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Margaris v. Genesee County

Court of Appeals of Michigan

May 3, 2018


          Genesee Circuit Court LC No. 15-105802-CZ

          Before: Servitto, P.J., and Markey and O'Connell, JJ.

          PER CURIAM.

         Plaintiff appeals by right the trial court's grant of summary disposition in favor of defendants, Genesee County, Sheriff Robert Pickell, and Undersheriff Christopher Swanson, pursuant to MCR 2.116(C)(7) (claim barred by immunity), MCR 2.116(C)(8) (failure to state a claim), and MCR 2.116(C)(10) (no genuine issue of material fact). The trial court ruled that governmental immunity applied because Pickell was acting in his capacity as the sheriff at all times, and Swanson was acting within the bounds of his authority. The trial court further concluded that defendant Kosta Popoff, owner of the Starlite Diner, Inc., was a victim under the circumstances and acted with good character in trying to resolve a conflict.[1] We affirm.

         Plaintiff was the owner of another restaurant. An employee at Starlite informed Popoff that one of plaintiff's intermittent employees, Mike Jacques, who used to work for Starlite, was stealing meat from Starlite and selling it to plaintiff. Popoff informed Pickell. Pickell's department investigated and performed a sting operation in which plaintiff purchased three boxes of meat that were supplied to Jacques by Popoff. After plaintiff's arrest, Swanson facilitated an agreement for plaintiff to pay $1, 800 in restitution, and the case would not be prosecuted. Plaintiff filed claims alleging that defendants committed fraud by misrepresenting facts in order to extort money from plaintiff and for intentional infliction of emotional distress, conversion, discrimination, harassment, and civil conspiracy.

         Plaintiff argues on appeal that the trial court erred by granting summary disposition pursuant to MCR 2.116(C)(7) because Pickell's actions were not within the scope of his executive authority, and Swanson acted in bad faith. We disagree.

         This Court reviews de novo the applicability of governmental immunity as a question of law. Herman v Detroit, 261 Mich.App. 141, 143; 680 N.W.2d 71 (2004). In reviewing a motion for summary disposition based on immunity, MCR 2.116(C)(7), this Court considers the affidavits, depositions, admissions, and other documentary evidence to determine whether movant is entitled to immunity as a matter of law. Tarlea v Crabtree, 263 Mich.App. 80, 87; 687 N.W.2d 333 (2004). The evidence is viewed in a "light most favorable to the nonmoving party, " and "all legitimate inferences in favor of the nonmoving party" are drawn. Jackson v Saginaw Co, 458 Mich. 141, 142; 580 N.W.2d 870 (1998).

         Governmental immunity from tort liability is governed by the operation of MCL 691.1407. Under § 7, immunity is broadly interpreted, and exceptions to it are narrowly construed. Frohriep v Flanagan, 275 Mich.App. 456, 468; 739 N.W.2d 645 (2007), rev'd in part on other grounds 480 Mich. 962 (2007). Governmental immunity is a characteristic of government, and plaintiffs bringing suit against the government must plead to avoid the government's immunity. Odom v Wayne Co, 482 Mich. 459, 478-479; 760 N.W.2d 217 (2008).


         When a defendant invokes individual governmental immunity, the court must first determine whether the individual is entitled to absolute immunity as a high level executive official under MCL 691.1407(5). High level executive officials "may qualify for absolute immunity because they have broad-based jurisdiction or extensive authority similar to that of a judge or legislator." Harrison v Director of Dep't of Corrections, 194 Mich.App. 446, 451; 487 N.W.2d 799 (1992). To benefit from the immunity granted to highly ranked officials, an individual must be a judge, a legislator, or the highest executive official in the level of government in which he is employed. See Eichhorn v Lamphere School Dist, 166 Mich.App. 527, 538; 421 N.W.2d 230 (1988). Here, Pickell was the sheriff of Genesee County. A county sheriff is entitled to high-level governmental immunity. See Bennett v Detroit Police Chief, 274 Mich.App. 307, 313-314; 732 N.W.2d 164 (2006) (concluding that the chief of police was entitled to governmental immunity). The sheriff is the highest elected official and executive officer of the county's law enforcement. See Const 1963, art 7, § 4. Because the allegations against Pickell involved his acting in his capacity as sheriff, he is entitled to absolute immunity if he was acting within the scope of his executive authority.

         Whether the highest executive official of local government was acting within his authority depends on a number of factors, including the "nature of the specific acts, " the "position held by the official, " the "local law defining the official's authority, " and the "structure and allocation of powers in the particular level of government." Bennett, 274 Mich.App. at 312 (citation omitted). Here, plaintiff argues that Pickell was not acting within his authority because he was acting as a debt collector for a private citizen and his political supporter, Popoff, rather than serving a law enforcement function. But there was no evidence of an intentional transaction between Popoff and plaintiff for which plaintiff incurred a debt to be collected.

         MCL 51.76(2)(b) provides that the sheriff is responsible in part for "[e]nforcing the criminal laws of this state, violations of which are observed by or brought to the attention of the sheriff's department while providing the patrolling and monitoring required by this subsection." Here, Pickell was dining at the restaurant belonging to his friend and political supporter, Popoff, when Popoff informed him that he learned that an ex-employee had been selling plaintiff meat stolen from his restaurant. Pickell directed Swanson to investigate. He did so by interviewing those involved and by the sheriff's department initiating an undercover operation where Jacques sold meat from Popoff to plaintiff.[2] Plaintiff was arrested after buying the meat from Jacques. The investigating officer, William Lanning, spoke to the assistant prosecutor, Timothy Bograkos, to request an arrest warrant, and Bograkos spoke to the county prosecutor, David Leyton. Pickell and Swanson met with Leyton to request resolution of the case through restitution instead of prosecution, as Popoff favored restitution. Swanson met with plaintiff, and they reached an agreement in which plaintiff paid $1, 800 to Popoff, and Popoff would not seek prosecution.

         Thus, Pickell's activities of receiving information about a theft crime, conducting an investigation, suggesting restitution rather than prosecution, and authorizing Swanson to speak with plaintiff about restitution were in the framework of investigating crimes and enforcing the law in Genesee County, all of which were his responsibilities as sheriff. Because Pickell was acting in the scope of his executive authority as sheriff, he was entitled to immunity.

         Plaintiff argues that the sheriff's department was collecting a debt from plaintiff, and debt collection was not within the executive authority of Pickell. Pickell characterized the resolution of the matter as plaintiff's paying restitution for a wrongdoing, not satisfying a debt for money owed. The sheriff's department had experience at resolving complaints through restitution whether through its consumer's protection bureau for consumer issues or after investigating criminal matters. Pickell believed that it was the right of the sheriff to attempt to settle a dispute and perhaps avoid prosecution. Leyton believed that it was proper for the victim of a crime to settle the case through restitution and that Swanson had assisted with resolving other cases similarly. Bograkos said it was common to resolve a case such as this with restitution. Popoff said that after the sheriff's department asked him about resolving the situation, his attorney told him that the police frequently used a civil remedy to work out a complaint. Popoff recalled that the local police previously worked out restitution, rather than prosecution, for a person who vandalized his restaurant. Popoff said that he did not wish to harm plaintiff or his business, but he did wish to receive restitution for the meat that was stolen.

         Plaintiff argues that the money that plaintiff paid could not have been restitution because Pickell and Swanson knew that plaintiff was not going to be prosecuted before plaintiff agreed to pay the money. Plaintiff states that Pickell and Swanson knew that plaintiff was not going to be prosecuted because former County Commissioner Jamie Curtis stated that she heard Leyton report that he told Pickell and Swanson ...

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