MSC will revisit motivation issue in whistleblower claim

The Michigan Supreme Court will decide whether claims filed under the Whistleblower Protection Act rise or fall depending on what motivated the suit — the “desire to inform the public about matters of public concern” or “personal vindictiveness.”

In the process, the MSC will take a second look at a 15-year-old precedent, Shallal v. Catholic Social Services of Wayne Co., 455 Mich. 604 (1997).

The case under review is the Michigan Court of Appeals decision in Whitman v. City of Burton, et al. (majority opinion) (dissent)

In 2007, the city of Burton declined to reappoint Bruce Whitman as police chief. The city provided a laundry list of reasons for the decision: morale problems in the police department; inadequate discipline of officers; misuse of department email; playing favorites; not responding to a police harassment complaint; and providing the city council with misleading budget reports.

Whitman claimed something else was going on. Three years earlier, he had asserted his rights under a city ordinance to be paid for unused leave time. He did so despite an informal agreement, memorialized in a memo from the mayor, that city administrators would use leave time during the year rather than accummulating it. When the city balked at Whitman’s demand to be paid, he threatened criminal action. The city relented and cut a check for $6,984.

Following his non-reappointment, Whitman sued the city under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. The jury found for Whitman. The trial court denied the city’s motion for judgment NOV.

In a split decision, the Court of Appeals reversed. Judge Henry Saad, joined by Judge Peter O’Connell, ruled that Whitman’s claim was “not actionable.”

In demanding payment under the ordinance for his sick and personal hours — a payment the cash-strapped city could ill-afford — plaintiff was decidedly not acting in the public interest, but in the thoroughly personal and private interest of securing a monetary benefit in order to maintain his “life style.”

Plaintiff’s claim is not actionable under the WPA because his complaint amounted to a private dispute over plaintiff’s entitlement to a monetary employment benefit. Moreover, plaintiff acted entirely on his own behalf. Indeed, nowhere in the voluminous record “is there any indication that good faith or the interests of society as a whole played any part in plaintiff’s [threatened] decision to go to the authorities.” …

To the contrary, plaintiff asserted his own entitlement to payment and he dropped his threat of legal action when he received his money. Under these facts, no reasonable juror could conclude that plaintiff threatened to prosecute defendants “out of an altruistic motive of protecting the public.” Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 622; 566 NW2d 571 (1997).

Judge Jane Beckering dissented. Beckering said that in Shallal, the plaintiff knew about the employer’s alleged violations of the law for several years and threatened to make a report only after job security issues arose. Whitman’s situation is different, Beckering argued.

[A]lthough plaintiff had personal reasons for desiring Ordinance 68C to be enforced, i.e., his own financial status, a reasonable juror could have concluded that he also acted as an officer of the law attempting to have the ordinance enforced as written, which was in the public interest. Plaintiff did not use the WPA as a tool to extort the city. Accordingly, I would hold that plaintiff was not barred from recovering under the WPA.

Last week, on a 7-0 vote, the MSC agreed to review whether Shallal “correctly held that the primary motivation of an employee pursuing a whistleblower claim must be a desire to inform the public on matters of public concern, as opposed to personal vindictiveness.”


Group files with Court of Appeals over emergency manager ballot issue

The group Stand Up for Democracy filed a writ of mandamus yesterday at the Michigan Court of Appeals, in hopes that the Court will force the Michigan Secretary of State place the repeal of Michigan’s emergency financial manager law on the November ballot.

The coalition opposing the law says that it threatens democracy and local rights. However, proponents of the law say that it’s necessary to save struggling cities from bankruptcy.

The Detroit Free Press has the full story here.

COA backpedals on published premises case

Earlier this year, Court of Appeals Judge Amy Ronayne Krause, joined by Judges Davis Sawyer and Peter O’Connell, issued for publication a noteworthy premises liability decision, Chesser v. Raddisson Plaza Hotel at Kalamazoo Center.

They’ve apparently had seconds thoughts on the matter. They recently vacated the decision and replaced it with an unpublished opinion.

Chesser, a convention speaker, was injured when she fell from the back of a stage.

The hazard was open and obvious, the panel ruled. There were no guards at the back of the elevated stage and there was a gap between the stage and a wall.

In the original opinion, the panel addressed two issues: Did the hazard have “special aspects” that made it unreasonably dangerous despite its open and obvious nature? And was the hazard effectively unavoidable?

Second question first: The COA rejected a defense argument that Chesser, being aware of the hazard, could have chose not to get on the stage and speak, no matter how awkward or embarrassing that may have been.

Being on defendant’s stage was the primary reason for her presence at defendant’s premises in the first place. Ms. Chesser could technically have avoided the hazard, but she could not have avoided the hazard without completely undermining her use of defendant’s facilities. A condition is “effectively unavoidable” if it cannot be avoided by an invitee without that invitee avoiding the premises altogether. Hoffner v Lanctoe, 290 Mich App 449, 461-464; 802 NW2d 648 (2010), lv pending 489 Mich 877 (2011)[.]

So, what about those “special aspects?” In the original, published opinion, part of the panel’s reasoning that Chesser had no claim included a discussion of other speakers who had crossed the stage without incident. Everyone else made the trip safely. So, the panel reasoned, the hazard was effectively avoidable.

Chesser’s accident was a “statistical fluke,” as Krause put it.

We, and others, found the decision interesting, so we summarized the published case, blogged about it and wrote a news story about it.

Now we’re telling you to forget about it.

On April 5, the COA issued an order vacating Chesser. The order stated a new opinion would be issued.

The new opinion was issued later. It took the COA two tries to get it right.

On April 17, the COA issued an unpublished opinion in Chesser. But unless one knew about the April 5 order, there was no solid indication of the unpublished opinion’s significance.

A quick note: when the COA vacates an opinion, the vacating order is usually accompanied by the replacement opinion, or, when the replacement opinion is issued later, there is usually an order referring back to the order that originally vacated the opinion being replaced.

There must have been a “What’s going on here?” inquiry because two days later, on April 19, the unpublished opinion was released again, with an order vacating the April 17 opinion and the key phrase “ON RECONSIDERATION” (which should have been on the April 17 opinion) displayed on the first page of the unpublished April 19 opinion.

It was an uncharacteristic lapse in the COA’s usually meticulous handling of its opinion releases.

Okay, so administrative miscues aside, what’s the difference between the vacated published version of Chesser and the unpublished, non-binding version of Chesser?

The statistical- fluke discussion is gone, along with the suggestion that Chesser didn’t really have the option of dodging her speaking engagement.

What’s emphasized is that photographs of the accident scene showed an open and obvious hazard, which a reasonable person would have appreciated given the elevation, the tight quarters and the lack of railings or guards.

To the extent the parties were arguing what the photographs showed or didn’t show regarding the hazard from Chesser’s perspective, both parties missed the mark, said the panel in the newly issued opinion. The test is what a reasonable person would have perceived, not Chesser.

Bottom line: the COA issued a published opinion with noteworthy statements about avoiding hazards and calculating whether a hazard is avoidable based on the number of other safe encounters. The COA took that one back and replaced it with a legally less-ambitious opinion resolving an “open and obvious” premises claim.

The published version of Chesser was fun while it lasted.

MSC: Emergency school manager oath-of-office case moot

Robert Davis, the Highland Park school board’s secretary who last week pleaded not guilty to federal charges of converting school district funds, has one less thing to worry about, courtesy of the Michigan Supreme Court.

The Court yesterday threw out his suit, Davis v. Emergency Manager of the Detroit Public Schools, which challenged Roy Roberts’ authority to serve as the emergency manager of the Detroit Public Schools.

In May 2011, Gov. Rick Snyder appointed Roberts under MCL 141.1501 et seq., Michigan’s emergency manager law. Roberts went to work without taking an oath of office.

Davis, a vocal critic of the law who backs up his views with litigation, asked Attorney General Bill Schuette to initiate a quo warranto action, claiming that without the oath of office, Roberts had no authority to run the Detroit schools.

After Davis sought quo warranto relief, Roberts took the oath, and a few days later, Schuette declined Davis’s request.

Davis’s next stop was at the Court of Appeals, which also turned him down. In an order dated Oct, 6, 2011, the COA said Robert’s failure to immediately take the oath didn’t violate MCL 201.3(7), which meant the office of emergency manager “was not, and did not need to be, declared vacant.”

The COA also ruled that Roberts fixed the problem by taking the oath of office before Davis filed his COA action, and that before taking the oath, Roberts was functioning as a de facto officer.

The Michigan Supreme Court yesterday approved the result but not the reasoning.

[W]e VACATE that part of the of the Court of Appeals October 6, 2011 order providing the legal reasoning for the denial of the application.

In all other respects, the application for leave to appeal is DENIED as moot in light of the fact that Roy S. Roberts was reappointed to serve as Emergency Manager for the Detroit Public Schools, effective April 2, 2012, and he signed an Oath of Office on that date.

In a concurring statement, Chief Justice Robert Young Jr. questioned whether an emergency manager is even constitutionally required to take an oath of office. Young said the issue need not be decided because the case was moot.

Young’s concurrence prompted Justice Stephen Markman to respond:

Given that the responsibilities of the emergency manager are, during extraordinary economic circumstances, to carry out the duties of the mayor and the members of the city council of a municipality, all of whom themselves are required to take oaths of office, it would seem anomalous that an official serving in their stead would not also be required to make the same commitment to the laws and constitutions of the United States and Michigan.

MSC names new HR head

Troy A. Scott is the new Director of Human Resources for the Michigan Supreme Court, the Michigan Court of Appeals and the State Court Administrative Office.

He will also serve in an advisory role to the state’s trial courts regarding human resources issues.

Scott previously headed Dean Transportation’s HR department and served as the company’s general counsel since 2003.

In a press release issued earlier this week, State Court Administrator Chad Schmucker said, “Mr. Scott is both an experienced attorney and a human resources specialist, so he is well positioned to counsel the Supreme Court, Court of Appeals, and SCAO on employment matters.”

Scott is a University of Michigan graduate and earned his law degree from Thomas M. Cooley Law School.

Gov. names two to COA

This just in from the State of Michigan:

Gov. Rick Snyder today announced the appointments of Michael Riordan, of Plymouth, and Mark Boonstra, of Dexter, to the Court of Appeals, 1st and 3rd districts, respectively.

Riordan has served as an assistant U.S. attorney since 1998. He previously worked as an attorney for the U.S. Securities and Exchange Commission and as general counsel for Northwestern Mutual Financial. Riordan is a member of the State Bar of Michigan Board of Commissioners and the Fraternal Order of Police, and serves as secretary for the University of Detroit Mercy Law Alumni Association and president of the Federal Bar Association. He is also a past president of the Incorporated Society of Irish American Lawyers. Riordan holds a bachelor’s degree from Michigan State University and a law degree from the University of Detroit Mercy.

Boonstra has served as senior principal for Miller, Canfield, Paddock and Stone PLC since 1985. He previously worked as a law clerk for Judge Ralph B. Guy Jr., of the United States District Court, Eastern District of Michigan. Boonstra works with numerous professional organizations, including the State Bar of Michigan, Michigan Supreme Court Committee on Model Civil Jury Instructions, Michigan Judges Retirement Board, Federal Bar Association, and the Washtenaw County Bar Association. He earned a bachelor’s degree in political science from Michigan State University, a master’s degree in applied economics and a law degree, both from the University of Michigan.

Riordan’s appointment fills the vacancy created by the resignation of Brian Zahra, who was appointed to the Michigan Supreme Court. Boonstra’s appointment fills the vacancy created by the resignation of Richard Bandstra.

Riordan’s appointment runs through Jan. 1, 2013. He will have to seek election in 2012 for a new term. Boonstra’s appointment runs through Jan. 1, 2013. He will have to seek election in 2012 for the balance of the term which ends in 2014.

Markey announces MSC bid

Judge Jane Markey, a nearly 16-year veteran on the Michigan Court of Appeals, is seeking the Republican Party’s nomination for the Michigan Supreme Court.

Markey hopes to get the GOP’s nod at the August nominating convention to run for the MSC seat being vacated by Justice Marilyn Kelly. Kelly can’t seek re-election due to an age limit in the state constitution.

If Markey snags the nomination and wins in the November general election, she would be the first MSC justice from Grand Rapids since 1946.

Markey was first elected to the COA in 1995 and was re-elected in 2002 and 2008. Before that, she served an elected four-year term as a judge of the 61st District Court in Grand Rapids. She was in private practice from 1982 to 1991. More particulars here.

A 1981 graduate of the Thomas M. Cooley Law School, she was Editor-in-Chief of the Cooley Law Review’s first volume.