argument on the motions to dismiss on March 5, 2018. For the following reasons, the Court will grant Defendants' motions and dismiss all claims, except those against Defendants Joseph Gamrat and David Horr.

         I. BACKGROUND

         On November 4, 2014, Gamrat won the general election for State Representative of Michigan's 80th District and Todd Courser won the general election for State Representative of Michigan's 82nd District. Gamrat and Courser ran as Tea Party candidates on conservative platforms that included “advocating for lower taxes, less spending, and transparency in government.” (ECF No. 20 at PageID.115.)

         During the period in question, Defendants Cotter and McBroom were State Representatives, and Cotter was also the Speaker of the House. Defendant Bowlin was the Business Director and Chief Financial Officer for the House. Defendant Swartzle was General Counsel for the House and Cotter's Chief of Staff. Defendant Saari was Cotter's Chief of Staff until approximately August 2, 2015. Defendant Beydoun was the House Majority Legal Counsel. Defendants Allard, Graham, and Cline had served on Gamrat's and Courser's campaigns as volunteers or paid political consultants and, following the election, served as staffers in Gamrat's and Courser's offices. (Id. at PageID.116-17.) Defendant Joe Gamrat was Gamrat's husband, and Defendants David Horr and Vincent Krell are two individuals whom Gamrat alleges were conducting surveillance on her.[1]

         Following the election, Gamrat and Courser agreed to a staff sharing arrangement in which Allard, Graham, and Cline served as staff members in both districts and worked out of both Gamrat's and Courser's separate offices. (Id. at PageID.117.) In addition, at some point Gamrat and Courser, both of whom were married, began a sexual affair. On several occasions between January 2, 2015, and July 6, 2015, Allard, Graham, and Cline began reporting perceived misconduct by Gamrat and Courser to members and staff of the House leadership, including Defendants Saari, Swartzle, and Cotter. One such report included an incident in which Courser asked Graham to send a “false flag” email that would serve as a “controlled burn” to “inoculate the herd”-in other words, to serve as cover for the affair. The email that Courser or someone on his behalf had authored contained a number of outlandish, untrue, and salacious allegations about Courser. Courser hoped that the email would create such a stir that any facts that came out about the affair would be ignored as an exaggeration or seen as a smear campaign. Graham refused to send the email, but Courser found someone else to send it.

         On July 6, 2015, Gamrat met with Bowlin about issues concerning Allard and Graham (Cline had previously resigned on April 14, 2015). (Id. at PageID.121, 123.) Following that meeting, Bowlin terminated Allard's and Graham's employment. (Id. at PageID.123.) After the termination, Allard and Graham told Bowlin about their prior reports to Swartzle, Saari, and Cotter. When the House leadership failed or refused to investigate, Allard and Graham provided their information to the Detroit News. On August 7, 2015, the Detroit News ran a story about the affair and Courser's “false flag” email, and alleged that Gamrat and Courser misused taxpayer money to cover up their affair.

         The same day the Detroit News article ran, Cotter requested Bowlin to investigate and prepare a report on alleged misconduct by Gamrat and Courser. On August 31, 2015, the House Business Office (HBO) issued a report concluding that further investigation by the House was warranted. On August 19, 2015, before Bowlin had completed the HBO report, the House adopted Resolution 129 to form a Select Committee to examine the qualifications of Gamrat and Courser and to determine their fitness to continue holding office. (ECF No. 24-2 at PageID.305.) The Select Committee was composed of six members, four from the Republican Caucus and two from the Democratic Caucus. Defendant McBroom chaired the Select Committee.

         On September 8, 2015, the HBO and the Office of the General Counsel issued a “Combined Statement, ” which set forth the facts uncovered during the investigation. The Combined Statement concluded with the recommendation that Gamrat not be expelled but censured with severe conditions attached. (ECF No. 24-4 at PageID.349.) The following day, McBroom introduced House Resolution 141, which was referred to the Select Committee and reported with recommendation and without amendment. As originally introduced, HR 141 specified that Gamrat be expelled for misconduct in office and for misuse of state resources, but made no mention of a criminal investigation. (ECF No. 24-5.) However, on September 11, 2015, Democratic Representative Andy Schor introduced a resolution to request that the Michigan Attorney General and the Michigan State Police investigate the behavior and conduct of Courser. (ECF No. 24-6.) The same day, Democratic Representative Winnie Brinks moved to amend HR 141 to request that the Michigan Attorney General and the Michigan State Police investigate the behavior and actions of Gamrat and that a copy of the unredacted report and the entire evidentiary record be provided to the Michigan Attorney General and the Michigan State Police. (ECF No. 24-7.) Upon a vote, ninety-one Representatives voted in favor of the amendment. The House then passed HR 141, expelling Gamrat, on a 91 to 12 vote.

         Gamrat filed her initial complaint in this case pro se, but failed to serve it. Subsequently, certain Defendants moved to dismiss the case for lack of prosecution. Gamrat responded through counsel, requesting additional time to file an amended complaint. The Court granted Gamrat thirty days to file an amended complaint. Gamrat thereafter filed an amended complaint removing certain Defendants and adding others and adding new claims.

         II. MOTION STANDARD

         Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Detailed factual allegations are not required, but “a plaintiff's obligation to provide the ‘grounds' of h[er] ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103 (1957)). The court must accept all of the plaintiff's factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). Although the plausibility standard is not equivalent to a “‘probability requirement, ' . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. at 679, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

         Although a court is generally limited to the pleadings in deciding a motion to dismiss under Rule 12(b)(6), see Fed. R. Civ. P. 12(d), a court may consider various documents without converting the motion to a motion for summary judgment. “When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) (citation omitted).

         III. DISCUSSION

         A. House Defendants' Motion

         1. Eleventh Amendment Immunity

         The individual House Defendants argue that they are entitled to sovereign immunity under the Eleventh Amendment. Because the Court concludes that Gamrat's § 1983 claim is barred by absolute legislative immunity and qualified immunity, the Court need not address this argument as it pertains to the individual House Defendants sued in their individual capacities. As for the House, however, Eleventh Amendment immunity applies to all claims. Under the Eleventh Amendment, a state and its agencies generally are immune from private lawsuits in federal court. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568 (1977). “This immunity is far reaching. It bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments.” Thiokol Corp. v. Dep't of Treasury, 987 F.2d 376, 381 (6th Cir. 1993) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 908 (1984)). Accordingly, Gamrat's claims against the House will be dismissed.[2]

         2. Due Process Claim

         Count I alleges that the House Defendants violated Gamrat's right to procedural due process in connection with the investigation and her expulsion. Although Gamrat alleges that she had a constitutionally-protected interest in state employment, by her own admission, Gamrat was an elected official, not a state employee, and her claim will be analyzed as such. The House Defendants argue that they are entitled to both absolute legislative immunity and qualified immunity on Gamrat's § 1983 due process claim.

         Legislative Immunity

         Pursuant to the Speech or Debate Clause, defendants who engage in legislative activities are absolutely immune from suit in their individual capacities. The Speech or Debate Clause provides that “for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other place.” The Speech or Debate Clause serves “to prevent intimidation by the executive and accountability before a possibly hostile judiciary.” United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755 (1966). The clause provides protection not “simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.” United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535 (1972). Although the federal Speech or Debate Clause does not protect state legislators, Michigan has such a clause in its Constitution, and the Supreme Court has extended legislative immunity to state and local legislative bodies. Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788 (1951).

         “Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44, 54, 119 S.Ct. 966, 972 (1998) (internal quotation marks omitted). To determine whether an act falls within this sphere, a court must examine “the nature of the act, rather than . . . the motive or intent of the official performing it.” Id. at 54, 118 S.Ct. at 973. The question is whether the activity is

‘an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.'

Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504, 95 S.Ct. 1813, 1821-22 (1975) (quoting Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627 (1972)).

         Apart from words spoken in a debate, the Speech or Debate clause extends to “written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting.” Kilbourn v. Thompson, 103 U.S. 168, 204 (1880). In addition, “committee hearings are protected, even if held outside the Chambers.” Hutchinson v. Proxmire, 443 U.S. 111, 124, 88 S.Ct. 2675, 2683 (1979); see Walker v. Jones, 733 F.2d 923, 929 (D.C. Cir. 1984) (noting that legislative activity includes “participation in committee investigations, proceedings, and reports”). Legislative immunity extends beyond legislators to legislative aides and counsel. Eastland, 421 U.S. at 507, 95 S.Ct. at 1823; see Ellis v. Coffee Cnty. Bd. of Registrars, 981 F.2d 1185, 1192 (11th Cir. 1993) (noting that ...


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