Mudge v. Macomb Co.

Full title: MUDGE v MACOMB COUNTY

Court: Supreme Court of Michigan

Date published: Jul 1, 1998

458 Mich. 87 (Mich. 1998)

580 N.W.2d 845

Opinion

Docket No. 103985.

Argued November 5, 1997 (Calendar No. 6).

Decided July 1, 1998.

James M. Hacker, Lawrence A. Baumgartner, and Jerald R. Lovell, of counsel, for plaintiffs.

O'Leary, O'Leary, Jacobs, Mattson, Perry Mason, P.C. (by John P. Jacobs and Kenneth L. Herrington), for defendants.

Amici Curiae:

Johnson, Rosati, Galica, Labarge, Aseltyne Field, P.C. (by Marcia L. Howe), for Michigan Defense Trial Association.

Garan, Lucow, Miller, Seward Becker, P.C. (by Rosalind Rochkind), for Michigan Municipal League and Michigan Municipal Liability and Property Pool. Cohl, Stoker Toskey, P.C. (by Peter A. Cohl and John R. McGlinchey), for Michigan Association of Counties and Michigan Sheriffs Association.

TAYLOR, J.

Tanya Mudge and Jonathon Brown filed a lawsuit in the Macomb Circuit Court against Macomb County, Macomb County Sheriff's Department, and William Hackel, Macomb County Sheriff. Plaintiffs alleged that the sheriff's department had obtained ex parte orders from the judge assigned to their respective criminal cases, seizing their bond monies for reimbursement of the expenses of their incarceration in the Macomb County jail. Plaintiffs' amended complaint alleged two causes of action: (1) breach of state law under the Prisoner Reimbursement to the County Act (PRCA), MCL 801.81 et seq.; MSA 28.1770(1) et seq., and (2) a violation of 42 U.S.C. § 1983.¹ The breach of state law count alleged that defendants had failed to commence a civil action within the prescribed period that would have potentially allowed defendants to obtain a portion of their bond monies under the PRCA. Plaintiffs thus sought return of their bond monies because their money had been converted without statutory authority. Plaintiffs also asserted that the acts and omissions of defendants had violated 42 U.S.C. § 1983 because they amounted to an unconstitutional deprivation of their property in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

1 42 U.S.C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

Defendants filed a motion for summary disposition asserting several grounds. After the trial court denied the motion, defendants filed a counterclaim asserting, inter alia, a right to recoupment under the PRCA. Plaintiffs then filed a motion seeking summary disposition of defendants' counterclaim, arguing such a counterclaim was barred given that the limitation period under the PRCA had expired. Defendants also filed a motion for rehearing or reconsideration regarding the denial of their motion for summary disposition. The trial court subsequently granted reconsideration and entered an order summarily dismissing plaintiffs' amended complaint. The trial court never ruled on plaintiffs' motion to summarily dismiss the counterclaim because the counterclaim became moot upon dismissal of plaintiffs' complaint.

Plaintiffs appealed as of right, and the Court of Appeals reversed and remanded for further proceedings. 210 Mich. App. 436; 534 N.W.2d 539 (1995). Defendants filed an application for leave to appeal, which this Court initially denied, but ultimately granted in response to defendants' motion for reconsideration. Our order granting defendants' application for leave to appeal was limited to three questions: (1) whether a violation of the PRCA constituted a federal due process violation, (2) whether an action for damages was barred because the withholding of funds was pursuant to an order issued by the circuit court, and (3) whether defendants' claim for reimbursement under the PRCA could be raised by counterclaim after the time for bringing an action under the statute had expired. 454 Mich. 890 (1997).

Plaintiffs were charged with unspecified criminal charges in the Macomb Circuit Court. Brown posted a $10,000 cash bond on May 17, 1988, to secure his release on bail. On October 5, 1988, while the charges were still pending against Brown, the sheriff's department requested, on an ex parte basis,² that the judge assigned to Brown's criminal case, enter an order.

2 Section 8 of the PRCA authorizes a county to seek an ex parte order, pending a hearing on an order to show cause, restraining a defendant from disposing of known property if necessary to protect the county's right to obtain reimbursement under the act. MCL 801.88; MSA 28.1770(8). However, the ex parte orders issued against Mudge and Brown's bond monies were not issued pending a show cause hearing, and there was no attempt to demonstrate that ex parte orders were necessary to protect the county's right to reimbursement under the act.

The prefatory language in the order that the court signed stated that the Sixteenth Judicial Circuit was in possession of a sum of $10,000 and that it appeared that defendant "has/will" have incurred reimbursement charges as a consequence of the criminal case. The introductory language further indicated that the "Sheriff's Reimbursement Program for the County of Macomb" was requesting that the $10,000 be deposited with the department in lieu of payment toward reimbursement fees provided for under the PRCA. The order entered in Brown's case concluded as follows: "THEREFORE IT IS ORDERED, that the sum of $10,000 be released forthwith, and made payable to the County of Macomb for payment of reimbursement fee(s) upon conclusion of said matter(s), or until further order of the Court." Brown was eventually sentenced to six months in jail on June 22, 1989. Defendants' counterclaim indicates that Brown received a financial history form from the sheriff on or about June 27, 1989. Thus, the ex parte order seizing Brown's money was apparently entered before he was convicted³ and more than eight months before he was requested to provide financial information.⁴ The sheriff's department apparently never served a copy of the ex parte order on Brown or the attorney representing him in his criminal case. It also appears that Brown first learned that his bond monies had been subject to the October 5, 1988, ex parte order after he was sentenced and he sought return of his bond money.⁵

3 The PRCA only authorizes seeking reimbursement from inmates who have been convicted of a felony. MCL 801.83; MSA 28.1770(3). We disagree with the concurrence's statement, post, p 112, n 3, that the PRCA is not an exclusive remedy provision. The statutory language says the county may file an action if it wishes to obtain a judgment against an inmate that has been convicted of a felony. Use of the word "may" merely suggests that counties are not required to pursue costs of incarceration from inmates that are convicted of felonies. We further reject the concurrence's suggestion, id, p 110, n 1, that a county need not postpone seeking an ex parte order until after conviction. MCL 801.88(2); MSA 28.1770(8)(2) does not allow a county to obtain an ex parte order in the hope that an incarcerated individual will eventually be convicted of a felony rather than, e.g., being acquitted or convicted of a misdemeanor or having the charges dismissed. There is no basis for concluding that the statute allows for the issuance of ex parte orders if necessary to protect the county's potential rather than actual right to reimbursement. The concurrence suggests that any "well-counseled potential obligor would dispose of any assets" that otherwise might be available to satisfy a judgment and suggests that any counsel that did not advise his client to dispose of assets would be incompetent. Post, p 111, n 1. This analysis overlooks several things. First, the concurrence's concerns could equally be stated with reference to any civil defendant. Second, the concurrence is overlooking the law regarding fraudulent conveyances.

4 The Court of Appeals statement that Brown's bond monies were seized the day after he received the financial status form on June 27, 1989, is in error. 210 Mich. App. 441, n 2.

5 Brown later signed an order on June 28, 1989, in which he approved and consented to the release of his bond. The order, as initially drafted, provided that $6,000 was to go to Brown and $4,000 was to go to the attorney who had represented him in the criminal case. However, the actual order entered had handwriting on it stating that the money was to be returned "after payment to Macomb County Sheriff of $3,765." Defendants argue that Brown's consent to the order returning his bond is a bar to his cause of action. The trial court rejected the argument that Brown's signing of the order barred his claim because Brown contested the voluntariness of his signature and the record showed different copies of the same order with significantly different information handwritten thereon. The Court of Appeals did not address this argument of the defendants. We decline to find that Brown's claim is barred by the order returning his bond money, given that the Court of Appeals did not address the issue and the fact that our order granting leave to appeal was limited to three issues and the significance of the order returning Brown's bond money was not one of them. Indeed, defendants' application for leave to appeal sought to raise four issues and the fourth issue was the significance of the order Brown signed. This Court, however, only granted leave to appeal regarding the first three issues defendants raised in their application. Because it is possible that the trial court may, after further development of the record, determine that the order returning bond monies is tantamount to a consent judgment, we find that the Court of Appeals erred in ordering defendants to return Mr. Brown's bond monies.
As for plaintiff Mudge, we find no error in the Court of Appeals ordering the return of her bond monies, given that her monies, were not taken in compliance with the PRCA. Contrary to the assertion of the concurrence, post, p 111, n 2, we have not determined that the validity of the "orders" was inadequately briefed. Rather, we have only declined to determine the significance of the order returning bond monies that Brown signed because the Court of Appeals did not reach the question and because we did not grant leave regarding the question. Further, Mudge, unlike Brown, did not sign any order returning her bond money. The concurrence also states that the ex parte order relating to Mudge was valid unless reversed on direct appeal, id, but ignores the fact that the Court of Appeals did vacate the order. The concurrence is also in error when it states, id., that Mudge never sought to have the ex parte order reversed. Count I of Mudge's complaint sought this exact relief. We find the Court of Appeals invocation of MCR 7.216 (A)(7) to vacate the circuit court's ex parte order confiscating Mudge's bond monies was proper.

A somewhat similar scenario occurred with reference to Mudge. A cash bond of $1,100 was posted by Mudge on December 20, 1988. Apparently soon after being sentenced to four months in jail, the sheriff's department requested the judge assigned to preside over Mudge's criminal charges to enter an order on an ex parte basis. The prefatory language and the actual language in the order that was entered was identical to the order entered with reference to Brown, except that the order recited that $1,000 was in the Court's possession and that it was to be released and "made payable to the County of Macomb for payment of reimbursement fee(s) upon conclusion of said matter(s), or until further order of the Court."⁶ Mudge's bond money appears to have been seized two months before she received defendants' financial status form. As with Brown, the ex parte order apparently was not served on Mudge or the attorney who was representing her in her criminal case. Mudge was released from jail on November 17, 1989. On March 21, 1990, Mudge was sent a form demand letter from the "County of Macomb Reimbursement Department." This letter indicated that Mudge had a current balance due of $1,140 and that payment of $125 was due. The letter further stated that the account would be turned over to a collection agency unless a payment was received within ten days.

6 The lower court record contains two July 17, 1989, orders that referred to Mudge. The orders are identical, except that on one of them the $1,000 amount is crossed out and $100 is written in its place.

The Court of Appeals held that defendants had acted ultra vires of the PRCA when they obtained ex parte orders from the circuit court. Id. at 440-441. It also vacated the ex parte orders, ordered that the bond monies be returned,⁷ and found that defendants' recoupment counterclaim was barred. The Court of Appeals went on to hold that a municipality could be sued under 42 U.S.C. § 1983 for unconstitutional or "illegal policies or customs" and that liability could be imposed for deliberate indifference to a person's constitutional or "statutory rights." Id. at 445.

7 In an unpublished order denying defendants' motion for rehearing, the Court of Appeals stayed that portion of its opinion requiring the return of the bond monies until defendants had exhausted their appellate remedies.

I

Defendants assert that the Court of Appeals erred in holding that a violation of the PRCA is actionable under § 1983, because violations of state statutes are not actionable under § 1983. Defendants are correct that actions violating a state statute, that do not also violate the federal constitution or a federal statute, are not actionable under 42 U.S.C. § 1983. See, e. g., Huron Valley Hosp v City of Pontiac, 887 F.2d 710, 714 (CA 6, 1989) ( 42 U.S.C. § 1983 is limited to deprivations of federal statutory and constitutional rights; it does not cover official conduct that allegedly violates state law). Accord Crawford-El v Britton, 523 U.S. 574; 118 S.Ct. 1584; 140 L.Ed.2d 759 (1998) (the very purpose of § 1983 is to provide a remedy for the violation of federal rights).

Plaintiffs' amended complaint alleged that defendants' conduct violated the PRCA. However, plaintiffs also pleaded 42 U.S.C. § 1983 as a separate count, alleging defendants' actions violated their rights under the Fifth and Fourteenth Amendments of the federal constitution. If defendants' conduct violated the federal constitution, the fact that the conduct also violated the PRCA is of no moment and is not a ground allowing a court to find that plaintiffs have not alleged a cause of action under 42 U.S.C. § 1983.⁸ Zinermon v Burch, 494 U.S. 113, 124-125; 110 S.Ct. 975; 108 L.Ed.2d 100 (1990) (a plaintiff may bring a § 1983 action for an unlawful search and seizure [in violation of the Fourth Amendment of the constitution] despite the fact that the search and seizure also violated the state's constitution or statutes).

8 As amicus curiae Michigan Municipal League properly states in its brief. "no remedy is provided by § 1983 for the mere violation of state laws where the state conduct at issue is not violative of federal rights."

Defendants argue that plaintiffs may not assert a § 1983 claim because of the existence of postdeprivation state remedies. To determine whether this argument is correct, we turn to Zinermon. In Zinermon, the Court explained that there are three kinds of claims that may be brought against a state under the Due Process Clause of the Fourteenth Amendment. Id. at 125. The Court said that the first is a claim against a state for a violation of many of the rights under the Bill of Rights. The Court said that the second § 1983 claim is a bar against certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them. With regard to these two types of claims, the Zinermon Court stated: "the constitutional violation actionable under § 1983 is complete when the wrongful action is taken." Id.

The Court further explained that the Due Process Clause also encompasses a third type of protection, a guarantee of fair procedure. Id. at 125. The Court said that the existence of state remedies is sometimes relevant to this third type of § 1983 claim. Unlike the first two types of claims, the constitutional violation under this third type is not complete when the deprivation occurs: it is not complete unless and until the state fails to provide due process. Under the third type, a statutory provision for a postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, may satisfy due process.

The Zinermon Court then clarified that the existence of a postdeprivation remedy is only relevant when the state is unable to provide predeprivation process because of the random and unpredictable nature of the deprivation.⁹ The Court concluded:

9 The Court referenced Parratt v Taylor, 451 U.S. 527; 101 S.Ct. 1908; 68 L.Ed.2d 420 (1981) (postdeprivation remedy is all the process that was due where a guard negligently lost a prisoner's $23 hobby kit), and Hudson v Palmer, 468 U.S. 517; 104 S.Ct. 3194; 82 L.Ed.2d 393 (1984) (postdeprivation remedy is all the process that was due where a guard deliberately destroyed some of a prisoner's property), as examples of cases where the state was unable to provide predeprivation process because of the random and unpredictable nature of the deprivation.

In situations where the State feasiblely can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking. [ Id. at 132.]¹⁰

10 See also Gilbert v Homar, 520 U.S. 924, 930; 117 S.Ct. 1807, 1812; 138 L.Ed.2d 120 (1997):

This Court has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause.

Plaintiffs' amended complaint specifically asserted that defendants' acts and omissions had deprived them of procedural due process. Thus, we analyze plaintiffs' claim under the third type of claim that may be asserted under 42 U.S.C. § 1983.

Pursuant to Zinermon, plaintiffs have alleged a § 1983 claim that is not automatically barred because of the existence of postdeprivation remedies. This is because: (1) the seizing of plaintiffs' bond monies was not necessarily random or unpredictable (the fact that the ex parte orders were on preprinted forms and stated that "the Sheriff's Reimbursement Program to the County" was requesting the money contradicts any argument that defendants' actions were random and unpredictable),¹¹ and (2) a predeprivation hearing could have been provided. Accord Hudson v Palmer, 468 U.S. 517, 532-533; 104 S.Ct. 3194; 82 L.Ed.2d 393 (1984) (postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state [here municipal] procedure, rather than random and unauthorized action), Augustine v Doe, 740 F.2d 322, 329 (CA 5, 1984) ( Parratt v Taylor, 451 U.S. 527; 101 S.Ct. 1908; 68 L.Ed.2d 420, applies only when the nature of the challenged conduct would render provision of predeprivation procedural safeguards impracticable or infeasible), and Alexander v Ieyoub, 62 F.2d 709 (CA 5, 1995) (the Parratt/Hudson doctrine did not foreclose a § 1983 claim because the "random and unauthorized" element necessary for its application was absent where the challenged actions were in accordance with customary procedures).¹²

11 The record also reflects that the county implemented its Prisoner Reimbursement program on May 27, 1985, that an employee was hired to implement the program after approval by the Board of Commissioners during an April 1985 meeting. In an April 1991 answer to an interrogatory, defendants stated that a "best estimate" was that only about fifty to sixty bonds per year were retained.

12 We note that we only granted leave to determine whether plaintiffs, as a matter of law, could bring a § 1983 claim based on the PRCA. Thus, further factual development in the trial court may affect the applicability of liability under Zinermon with respect to this case. The record is not clear regarding the nature and extent of the authority given to the sheriff or other county employees to implement the county's reimbursement program. As the Court of Appeals explained:

Although defendants acknowledge that the county's prisoner reimbursement program was the "dual creation" of the Macomb Circuit Court and the Macomb County Sheriff's Department, we are unable to determine from the limited record available whether the program, as implemented, was authorized by legislative act of the county's board of commissioners. [ 210 Mich. App. 447.]

Whether defendants ultimately will be held liable for the alleged due process violations in this case will only become apparent once the nature and extent of the county policy is more fully defined. Resolution of these issues is only appropriate after further factual development at the trial court level. We do not join the concurrence's assertion, post, p 139, n 30, that only nominal damages will be available in this case. Such a pronouncement is premature, given the fact that the kinds of damages that may be available have not been briefed and are not at issue.

Plaintiffs have properly alleged that they could have been provided, and therefore should have been provided, with notice and an opportunity to be heard before their bond monies were seized, or at least been provided with an opportunity to contest the matter at a show cause hearing. As the Sixth Circuit has explained:

The touchstone of procedural due process is the fundamental requirement that an individual be given the opportunity to be heard "in a meaningful manner." (Citations omitted.) Many procedural due process claims are grounded on violations of state-created rights, as is the case here; rights that do not enjoy constitutional standing. However, the right to a hearing prior to the deprivation is of constitutional stature and does not depend upon the nature of the right violated. [ Howard v Grinage, 82 F.3d 1343, 1349 (CA 6, 1996).]

Similarly, the United States Supreme Court has stated:

Although "[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause," as Mr. Justice Jackson wrote for the Court in Mullane v Central Hanover Tr Co, 339 U.S. 306 [ 70 S.Ct. 652; 94 L.Ed.865] (1950), "there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Id. at 313. . . . In short, "within the limits of practicability," id. at 318, a State must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause. [ Boddie v Connecticut, 401 U.S. 371, 377-379; 91 S.Ct. 780; 28 L.Ed.2d 113 (1971).]

Plaintiffs' allegations are sufficient to state a cause of action for violation of their due process rights, under Zinermon, irrespective of the PRCA, because they have alleged that the county, or its agents, acting within the confines of the county's prisoner reimbursement policy, seized plaintiffs' bond monies without providing for a hearing of any kind. If plaintiffs' allegations are true, defendants treated the bond monies as if they had been forfeited to the county and as if already reduced to a judgment, without affording plaintiffs procedural due process through notice and a hearing and "took" any defenses¹³ plaintiffs may have had to a claim for reimbursement without a hearing, show cause or otherwise.¹⁴ Plaintiffs were entitled to a hearing where a court could consider their support obligations, if any. Thus, we reject defendants' claim that plaintiffs' § 1983 action is barred by plaintiffs' failure to exhaust postdeprivation state remedies.¹⁵

13 MCL 801.87(3); MSA 28.1770(7)(3) provides: "Before entering any order on behalf of the county against the defendant, the court shall take into consideration any legal obligation of the defendant to support a spouse, minor children, or other dependents and any moral obligation to support dependents to whom the defendant is providing or has in fact provided support."

14 See Winters v Bd of Co Comm'rs, 4 F.3d 848 (CA 10, 1993) (a pawn shop was found to have a viable § 1983 claim under procedural due process where the sheriff seized a pawned ring and returned it to the victim of theft without providing notice or a hearing to the pawn shop as required by statute to determine the proper owner of the ring).

15 Although not applicable to the case at bar, we note that the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a), forbids an incarcerated prisoner from filing an action under 42 U.S.C. § 1983 with respect to prison conditions until available state administrative remedies have been exhausted. Brown v Toombs, 139 F.3d 1102 (CA 6, 1998). Such exhaustion applies to cases filed on or after April 26, 1996, the effective date of the act. Id.

II

Having determined that the existence of postdeprivation remedies does not bar plaintiffs' § 1983 claim, we turn to the question whether the claim is barred because the withholding of funds occurred pursuant to orders issued by the circuit court. Defendants' argument regarding this issue is that plaintiffs' § 1983 claim should be barred because plaintiffs never asked the judge who entered the ex parte orders or the Court of Appeals to vacate or overturn the orders. Thus, defendants contend that plaintiffs were not free to file an independent § 1983 lawsuit in order to effectuate return of their bond monies, i.e., to collaterally attack the orders. Defendants assert that § 1983 should never be used as a state tort law, postjudgment, or appellate substitute. We reject defendants' argument.

Zinermon, supra at 124, quoted with approval the following language from Monroe v Pape, 365 U.S. 167, 183; 81 S.Ct. 473; 5 L.Ed.2d 492 (1961):¹⁶

16 Overruled in part on different grounds by Monell v New York City Dep't of Social Services, 436 U.S. 658; 98 S.Ct. 2018; 56 L.Ed.2d 611 (1978).

It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.

Given the fact that plaintiffs' § 1983 claim is not necessarily barred by the existence of postdeprivation remedies, the fact that plaintiffs could have asked the circuit judge or the Court of Appeals to vacate or overturn the ex parte orders when they finally learned of them is no bar to plaintiffs' § 1983 action.

In granting leave to appeal regarding this particular issue, we anticipated that defendants might argue that they cannot be held responsible for any constitutional violation that may have occurred because the direct "cause" of any constitutional violation was the trial court's issuance of the ex parte orders and not the sheriff's department's request that the orders be entered. See, e.g., the discussion and cases cited in Mayor of the City of Lansing v Ku Klux Klan (After Remand), 222 Mich. App. 637, 643 ff; 564 N.W.2d 177 (1997).¹⁷ We deem the issue of causation inadequately briefed and do not reach it.¹⁸ As we explained in Mitcham v Detroit, 355 Mich. 182, 203; 94 N.W.2d 388 (1959):

17 In City of Lansing, the city filed an action in circuit court, seeking an injunction to have a rally planned to be held on the grounds of the Capitol moved to another site because of safety concerns. The defendant filed a counterclaim, asserting 42 U.S.C. § 1983. The circuit court granted the requested injunction after hearing arguments from both sides. The Court of Appeals peremptorily reversed the injunction. On remand, the circuit court summarily dismissed the 42 U.S.C. § 1983 action, concluding that the plaintiffs could not be held liable for seeking an overly broad injunction. The Court of Appeals affirmed, finding that the constitutional violation was caused by an act of the circuit court and not the act of the party who had requested the injunction. The Court of Appeals noted that a different holding could be expected if a party's misconduct taints the legal process so that the court's decision cannot be separated from the party's misconduct. The Court of Appeals stated that a merger of a party's actions with judicial action is sometimes implicated when judicial decisions are made on the basis of ex parte proceedings. The Court of Appeals also noted that Malley v Briggs, 475 U.S. 335, 345-346; 106 S.Ct. 1092; 89 L.Ed.2d 271 (1986), held that a magistrate's action in authorizing an arrest warrant did not insulate a police officer from personal liability under § 1983 for failure to exercise reasonable professional judgment in making the threshold determination whether the facts alleged could possibly justify an arrest.

18 We agree with the Court of Appeals that, with regard to plaintiffs' § 1983 claim, the issue of causation is yet to be determined. 210 Mich. App. 448.

It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.

III

Having determined that plaintiffs' § 1983 claim is not necessarily barred by the existence of postdeprivation remedies and that the causation issue is inadequately briefed, we turn to the question whether defendants' claim for the seldom invoked defense of recoupment under the PRCA may be raised by counterclaim after the time for bringing an action under the statute has expired.

Count VI of defendants' counterclaim alleged that Mudge and Brown had incurred debts of $1,100 and $3,765 respectively under the PRCA and that all or a portion of plaintiffs' damages, interest, attorney fees, and claims were negated, forfeited, reduced, diminished, mitigated, and legally voided on account of plaintiffs' liabilities under the PRCA.

Plaintiffs filed a motion for summary disposition, arguing that the counterclaim should be dismissed because defendants had not filed the counterclaim within the then-applicable six-month limitation period. As previously indicated, the trial court never ruled on plaintiffs' motion because the counterclaim became moot when the court granted reconsideration and granted defendants' motion for summary disposition of the plaintiffs' complaint. The Court of Appeals reversed the trial court's summary dismissal of the plaintiffs' complaint, holding that defendants' actions were in violation of the PRCA. The ex parte orders were vacated and the bond monies ordered returned. The Court of Appeals said that defendants' opportunity to seek reimbursement under the PRCA was lost because it had vacated the ex parte orders and because the limitation period of the PRCA had lapsed. Id. at 443.

Defendants assert that the Court of Appeals erred arguing: "[V]irtually any otherwise valid, but time-barred, action, can always be resurrected, defensively speaking, by a counterclaim, if the legal effect of that counterclaim is to negate or to reduce the principal claim, as long as the defensive countercomplaint does not seek any more than the damages which are claimed by the plaintiff." We agree that the Court of Appeals erred in simply stating that defendants could not seek recoupment by a counterclaim under the PRCA merely because the then-existing six-month limitation period had expired.

The defense of recoupment refers to a defendant's right, in the same action, "to cut down the plaintiff's demand, either because the plaintiff has not complied with some cross obligation of the contract on which he or she sues or because the plaintiff has violated some legal duty in the making or performance of that contract." 20 Am Jur 2d, Counterclaim, Recoupment, § 5, p 231. Recoupment is "a doctrine of an intrinsically defensive nature founded upon an equitable reason, inhering in the same transaction, why the plaintiff's claim in equity and good conscience should be reduced." Pennsylvania R Co v Miller, 124 F.2d 160, 162 (CA 5, 1941).

As explained in Warner v Sullivan, 249 Mich. 469, 471; 229 N.W. 484 (1930):

Recoupment is a creature of the common law. It presents to the court an equitable reason why the amount payable to the plaintiff should be reduced, and the plaintiff will not be permitted to insist upon the statute of limitations as a bar to such a defense when he is seeking to enforce payment of that which is due him under the contract out of which the defendant's claim for recoupment arises. [Emphasis added.]

Accord Bull v United States, 295 U.S. 247, 261-262; 55 S.Ct. 695; 79 L.Ed. 1421 (1935) (the defense of recoupment is never barred by the statute of limitations as long as the main action itself is timely). See also anno: Claim barred by limitation as subject of setoff, counterclaim, recoupment . . ., 1 ALR2d 630, § 14, 666-667("Almost without exception the cases which deal with recoupments . . . run to the effect that if a defendant's claim is in fact a recoupment the general statutes of limitation do not defeat it; on the contrary it may be availed of defensively so long as plaintiff's cause of action exists"). Thus, the expiration of a limitation period does not foreclose a recoupment defense as long as the plaintiff's action is timely.¹⁹ Given that plaintiffs' § 1983 complaint was timely filed, the expiration of the limitation period for a county to bring a PRCA action, in and of itself, was not a bar to defendants seeking recoupment under the PRCA. However, as previously indicated, defendants still have to show that plaintiffs did not comply with some cross obligation or legal duty under the PRCA in order to seek recoupment.²⁰

19 See also MCL 600.5823; MSA 27A.5823, which provides:

To the extent of the amount established as plaintiff's claim the periods of limitations prescribed in this chapter do not bar a claim made by way of counterclaim unless the counterclaim was barred at the time the plaintiff's claim accrued. [Emphasis added.]

The emphasized language in the statute refers to chapter 58 of the Revised Judicature Act. However, the time limitation within which a county has to file a claim under the PRCA, MCL 801.87(1); MSA 28.1770(7)(1), is not found in chapter 58. Thus, defendants are not entitled to assert MCL 600.5823; MSA 27A.5823 as a basis for permitting them a counterclaim under the PRCA.
We also take note of MCL 600.5821(4); MSA 27A.5821(4) which provides:

Actions brought in the name of the state of Michigan, the people of the state of Michigan, or any political subdivision of the state . . . for the recovery of the cost of maintenance, care, and treatment of persons in hospitals, homes, schools, and other state institutions are not subject to the statute of limitations and may be brought at any time without limitation, the provisions of any statute notwithstanding.

If a county jail can be properly considered a "state institution," see, e.g., Moreton v Secretary of State, 240 Mich. 584, 591-592; 216 N.W. 450 (1927), and if MCL 801.87(1); MSA 28.1770(7)(1) is not read as an exception to MCL 600.5821(4); MSA 27A.5821(4), see, e.g., Detroit v Michigan Bell, 374 Mich. 543, 558; 132 N.W.2d 660 (1965); Atlas v Wayne Co Bd of Auditors, 281 Mich. 596, 599; 275 N.W. 507 (1937), two issues we do not reach because they have not been briefed, this statute might allow defendants' counterclaim notwithstanding the expiration of the PRCA limitation period.

20 Thus, we apply the general recoupment rule from Am Jur 2d typically applied in contract cases to this case. The concurrence would apply the same transaction rule from Bull, supra, and would allow recoupment even if plaintiffs did not violate some cross obligation or legal duty under the PRCA. We find it appropriate to apply the Am Jur rule because the PRCA is akin to a contract in that it placed certain duties and obligations on the parties, not existing at common law and thus not reimbursable before enactment of the PRCA, relating to possible reimbursement for certain costs of incarceration.

As an alternative basis for upholding the Court of Appeals, plaintiffs argue that defendants' recoupment counterclaim should be barred because defendants have unclean hands.²¹ We first note that this argument was not made to the trial court. Because of this, neither plaintiffs nor defendants submitted affidavits or other documentary evidence bearing upon this question. Further, this issue was not reached by the Court of Appeals. Under such circumstances, it would be unwise and premature for this Court to consider this argument.²² While we have found that plaintiffs' allegations are sufficient to state a cause of action for a violation of their due process rights, further factual development is necessary to determine the nature and extent of the county policy. Until this further factual development occurs, an evaluation of plaintiffs' claim that defendants have unclean hands is inappropriate.²³

21 Stachnik v Winkel, 394 Mich. 375, 382, 386; 230 N.W.2d 529 (1975); Falk v State Bar of Michigan, 411 Mich. 63, 113, n 27; 305 N.W.2d 201 (1981); Seguin v Madison, 328 Mich. 600, 607; 44 N.W.2d 150 (1950); Rust v Conrad, 47 Mich. 449, 454; 11 N.W. 265 (1882).

22 Thus we do not join in the concurrence's claim, post, p 117, that the ex parte orders can be viewed as a misinterpretation of the requirements of the act or were inartfully drafted. All parties including these defendants are presumed to know the law. Grand Rapids Independent Publishing Co v Grand Rapids, 335 Mich. 620, 630; 56 N.W.2d 403 (1953). Omitting the required hearing cannot fairly be characterized as inartful drafting. We also reject the concurrence's claim that the county's attempt to operate in good faith is demonstrated by the fact that the ex parte orders were obtained in the venue mandated by the statute, i.e., Macomb County. Post, p 117, n 6. The more likely explanation is traceable to the fact that, after all, the money was being held in the Macomb Circuit Court. This is something Willie Sutton (a notorious bank robber from an earlier era who when asked why he robbed banks explained "that is where the money is") understood about venue and probably defendants did also.

23 We disagree with the concurrence's assertion that the trial court should consider the nature of the plaintiffs' conduct in evaluating the unclean hands issue.

"[The clean hands maxim] is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant." [ Stachnik, n 21 supra, p 382 (emphasis added).]

We affirm in part, reverse in part, and remand for further proceedings.

MALLETT, C.J., and BRICKLEY, CAVANAGH, and KELLY, JJ., concurred with TAYLOR, J.

WEAVER, J. I concur only in parts I and II.

BOYLE, J. (concurring in part and dissenting in part).

I concur in part and dissent in part with respect to the majority's treatment of the counterclaim issue.¹ I also concur with the majority's treatment of the causation issue, to the extent it deems the issue inadequately briefed.² I concur with the majority's treatment of plaintiff Mudge's allegations of procedural due process violations under 42 U.S.C. § 1983; however, I write separately to acknowledge the existence of confusion in the federal circuit courts of appeal regarding the principal case on which the majority relies to resolve the § 1983 issue.³

1 The majority states that "[t]he PRCA only authorizes seeking reimbursement from inmates who have been convicted of a felony." Ante at 94, n 3, citing MCL 801.83; MSA 28.1770(3). However, MCL 801.87(1); MSA 28.1770(7)(1) is not an exclusive remedy provision. It stated at the relevant time that "[w]ithin 6 months . . . an attorney for that county may file a civil action. . . ." The act contemplates a collection process in which the prisoner is required to cooperate, and the civil action is only relevant if the county decides that it needs to obtain a judgment against the prisoner. Moreover, MCL 801.88(2); MSA 28.1770(8)(2) provides:

If necessary to protect the county's right to obtain reimbursement under this act against the disposition of known property, the county, in accordance with rules of the supreme court of this state, may seek issuance of an ex parte restraining order to restrain the defendant from disposing of the property pending a hearing on an order to show cause why the particular property should not be applied to reimbursement of the county for the maintenance and support of the defendant as a prisoner.

This provision does not require that the county postpone seeking the ex parte order only until after conviction, but plainly contemplates issuance of the order before conviction if necessary. To the extent the majority implies that the ex parte procedure must be postponed until after conviction, I disagree.
The majority states that "the statutory language says the county may file an action if it wishes to obtain a judgment against an inmate that has been convicted of a felony." Ante at 94, n 3. This is exactly the point: Use of the word "may" does not suggest this is the exclusive remedy to recover costs, as opposed to obtaining a judgment. Likewise, use of the word "may" in the provision providing for ex parte action does not suggest that ex parte action otherwise authorized by MCR 3.310 is superseded and unavailable to the county as creditor and potential judgment obligee.
In addition to these basic considerations of grammatical and statutory construction, common sense suggests that the Legislature intended the phrase "ex parte" to mean what it means in any other context: maintenance of the status quo pending a determination of a substantive issue. It makes no sense to conclude that the Legislature intended to defray the burden on taxpayers for the care of convicted defendants by authorizing its recovery and simultaneously precluding the county from preventing the dissolution of assets that otherwise might be available to satisfy a judgment. Since any knowledgeable or well-counseled potential obligor would dispose of any assets under this scenario, the majority's interpretation amounts to a conclusion that the Legislature created a remedy that would only be efficacious in the case of a wholly uninformed defendant represented by incompetent counsel. For example, MCL 800.404a; MSA 28.1705, authorizing recovery of costs incident to custody of state prisoners provides in relevant part:

(1) Except as provided in subsection (3), in seeking to secure reimbursement under this act, the attorney general may use any remedy, interim order, or enforcement procedure allowed by law or court rule including an ex parte restraining order to restrain the prisoner or any other person or legal entity in possession or having custody of the estate of the prisoner from disposing of certain property pending a hearing on an order to show cause why the particular property should not be applied to reimburse the state as provided for under this act.

(2) To protect and maintain assets pending resolution of an action under this act, the court, upon request, may appoint a receiver.

2 The majority states, ante at 94, n 5, with respect to the appropriateness of the Court of Appeals remedy of ordering the return of plaintiff Mudge's bond monies, that the Court of Appeals did not err in ordering such return absent the county's compliance with the PRCA. Thus, the majority, while determining in part II of its opinion, that the issue of the validity of the orders, i.e., whether the orders may be collaterally attacked, was inadequately briefed, inconsistently upholds return of the bond money to Mudge. The majority thus sustains a collateral attack by Mudge, asserted on the ground that the order violated the PRCA. Assuming, arguendo, that the sheriff acted ultra vires of the PRCA, the trial court's order was not void. The trial court had in rem jurisdiction over the bond money and subject matter jurisdiction over the criminal case in which the bond was posted. Thus, the ex parte order of the trial court is valid until vacated or set aside by the trial court or reversed on direct appeal. Plaintiff Mudge never sought such reversal. This Court has not found a due process violation, but only that such a violation was sufficiently alleged. The amount of bond money taken may be considered as an item of damages if a due process violation is found on remand.
Further, the validity of the Court of Appeals direction to return the bond money does not depend on whether the issue was adequately briefed or whether we granted leave regarding the question. These observations are non sequiturs, given that the majority affirms the Court of Appeals order returning the bond monies as "proper." The parties may abandon an issue; they may not confer jurisdiction on a court to grant a remedy. Otherwise stated, the issue whether the Court of Appeals had the authority to grant this relief is an issue the parties' approach cannot dictate. In point of fact, the defendant claimed that the orders could not be collaterally attacked, a correct conclusion, and one we would, in any event, reach. Even if the defendant's action is ultra vires of the PRCA, the order of the trial court transferring the monies posted for bond is voidable, not void.

3 I also concur with the majority's decision regarding plaintiff Brown's § 1983 action to the extent that it orders the trial court to determine whether Brown may collaterally attack the order he signed. We did not grant leave on this question and, therefore, should express no opinion regarding whether this is a question of fact or a question of law. On remand, that determination is a threshold issue for resolution by the trial court. Stefanac v Cranbrook Educational Community (After Remand), 435 Mich. 155; 458 N.W.2d 56 (1990); MCR 2.612.
Brown was imprisoned for 131 days, entitling the county to $3,930 in reimbursement under the Prisoner Reimbursement to the County Act, MCL 801.81 et seq.; MSA 28.1770(1) et seq.(the PRCA). The record in this case reflects that plaintiff Brown settled his case for $3,765 as of June 29, 1989. Plaintiffs' attorney attempted to file an order for return of Brown's bond monies on June 28, 1989. However, the court clerk informed counsel (and noted on the order) that Brown needed to sign his approval and consent to the order because it disbursed Brown's $10,000 bond, in part, to his attorney. The order, which states that $4,000 was to go to the attorney and $6,000 was to go to Brown, also bears a handwritten notation that the disbursements were to be made "after payment to Macomb County sheriff of $3,765." Both versions of the order, the one signed by Brown and the one not signed by him appear in the file with that notation regarding $3,765. The order appears to be valid on its face and sufficient to refute any contention by plaintiff Brown that he was denied due process where he consented to settlement of his attorney fee and debt under the PRCA. Although the Court of Appeals did not directly address the issue of Brown's consent, the trial court did in its January 24, 1991, opinion and order, and defendants have briefed it and preserved it at all levels. However, given that our grant order was limited to the three issues stated, I agree that a determination limited to whether Brown may collaterally attack the order is appropriate.

I

I concur with the majority's treatment of the counterclaim issue, to the extent that it acknowledges the availability of the county's right to assert its counterclaim for recoupment of its cost of custodial care.⁴ However, the majority's discussion of recoupment might be misleading to the trial court. The majority quotes 20 Am Jur 2d, Counterclaim, Recoupment, etc., § 5, p 231, for the proposition that "recoupment refers to the defendant's right, in the same action, `to cut down the plaintiff's demand, either because the plaintiff has not complied with some cross obligation of the contract on which he or she sues or because the plaintiff has violated some legal duty in the making or performance of that contract.'" Ante at 106. While such analysis would correctly apply to a cause of action asserted on a contract in which the defendant raised recoupment as a defense, this is not a cause of action in which recoupment is being asserted on the basis of a contract. However, the majority states, "[D]efendants still have to show that plaintiffs did not comply with some cross obligation or legal duty under the PRCA in order to seek recoupment," id at 108, thus substituting "the PRCA" for the "contract" in the case-law review in Am Jur.

4 Of course, if Brown settled his claim, the county need not assert a counterclaim. The relevant order appears to indicate Brown consented to satisfaction of his obligation under the PRCA for $3,765.

To avoid confusion over assertion of recoupment in the contract setting as opposed to other contexts,⁵ the trial court ought to analyze the defendant's right to assert the defense in light of the Supreme Court's discussion of recoupment in Bull v United States, 295 U.S. 247, 262; 55 S.Ct. 695; 79 L.Ed. 1421 (1935):

5 Recoupment is not necessarily limited to contract law. See 20 Am Jur 2d, Counterclaim, Recoupment, etc., § 33, p 257. Its common applicability to tax law is but one example of its use outside the context of contract law.

[R]ecoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiff's action is grounded. Such a defense is never barred by the statute of limitations so long as the main action itself is timely. [Emphasis added.]

The rule is clear: If a counterclaim or defense arises out of the same transaction, occurrence, or claim as the plaintiff's claim, it is in the nature of recoupment, and the statute of limitations is inapplicable as long as the plaintiff's claim is timely and the defendant's right to recoupment existed when the plaintiff's claim arose. Recoupment beyond the statute of limitations will serve only to diminish or negate the defendant's liability in damages to the plaintiff. Because this case is not one in which the defendant asserts recoupment on a contract, the majority's reference to the rule regarding a legal duty or cross obligation under a contract is misplaced.

Should the trial court resolve the issue with respect to the county's conduct in such a way as to conclude that the § 1983 claim exists wholly outside the Zinermon dispute because the county sanctioned the alleged due process rationale by official act or custom, the conclusion that the county's hands are unclean might be appropriate. Zinermon v Burch, 494 U.S. 113; 110 S.Ct. 975; 108 L.Ed.2d 100 (1990). However, if the county merely hired an individual to implement the PRCA and that individual and the sheriff acted without the county's sanction, the county should not be found to have unclean hands where it attempted in good faith to comply with the PRCA. As noted above, if the county did not officially sanction the ex parte bond-retention procedure, under Monell, the county is likely not even the proper defendant. Monell v New York City Dep't of Social Services, 436 U.S. 658; 98 S.Ct. 2018; 56 L.Ed.2d 611 (1978). Resolution of the issue now would amount to the Court's resolving that the county's official sanction was present, a conclusion not supported by this record.

As the record now stands, the county hired an individual to implement a prison reimbursement program in May of 1985 on the recommendation of the sheriff and the county "Prisoner Reimbursement Subcommittee." However, nothing in the record indicates that the county board of commissioners endorsed any specific policy regarding how implementation of the PRCA was to occur officially or otherwise.

Instead, the record appears to indicate that the county attempted, through the sheriff's department and the individual hired to implement a reimbursement program, to utilize a procedure that would impose the legal obligations of the act, while providing inmates an opportunity to avoid the time-consuming and costly burdens of civil litigation. In its answers to interrogatories, dated April 3, 1991, the county supplied a document entitled "Macomb County Jail Reimbursement Program Update Summary Report — 08/19/85." The document appears to be the result of the efforts of the individual hired to implement the PRCA. It notes that the procedures described therein are "intended to give a general overview of typical implementation of the program." The document generally describes implementation:

Under this Act, an inmate who willfully refuses to cooperate in the counties [sic] attempts to seek reimbursement may be denied a 1/4 reduction of his or her sentence (under [MCL 801.257; MSA 28.1747(7)]). Inmates [sic] cooperation in this matter is highly stressed, and is enforced by the Sheriff's discretion in revoking "good time" for refusal to cooperate. Refusing to make payments on the other hand, may result in civil action filed against him or her for up to six months after the sentence was served. The county could also seek a restraining order preventing the inmate from disposing [of] property pending a hearing.

As I read the procedures outlined in the report, the county employee, under the PRCA, designed a program whereby the county: (1) informed the prisoners of their obligation to pay reimbursement and that the county would bill the prisoners accordingly pursuant to subsection 3(1) ("The county may seek reimbursement for any expenses incurred by the county . . . [including $30] per day for the expenses of maintaining that prisoner or the actual per diem cost . . . whichever is less . . . , [the cost to] investigate the financial status of the person[, and] [a]ny other expenses incurred by the county in order to collect payments under this act"); (2) developed a financial history form (subsection 3[2], by which it sought to determine the prisoners' ability to pay); (3) informed the prisoners of their duty to cooperate in the collection process (subsection 5[1]) or be subject to penalties under the act (subsection 5[2] — denial of good time credit); § 7 — civil action seeking reimbursement expenses; and (4) referred cases to the county's corporation counsel where inmates refused or made no attempt to pay. Nowhere in the document does a procedure for attaching bond monies appear; however, the document's reference to the temporary restraining order references such orders as "pending a hearing."

The summary update reflects the county's apparent good-faith attempt to comply with the PRCA by instituting a collection process enforced by denial of good time and the civil action as set out in the act. However, the record does not reflect how the retention of bond monies by ex parte order without a mechanism for a hearing became part of the process.⁶

6 Further support for the fact that the county was attempting to proceed in good faith under the statute is found in the fact that the ex parte orders were obtained in the venue mandated by the statute. MCL 801.88(1); MSA 28.1770(8)(1). ("If the defendant is still a prisoner in the county jail . . . venue is proper in the county in which the jail . . . is located.")

That the bond monies were retained "in lieu of" a statutory debt does not conclusively establish that the county intentionally sought to deny the prisoners their rights under the constitution or the PRCA, or otherwise committed inequitable conduct sufficient to invoke the doctrine of unclean hands. It is equally likely that the order was occasioned by a misinterpretation of the requirements of the act, or that the orders were inartfully drafted without expressly providing for a hearing. This does not change the fact that the plaintiffs here have sufficiently alleged a denial of due process. However, regardless of whether this failure was attributable to the county's evil intent, or whether the plaintiffs' delay in seeking the return of bond was timed to foreclose assertion of the debt, the record is wholly inadequate.

Should the trial court determine that the clean hands defense is available with respect to the counterclaim, common sense dictates that the trial court should also consider the nature of the plaintiffs' conduct. The plaintiffs knew they had posted bond, but there is no indication that plaintiff Mudge ever sought return of her bond money by an appropriate motion. Nor is there any indication why she did not. Likewise, there is no explanation of how she discovered the bond would not be returned. Plaintiff Mudge did not move for return of bond, or seek to set aside the order in the district court, or seek an appeal when she became aware of the order. Instead, as the record now stands, it is equally possible that, with knowledge of the order, plaintiff Mudge waited until the six-month period had passed before filing a § 1983 claim. Plaintiff Brown signed an order that appears to have settled his case. Plaintiff Mudge apparently sat on her rights, and there is no indication in the record that she ever cooperated in the county's reimbursement collection process. Thus, the trial court might appropriately determine that the equities are in balance.

II

As noted by Judge Easterbrook, the confusion created by Zinermon v Burch, supra, and its relationship to Parratt v Taylor, 451 U.S. 527; 101 S.Ct. 1908; 68 L.Ed.2d 420 (1981), and Hudson v Palmer, 468 U.S. 517; 104 S.Ct. 3194; 82 L.Ed.2d 393 (1984), has resulted in "a line of precedent . . . resembling the path of a drunken sailor. . . ." Easter House v Felder, 910 F.2d 1387, 1409 (CA 7, 1990) (second reh en banc) (Easterbrook, J., concurring) ( Easter House III).⁷ Easter House III was the second en banc opinion of the United States Court of Appeals for the Seventh Circuit discussing this difficult issue, and it is a leading case in identifying the dispute over Zinermon in the federal circuit courts. I concur with the majority here because its decision is consistent with Judge Cudahy's dissents in Easter House III and Easter House v Felder, 879 F.2d 1458, 1481 (CA 7, 1989) (reargued en banc) ( Easter House II), and Judge Cudahy's original panel opinion in Easter House v Felder, 852 F.2d 901, 904 (CA 7, 1988) ( Easter House I).

7 Similarly, Judge Edith Jones observed, " Zinermon undoubtedly complicated an already overloaded procedural due process jurisprudence." Caine v Hardy, 905 F.2d 858, 863 (CA 5, 1990) (Jones, J., dissenting).

A

A plaintiff seeking to maintain a due process claim under § 1983 must allege a deprivation of "a constitutionally protected interest in `life, liberty, or property.'" Williams v Langston, unpublished opinion of the United States Court of Appeals for the Seventh Circuit, issued March 4, 1997 (Docket No. 95-3314), 108 F.3d 1380; 1997 WL 113726,*1 (CA 7, 1997).⁸ With respect to plaintiff Mudge, I agree with the majority that "[p]laintiffs' allegations are sufficient to state a cause of action for violation of their due process rights . . . because [defendants] seized plaintiffs' bond monies without . . . a hearing of any kind . . . [and] treated the bond monies as if . . . forfeited to the county and as if [the ex parte orders attaching the bond monies had been] already reduced to judgment, without . . . notice and a hearing." Ante at 102.⁹ The sheriff allegedly treated the ex parte orders as if they established the county's right to receive the monies rather than as a temporary restraint on disposition of plaintiffs' property pending further hearing. Thus, the due process violation alleged arises not from the use of an ex parte procedure, but from its misuse in contravention of the statutory procedures to effectuate a property deprivation without a hearing.¹⁰

8 "An actionable section 1983 claim must allege facts sufficient to support a determination `(i) that the conduct complained of has been committed under color of state law, and (ii) that [the alleged] conduct worked a denial of rights secured by the Constitution or laws of the United States.'" Rumford Pharmacy v East Providence, 970 F.2d 996, 998 (CA 1, 1992).

9 It should be clear that the only recognizable allegation of a due process violation here is the failure to provide for notice and a show cause hearing in the ex parte orders before proceeding to attach and distribute the bond money into the general fund. In all other respects, I read the record as indicating the county proceeded properly in developing a collection process under the PRCA. Future ex parte orders restraining disposition of assets should only restrain disposition pending notice and a hearing to show cause why the assets should not be applied to reimbursement under the act, at which the court may order proper disposition. MCL 801.88(2); MSA 27.1770(8)(2). A civil action under the act is not the county's exclusive remedy, but is an enforcement procedure to ensure payment and compliance with the county's collection process under the act.

10 Treatment of the plaintiffs' claims as alleged violations of substantive due process would be inappropriate where defendants' conduct cannot be characterized as "`clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.'" Sierra Lake Reserve v Rocklin, 938 F.2d 951, 957-958 (CA 9, 1991), quoting Village of Euclid, Ohio v Ambler Realty Co, 272 U.S. 365, 395; 47 S.Ct. 114; 71 L.Ed.303 (1926).

The difficulty confronting the courts in cases involving these types of claims is determining whether a given claim should be evaluated under the Parratt/Hudson doctrine, which teaches that where a government official engages in random and unauthorized activity that results in a deprivation of life, liberty, or property, due process is satisfied by adequate postdeprivation process. Zinermon appears to require predeprivation process in virtually all circumstances, see id. at 127-128 (the Parratt/Hudson doctrine applies only in rare cases), but courts have struggled to apply its analysis consistently.

The issue turns on Zinermon's reference to the third prong of its apparent test that in order to trigger Parratt/Hudson, the defendants' conduct must be "`unauthorized' in the sense the term is used in Parratt and Hudson." Zinermon at 138. The courts' difficulty lies in determining when the conduct of the official actor is sufficiently authorized that the plaintiff may avoid the Parratt/Hudson doctrine.¹¹

11 This issue is directly related to the issue whether the plaintiffs have a § 1983 cause of action against the county and to how the case will proceed on remand. As correctly noted by the Court of Appeals, an issue "yet to be determined regarding plaintiffs' § 1983 claim [is] the existence of an official municipal policy or custom." 210 Mich. App. 436, 448; 534 N.W.2d 539 (1995). While we recognize that plaintiff has sufficiently alleged a § 1983 cause of action, discovery should allow the trial court to determine whether and to what extent the procedure for obtaining ex parte orders, drafted in such a way as to deprive plaintiffs of notice and a hearing, was officially authorized by the county's deliberate or customary acts. If the conduct was so authorized, under Monell, supra, the officially sanctioned act allegedly depriving plaintiffs of their rights under the Due Process Clause is actionable under § 1983 without reference to Parratt/Hudson. However, should discovery reveal that the county did not deliberately or by custom authorize the drafting of the ex parte orders so as to allow the orders to be treated as judgments authorizing transfer of the bond monies into the general fund, the Court's position on the dispute over the meaning of Parratt/Hudson after Zinermon will determine whether plaintiffs' action may go forward. Because we have adopted the narrow view of Parratt/Hudson, as explained below, plaintiffs' cause of action will go forward even if the county did not officially sanction the ex parte bond retention procedure, but the county may not be an actionable defendant given the requirements of Monell.

If Parratt/Hudson is interpreted narrowly, a plaintiff may successfully state a § 1983 cause of action where an official actor's allegedly unconstitutional conduct is wholly outside the discretion delegated to the actor in the context of applicable procedural safeguards, i.e., where the alleged deprivation was in direct procedural contravention of the state statute authorizing the very deprivation that occurred. Alternatively, if Parratt/Hudson is interpreted broadly, and postdeprivation process is available, the plaintiff may not maintain the § 1983 cause of action where the official actor's allegedly unconstitutional conduct was not authorized by the delegation of discretion.

If a court selects the narrow interpretation of Parratt under Zinermon, a far greater number of plaintiffs will succeed in alleging a § 1983 cause of action than under the broad interpretation. The latter view would leave plaintiffs alleging a procedural deprivation in contravention of state laws designed, at least in part, to protect against the same to state-law remedies.¹² Not having received briefing from the parties and amici curiae in addressing Zinermon, the majority opts for the narrow view with surprisingly little analysis.¹³

12 An underlying and inadequately addressed issue in the case before us is whether the conduct of the official actor is attributable to the county defendant. See n 18.

13 Neither the parties nor the amici curiae in this case briefed or cited Zinermon or its progeny in the federal circuit courts of appeal. Although I join the majority, my preference would be to seek supplemental briefing.

B

The several opinions issued by the Seventh Circuit in Easter House provide the parameters of the running dispute over the meaning of Zinermon.¹⁴ The majority in Easter House III concluded that the state action in question was the kind of random and unauthorized action that fails to state a claim where the state provides an adequate postdeprivation remedy pursuant to Parratt/Hudson. The plaintiffs alleged that the defendants conspired to deprive the plaintiff of its adoption agency license. In concluding that the deprivation fell within the Parratt/Hudson doctrine, the court reasoned:

14 "At the heart of the dispute in Easter House is the question of whether procedural due process violations require that the challenged action be taken not only under color of state law, but also, pursuant to state law." Blum, Local government liability under section 1983 , 575 PLI/Lit 53, 273 (1997). Notably, Judge Posner, who joined the majority in Easter House II, changed his vote on remand for reconsideration in light of Zinermon and joined Judge Cudahy's dissent in Easter House III.

Section 1983 must be preserved to remedy only those deprivations which actually occur without adequate due process of law, such as those which result from a state's conscious decision to ignore the protections guaranteed by the Constitution. It should not be employed to remedy deprivations which occur at the hands of a state employee who is acting in direct contravention of the state's established policies and procedures which have been designed to guarantee the very protections which the employee now has chosen to ignore. Such a limitation upon § 1983 maintains the delicate balance between the state and federal judicial systems, leaving the former to remedy individual torts and the latter to address property deprivations which occur without adequate due process protection. [ Easter House III at 1404-1405.]¹⁵

15 If we were to apply this reasoning, we would find in defendants' favor here, because the circumstances giving rise to this case did not "result from a state's conscious decision to ignore the protections guaranteed by the Constitution." Rather, the deprivations appear to have arisen as a result of the alleged acts of officials "in direct contravention of the state's established policies and procedures . . . designed to guarantee the very protections . . . ignore[d]," i.e., a predeprivation show cause hearing under MCL 801.88(2); MSA 27.1770(8)(2). Of course, the actors responsible could have otherwise provided due process by providing other constitutionally sufficient notice and an opportunity to be heard.

Significantly, the majority held:

Where adequate postdeprivation remedies exist in a state to redress a property deprivation which has resulted from an employee's random and unauthorized deviation from established state policy and procedure, a party cannot maintain a § 1983 action because he has received all of the process which was due. [ Id. at 1408.]

It is the phrase "random and unauthorized deviation from established state policy and procedure" that makes the Seventh Circuit's holding significant. Parratt and Hudson did not involve procedural deviations. The acts alleged were negligent and intentional conduct by state officials that resulted in due process deprivations. In Zinermon, unlike Parratt and Hudson, the challenged conduct involved either a deviation from procedural safeguards or an unconstitutionally broad delegation of authority. Zinermon at 135-136. Thus, Judge Cudahy, writing for the dissenters in Easter House III concluded that the majority missed the point of Zinermon. Id. at 1410.

Judge Cudahy observed that, under Logan v Zimmerman Brush Co, 455 U.S. 422; 102 S.Ct. 1148; 71 L.Ed.2d 265 (1982), " Parratt does not extend to cases in which an `established state procedure' destroys someone's property right without according that person proper predeprivation process." Easter House III at 1410 (Cudahy, J., dissenting). In other words, with regard to established state procedures, Logan appeared to take the narrow view of the scope of the Parratt/Hudson doctrine. Judge Cudahy further noted that the Supreme Court "granted certiorari in Zinermon precisely in order to resolve the circuit conflict over Parratt's proper scope," id. at 1411, that is, what constitutes "an established state procedure." Our decision today is consistent with Judge Cudahy's dissenting interpretation of Zinermon "that predeprivation process is the rule, not the exception," Easter House III at 1411, to the extent the analysis applies to established procedures and to the extent there were such established procedures in this case.¹⁶

16 In this case, it is as yet unclear whether there was an established state procedure or whether the actors responsible for the alleged deprivation were acting outside their authority in deviating procedurally from the show cause hearing requirement under the PRCA while failing to provide other constitutionally sufficient process. See, e.g., MCR 3.310.

Judge Cudahy's first dissent in Easter House II aptly explained the position we adopt:

Stripped of their analytical intricacies, Parratt and Hudson teach a fairly straightforward lesson (or so I had thought before today's decision): while the procedural aspect of the due process clause generally requires that the state provide a hearing before it takes away someone's property, it is physically impossible to grant a predeprivation hearing where the taking is a "fluke," unplanned and uncontrollable. Such an accident occurs, for example, where a state employee who has no business meddling with anyone's property rights nevertheless deprives someone of property. (Note that in both Parratt and Hudson the employee who took the plaintiff's property was acting completely beyond the pale of his or her assigned responsibilities — in Parratt, by signing for (and thereby taking custody of) the plaintiff's package, in direct violation of prison rules; in Hudson, by destroying innocuous items of personal property during a search for contraband.) In these unpredictable and unpreventable situations (and in emergencies, where a predeprivation hearing is unwise) all that a state can realistically offer is a post-deprivation remedy; all that a federal court presented with a due process claim can do is assure itself that the state remedy is "plain, speedy and efficient." [ Id. at 1481-1482.]

As in Zinermon, the case before us does not appear to involve an unplanned, uncontrollable deviation from the authorized state procedure resulting in deprivation of a constitutionally protected interest by "fluke."¹⁷ Our position is, therefore, consistent with Judge Cudahy's conclusion that

17 In Zinermon, a liberty interest was at stake, while here, as in the Easter House cases, a property interest is at stake. Judge Easterbrook acknowledged that part of the difficulty here may flow from the case law's distinction between liberty and property, and that the majority's approach there, as well as in Parratt, Hudson, and Zinermon, might have turned partly on that distinction. See Easter House III at 1408-1410 (Easterbrook, J., concurring). While some cases have endorsed this distinction, Zinermon, supra at 116, n 2, and 131, n 16, the Supreme Court has not done so. Id. at 132 ("We . . . do not find support in precedent for a categorical distinction between a deprivation of liberty and one of property").

for purposes of determining whether the "state" has violated an individual's constitutional right to due process, the "state" generally includes any person to whom is delegated the responsibility of giving predeprivation process. . . . ("The State delegated to [the hospital staff] the . . . authority to effect the very deprivation complained of here . . . and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement.") [ Easter House III at 1411, quoting Zinermon at 138.]

Likewise, in our case, the state delegated to the county defendant the authority, through the sheriff, to effect the deprivation of which plaintiffs complain, and the duty to comply with the legislatively promulgated procedural safeguards or otherwise initiate constitutionally sufficient procedures. The alleged abuse of the ex parte mechanism in the PRCA amounts to an alleged failure to abide by the statutory safeguards or otherwise provide notice and a predeprivation hearing, see, e.g., MCR 3.310, thus stating a claim under § 1983.¹⁸

18 The county has not argued that the sheriff is a state official, rather than a county official, in an attempt to defeat attribution of the sheriff's conduct to the county. See McMillan v Monroe Co, Alabama, 520 U.S. 781, 785-786; 117 S.Ct. 1734, 1736-1737; 138 L.Ed.2d 1 (1997) (determining whether the county sheriff's acts are attributable to the municipality on the basis of (1) "whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue," and (2) "the definition of the official's functions under relevant state law"); Bryan Co, Oklahoma Bd of Co Comm'rs v Brown, 520 U.S. 397; 117 S.Ct. 1382, 1388; 137 L.Ed.2d 626 (1997) ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged"). Federal cases have held that where a plaintiff met the requirements for alleging local government liability under Monell, supra at 690-691, the "complaint asserting municipal liability . . . by definition [would] state a claim to which Parratt is inapposite." Wilson v Civil Town of Clayton, Ind, 839 F.2d 375, 380 (CA 7, 1988). If "the suit is allowed under Monell because the action was executed in accordance with `official policy,' the tortious loss of property can never be the result of a random and unauthorized act." Id. It is unclear whether Zinermon has changed this analysis. See, e.g., Blum, n 14 supra at 264. Proceedings below will presumably resolve the issue whether the sheriff acted as a state official in accordance with his authority under the PRCA or pursuant to official county procedure. Thus, they will resolve whether the sheriff's conduct in obtaining the ex parte orders falls within the Zinermon controversy or, as an established state procedure that denies due process, is governed only by Monell.

The Fifth Circuit's panel decision in Caine v Hardy, 905 F.2d 858 (CA 5, 1990) ( Caine I),¹⁹ is also instructive with regard to the debate over the limits of the Parratt/Hudson doctrine. The Fifth Circuit panel, having interpreted Parratt narrowly, acknowledged that Zinermon effectuated a change in the "controlling constitutional authority . . . [and] require[d] reconsideration of [the] Court's Parratt/Hudson jurisprudence." Caine I at 861. Judge Williams, characterized the Zinermon decision as being based on three considerations: (1) the deprivation occurred at a predictable time, (2) predeprivation process was not impossible, and (3) the conduct in question was not "`unauthorized' as that term was used in Parratt and Hudson." Id. at 861. The officials in Zinermon were delegated by the state the authority to effectuate "the very deprivation complained of," Caine I at 861, quoting Zinermon at 138, and proceeded to ignore the procedural safeguards designed to ensure constitutionality. The officials in Parratt and Hudson never had any such authority.²⁰

19 The Fifth Circuit, in an opinion by Judge Edith Jones, reversed on rehearing en banc, Caine v Hardy, 943 F.2d 1406 (CA 5, 1991) ( Caine II), ultimately adopting a similar approach to that which was adopted in the Seventh Circuit in the Easter House cases. Although we adopt an approach rejected by the Seventh and Fifth Circuits, in cases in which the Supreme Court denied certiorari, my concurrence with the majority's adoption of the apparent minority approach stems from my agreement with the authorities explained and the continued unsettled nature of this area of the law in light of the Supreme Court's failure to provide clearer guidance. Judge Easterbrook joined the majority in Easter House III because he believed, "despite the force of Judge Cudahy's arguments, Judge Kanne offers the best estimate of the course a majority of the [Supreme] Court will take. . . ." Easter House III at 1409. Perhaps, in light of the Supreme Court's denials of certiorari in Easter House III and Caine II, we should be inclined to follow the Seventh Circuit majority and find for defendant here. However, I find Judge Cudahy's position more persuasive, as does, I believe, Justice TAYLOR. Moreover, little guidance may be gleaned from the Court's denials of certiorari in Easter House III and Caine II considering the Court's apparently inconsistent remand and subsequent denial in Fields v Durham, 909 F.2d 94, 97 (CA 4, 1990) (discussed below).

20 The Zinermon Court stated:

Burch's suit is neither an action challenging the facial adequacy of a State's statutory procedures, nor an action based only on state officials' random and unauthorized violation of state laws. . . . [Burch] seeks to hold state officials accountable for their abuse of their broadly delegated, uncircumscribed power to effect the deprivation at issue. [ Id. at 136.]

Perhaps, on this basis, we might distinguish our case from Zinermon and find for the defendants, given that the officials here were not abusing "broadly delegated, uncircumscribed power to effect the deprivation at issue." Indeed, treating the ex parte orders as if they were judgments was in direct contravention of the statutory safeguards, namely, the hearing procedure, circumscribing the authority to effect a deprivation of bond monies to which plaintiffs were entitled at the conclusion of their sentences. The approach taken in Easter House III would likely result in the conclusion that such unauthorized conduct does not give rise to a § 1983 cause of action. Unlike the situation where the state delegates have uncircumscribed power, the abuse is not foreseeable within the statutory framework, assuming the existence of safeguards creates an expectation that officials will comply with those safeguards.

Judge Williams explained:

The lesson of Zinermon is that the Parratt/Hudson doctrine is restricted to cases where it truly is impossible for the state to provide predeprivation procedural due process before a person unpredictably is deprived of his liberty or property through the unauthorized conduct of a state actor. In Zinermon, however, the deprivation was not unpredictable. It was not impossible, therefore, for the state to provide predeprivation procedural due process. Since the state actor who caused the deprivation was authorized to take the action that caused the deprivation, the Parratt/Hudson doctrine did not apply. It follows that when the Parratt/Hudson doctrine does not apply, a § 1983 plaintiff can state a claim for the state's failure to provide predeprivation procedural due process. [ Caine I at 862.]²¹

21 Caine I referenced Easter House II and the Supreme Court's remand for reconsideration in light of Zinermon, as well as the Supreme Court's similar remand in Fields v Durham, 856 F.2d 655 (CA 4, 1988), in which the Fourth Circuit applied the Parratt doctrine to a state college administrator's discharge. In Fields, the administrator plaintiff alleged the state's dismissal procedures were misapplied. On remand, the Fourth Circuit, consistent with our decision here, characterized the Parratt doctrine as applying only to a "narrow class of cases" in which "`postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide." Fields v Durham, n 19 supra at 97. In deciding the case in the defendant's favor, the court concluded that "[p]redeprivation process was not only prescribed. . . , it was actually provided." Id. Notably, however, the court observed that under Zinermon "the provision of some predeprivation process remains the preferred constitutional course," id. at 97, and formulated a two-part analysis under Zinermon:

Zinermon . . . requires that we first ask whether the risk of an erroneous deprivation was foreseeable, and next "whether predeprivation safeguards would have any value in guarding against the kind of deprivation . . . allegedly suffered."

Clearly, under this analysis, the majority reaches the correct conclusion today. Although the Fifth and Seventh Circuits ultimately took a different approach, I find persuasive the Caine panel's reasoning that "in both Fields and Easter House, the deprivations were predictable, the state could have provided predeprivation procedural due process, and the deprivations occurred at the hands of state actors who were authorized by the state to take the actions that caused the deprivations. Thus, under Zinermon, neither Fields nor Easter House should be controlled by the Parratt/Hudson doctrine." Caine I at 862. The same reasoning applies with equal force to this case.

It is worth noting, despite the conclusion that Caine I, Easter House I, and Fields present the correct understanding of Zinermon, that Judge Jones dissented in Caine I with intensity rivaling that of Judge Cudahy in the Easter House cases, and that Judge Jones' approach ultimately won over the Fifth Circuit en banc in Caine v Hardy, 943 F.2d 1406 (CA 5, 1991) ( Caine II). Judge Jones' ultimately prevailing view was succinctly described in Caine I:

Zinermon analyzed the state officials' conduct in admitting Burch to the mental hospital and concluded that Parratt/Hudson did not vindicate the adequacy of a postdeprivation remedy because the voluntary commitment procedure presented both a high risk of erroneous deprivation of a mentally ill person's liberty, and the substantial likelihood that minimal further procedural safeguards could readily have avoided the deprivation. Zinermon requires a hard look at a Parratt/Hudson claim to determine whether the state official's conduct, under all the circumstances of the deprivation, could have been adequately foreseen and addressed by procedural safeguards. If it could, then the case requires classic Matthews [ v Eldridge, 424 U.S. 319; 96 S.Ct. 893; 47 L.Ed.2d 18 (1976)]balancing and has stated a claim for relief. Zinermon did not, however, explicitly or implicitly disavow the Parratt/Hudson doctrine, nor did it portend that any alleged violation of procedural due process undertaken within the scope of an established and articulated state regulatory framework automatically falls outside the purview of Parratt/Hudson. Zinermon employs and hence requires case-by-case analysis of the deprivation at issue. See Zinermon, O'Connor, dissenting, 494 [U.S. 139]. [ Caine I at 865 (Jones, J., dissenting).]

However, Judge Jones also acknowledged agreement with the majority that " Zinermon . . . restricted Parratt/Hudson to cases in which `it truly is impossible to provide predeprivation safeguards.'" Id. at 865-866. Her disagreement, like the disagreement in the Seventh Circuit, lies chiefly with the scope to be given Zinermon regarding the issue whether misuse or abuse of delegated power can ever be considered random and unauthorized given that the actors were "`authorized' to effectuate the scheme." Caine I at 866 (Jones, J., dissenting). Judge Jones explained why, under her interpretation, "[t]he factors which distinguish Zinermon from Parratt/Hudson" were not applicable to the plaintiff's loss of privileges in Caine:

There is no deficit in the hospital's procedural regulations. As previously stated, the doctor challenges solely the bias of his peers and their violation of those regulations. These allegations naturally disprove the majority's third Zinermon based conclusion that the "state actors' actions in the present case were not unauthorized." . . . Of course they were! Investigatory and judicial bias in implementing the regulations is always unauthorized, if they are not alleged to flow from the regulations themselves. Holloway v Walker, 784 F.2d 1287, 1292-1293 (CA 5, 1986). Nearly every paragraph of Dr. Caine's 50-page complaint concludes with the assertion that the hospital actors' conduct violated a particular provision of the regulations. The majority have already assumed away the only reason authorized by the regulations for immediate suspension of hospital privileges, i.e., to protect the safety of patients. Hence it follows that any other action which brought about that result had to be unauthorized by the regulations. In Zinermon, by contrast, the voluntary admission of the patient may have been an abuse of judgment by the staff authorized to admit him, but their exercise of judgment was specifically condoned by the regulations. "Florida's [statutory scheme] . . . gives state officials broad power and little guidance in admitting mental patients." Zinermon [ 494 U.S. 135]. Such is emphatically not the case under the conditions assumed by the majority. [ Caine I at 866-867 (Jones, J., dissenting).]

Judge Jones, thus, distinguished between officials whose exercise of judgment is specifically authorized, but applied in an unconstitutional manner largely because the legislature failed to adequately circumscribe the discretion delegated, and officials whose conduct is outside the parameters of the discretion granted them under state law and therefore characterized as random, unauthorized, and unpredictable sufficient to trigger the Parratt/Hudson doctrine. This may correctly explain Zinermon. Like Judge Easter-brook's reference to the difference between liberty and property, Judge Jones' distinction between a delegation of "broad power and little guidance" and a delegation of discretion that is more limited by procedural safeguards within a statute may provide a clue about the Supreme Court's underlying rationale in Zinermon. If so, Zinermon may, as Judge Jones suggests, represent a sui generis situation. However, lacking the comfort of further Supreme Court clarification, I agree with the majority and the approach taken by Judge Williams for the Caine I majority and by Judge Cudahy, that "predeprivation process is the rule, not the exception," Easter House III at 1411 (Cudahy, J., dissenting), and that § "1983 applies to all violations of constitutional rights — not only those that are authorized by state law, but also those that result from abuses of state authority and are forbidden by state law." Id. at 1412.²²

22 Judge Jones' approach would logically lead to the conclusion, contrary to Monell, Monroe v Pape, U.S. 167; 81 S.Ct. 476; 5 L Ed 2d 492 (1961)and Zinermon that abuses of state authority are not within § 1983, but that the statute only applies to violations authorized by state law, i.e., the cause could only lie where the legislature expressly authorized the unconstitutional deprivation or implicitly authorized it by failing to adequately circumscribe the actors' discretion/authority. This approach, however, contradicts the Zinermon Court's statement that, "where the State feasibly can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking." Id. at 132. Moreover, the Court, in rejecting application of Parratt/Hudson, reasoned:

It is immaterial whether the due process violation Burch alleges is best described as arising from petitioners' failure to comply with state procedures . . . or from the absence of a specific requirement that petitioners determine whether a patient is competent. . . . [ Id. at 135-136.]

See also Seals v Edwards, unpublished opinion per curiam of the United States Court of Appeals for the Sixth Circuit, issued January 13, 1993 (Docket No. 91-2215), 985 F.2d 561; 1993 WL 5932, *2 (CA 6, 1993) (reasoning that it is illogical to equate the concept of wrongdoing with random and unauthorized conduct in the presence of an established state procedure, thereby requiring "every plaintiff . . . to plead himself out of court").

Although the majority appears to imply that the rule to be gleaned from Zinermon is clear, there is confusion in the federal circuit courts over the meaning and effect of that case on § 1983 jurisprudence. As the above sampling of the leading cases indicates, the only conclusion that can confidently be stated is that the relationship between Parratt/Hudson and Zinermon requires further clarification.²³

23 The conclusion of the majority is fortified by the Supreme Court's recent reference to Zinermon in Gilbert v Homar, 520 U.S. 924, 930; 117 S.Ct. 1807, 1812; 138 L.Ed.2d 120 (1997):

This Court has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause.

On the other hand, Justice Kennedy has stated more specifically:

[T]he price of our ambivalence over the outer limits of Parratt has been its dilution and, in some respects, its transformation into a mere pleading exercise. The Parratt rule has been avoided by attaching a substantive rather than procedural label to due process claims (a distinction that if accepted in this context could render Parratt a dead letter) and by treating claims based on the Due Process Clause as claim based on some other constitutional provision. . . . It has been avoided at the other end of the spectrum by construing complaints alleging a substantive injury as attacks on the adequacy of state procedures. See Zinermon . . . ; Easter House. . . . These evasions are unjustified given the clarity of the Parratt rule: In the ordinary case where an injury has been caused not by a state law, policy, or procedure, but by a random and unauthorized act that can be remedied by state law, there is no basis for intervention under § 1983, at least in a suit based on "the Due Process Clause of the Fourteenth Amendment simpliciter." [ Albright v Oliver, 510 U.S. 266, 285; 114 S.Ct. 807; 127 L.Ed.2d 114 (1994) (Kennedy, J., concurring).]

C

One way to approach analysis of the controversy involves two models of § 1983 jurisprudence. See Juarez, The Supreme Court as the Cheshire Cat: Escaping the section 1983 wonderland, 25 St Mary's L J 1, 19 (1993). The "Legalist Model" would, consistent with a strict interpretation of Parratt and Hudson, ask only "whether state laws are constitutionally adequate. If there is an adequate state law, then the plaintiff cannot bring a Section 1983 claim, and must instead rely on state-law claims heard, in most cases, in state court." Juarez, supra at 8. Presumably, this approach would encompass both express and implied inadequacies. The "Governmental Model" would allow a § 1983 cause of action where "any state official has infringed the plaintiff's constitutionally protected interests . . . even when the state's lawmakers have sought to prevent the violation of constitutional rights." Id. at 10.²⁴ Although it had appeared that the Legalist Model was the governing model after Hudson, Zinermon added confusion to the equation, demonstrated by the decisions of the federal courts in response. As Juarez noted, "The [ Zinermon] Court concluded by freely mixing the Governmental and Legalist Models, although these two models are contradictory in their approaches." Juarez, supra at 24.²⁵ Although the Zinermon Court clearly reached the result that would be reached under the Governmental Model, Zinermon's use of both the Legalist Model and the Governmental Model has led to divergence among the circuits. The majority in our case also reaches the result that the Governmental Model would yield.

24 See also Alexander, Constitutional torts, the Supreme Court, and the law of noncontradiction: An essay on Zinermon v Burch, 87 NW U L R 576, 576-577 (1993):

[T]he Legalist model . . . speaks to and imposes duties upon government officials when they act a lawmakers. The question . . . is whether the state's laws . . . and allocations of law enforcement resources are constitutionally adequate . . . to protect individuals' constitutionally protected interests. If they are not adequate, . . . the lawmakers are considered to have contributed to the infringement and have themselves violated the plaintiff's constitutional rights.

If the laws are constitutionally adequate, however, . . . under the Legalist model, the Constitution has not been violated even if government officials injure individuals.

* * *

Under [the Governmental] model, the [Due Process Clause] speaks not only to government officials qua lawmakers, but also to the much broader class of all government officials and agents. The question . . . is whether officials of any sort have infringed the plaintiff's constitutionally protected interests, regardless of whether the lawmakers had forbidden and attempted to prevent the infringement. . . . The federal cause of action is available, even in the presence of constitutionally adequate state laws and . . . remedies . . . because the government officials have violated the constitutional command despite the lawmaking officials' efforts to prevent that violation.

As observed above, the difference between a legalist approach and a governmental approach may be irrelevant as to the county's liability if the plaintiffs can establish that the sheriff acted on behalf of and pursuant to an officially sanctioned procedure of the county. It is when the actor's conduct is contrary to the established procedure or where the extent of discretion delegated is unclear that the confusion in the case law becomes relevant.

25 The Governmental Model grows out of a line of cases beginning with Home Telephone Telegraph Co v City of Los Angeles, 227 U.S. 278; 33 S.Ct. 312; 57 L.Ed.510 (1913), and culminating with Monroe v Pape, 365 U.S. 167; 81 S.Ct. 473; 5 L.Ed.2d 492 (1961). Alexander, n 24 supra at 580-581. Parratt and Hudson marked resurrection of the Legalist Model, but Zinermon seems to affirm and reject it at the same time. The Legalist Model can be traced back to Barney v City of New York, 193 U.S. 430; 24 S.Ct. 502; 48 L Ed 737 (1904). Alexander, n 24, supra at 580-581. Parratt and Hudson marked the resurrection of the Legalist Model, but Zinermon seems to affirm and reject it at the same time. See Alexander, n 24 supra at 586-587, quoting Zinermon at 124 (Governmental) and 135 (Legalist). In short, the Zinermon Court's analysis is contradictory because it recognizes first that § 1983 is supplemental to state remedies, thus making the existence of an enforceable state law irrelevant, while simultaneously reasoning that liability was available to Burch under § 1983 because Florida lawmakers may have delegated impermissibly broad discretion on its officials. Alexander, n 24 supra at 586-587. Thus, Alexander observes that "exactly where [the Court] is . . . locating the constitutional defect surely is unclear. Id. at 587.

The Juarez article reviews the scope of the dispute in the circuits as it existed in 1993. "Contrary to Zinermon's description of Parratt as the `unusual' case, the courts of appeals in both published and unpublished decisions clearly favored the Legalist Model . . . us[ing] the Legalist Model in thirty-four appellate decisions, while applying the Governmental Model in only eight." Juarez supra at 31. Similarly, as of 1993, the district courts favored the Legalist Model 23 to 18. Under Easter House, the Seventh Circuit is clearly a Legalist circuit. See Easter House III, supra at 1404-1405. The majority apparently puts us in the minority and at odds with the Seventh Circuit with respect to the interpretation of § 1983 post- Zinermon by reaching the Governmental Model result.²⁶ The leading cases in the Fifth Circuit apply a Legalist approach, see Caine II, supra; Charbonnet v Lee, 951 F.2d 638 (CA 5, 1991), while the Fourth Circuit appears to adhere more closely to the Governmental approach. See Juarez, supra at 30-31; Fields, supra.²⁷ Confusion has also developed within the circuits over how to approach § 1983 after Zinermon to the extent that cases combine both models or different panels or courts in the same circuit apply different approaches. See, e.g., Juarez at 34 (detailing splits within various circuits).

26 The decisions of the Sixth Circuit, at the time of the Juarez study, appeared to favor the Legalist Model slightly.

27 Juarez observes that two factors have driven the lower federal courts toward the Legalist Model despite Zinermon: the flood of § 1983 litigation and federalism, Juarez, supra at 51, but later characterizes these rationales as having "little support in the reality facing the federal courts. . . ." Id. at 66. Notably, Juarez also advocates a return to "pre- Parratt standards" as the solution to the confusion generated by Zinermon, thus reinstituting "the basic principle announced in prior cases: predeprivation process is not required when it is impractical to provide it." Juarez, supra at 62-63. Such an approach would apparently yield the same result as the Court reached in Zinermon, as well as the result the majority reaches here. The three tests set out in Zinermon, and loosely applied by the majority here — (1) whether the deprivation was predictable, (2) whether predeprivation process was not impossible, and (3) whether the defendants' conduct was unauthorized, see Juarez, supra at 24 — would not disappear altogether under this approach. Predictability and impossibility, because they are closely related from a logical standpoint to practicality, would survive under a return the pre- Parratt standards, while the inquiry into whether the conduct was authorized, which, as demonstrated above, is the primary source of the confusion among the courts after Zinermon and Parratt, would be eliminated. Juarez, supra at 63-65. This approach appears to be consistent with the case law predating Parratt, as well as the governmental approach, and would apparently settle the confusion by discarding the third test but continuing to allow dismissals where predeprivation process was impractical.

Although commentators²⁸ and a majority of the federal courts appear to have questioned the validity of the Supreme Court's approach in Zinermon, the majority simply stands on Zinermon and leaves it at that. I have written separately to explore some aspects of the problem to give a signal to the bench and bar regarding the significance of this case and, it is hoped, encourage the Supreme Court to revisit this issue.²⁹

28 In addition to Juarez, supra, see, e.g., Fallon, Some confusions about due process, judicial review, and constitutional remedies, 93 Columbia L R 309, 347-348, n 219 (1993), quoting Bator, ed, Hart Wechsler's The Federal Courts and the Federal System, p 145 (3d ed, supp 1992) (" Zinermon enormously confuses the analysis of random and unauthorized deprivations, . . . makes sense only if read to hold that Florida's procedural scheme . . . was constitutionally defective, . . . [and] `will doubtless be difficult to interpret and apply'. . . . All that seems certain is that the Supreme Court will have to provide clarification. . . . It is therefore unclear . . . whether Zinermon . . . effect[s] a major cutback, or indeed any cutback at all, on the Parratt doctrine."); Oren, Signing into heaven: Zinermon v Burch, federal rights, and state remedies thirty years after Monroe v Pape, 40 Emory L J 1, 8, 67 (1991) (" Zinermon establishes that Parratt is a narrow rule"); Capra, Discretion must be controlled, judicial authority circumscribed, . . . , 50 Md. L R 632, 727-728 (1991) (fair application or Zinermon conflicts with federalism principles underlying Parratt but states can avoid Zinermon relatively easily by writing a statute that circumscribes authority).

29 Ideally, upon such consideration, the Court would adopt more clearly one of the two approaches. The Court could adopt a more "legalist" approach, that addresses only the constitutional adequacy of state laws, policies, and procedures, i.e., whether the state has expressly or impliedly authorized the unconstitutional deprivation, thus leaving plaintiffs to state-law remedies where there is no unconstitutional official act. Alternatively, the Court could adopt a more "governmental" approach that focuses on whether a policymaker has deprived an individual of a constitutionally protected interest, even in the presence of a constitutionally valid act seeking to prevent such a deprivation, thus providing plaintiffs with a federal remedy in the vast majority of cases where predeprivation process was not impractical under the circumstances.

The fundamental problem with Zinermon is that it reaches the more "governmental" result while employing, in part, the more "legalist" inquiry into the authorization issue. For the purposes of our case, the more appropriate result is the one the Governmental Model would reach, although elements of the Legalist approach appear to survive in Justice TAYLOR's opinion as they did in Zinermon. To be certain, lower courts will be better served to err on the side of the Governmental approach, as we have done, rather than seeking to glean a coherent rule from Zinermon.³⁰

30 It may be useful to note, as well, that the relief available in these cases was also addressed in Zinermon, where the Court referenced the fact that

a deprivation of procedural due process is actionable under § 1983 without regard to whether the same deprivation would have taken place even in the presence of proper procedural safeguards. . . . [H]owever, . . . in cases where the deprivation would have occurred anyway, and the lack of due process did not itself cause any injury (such as emotional distress), the plaintiff may recover only nominal damages. [ Id. at 125-126, n 11.]

Section 1983 should stand as a deterrent to the misuse of the judicial process to obtain monies owed under the PRCA. Assuming there is an equitable element to the availability of the recoupment defense, a county's failure to provide due process in seeking reimbursement, in light of the fact that counties have notice of our decision here, would likely be sufficient to preclude assertion of an equitable defense. Moreover, continued failure to provide due process in seeking reimbursement from uncooperative individuals may provide grounds for an award of punitive damages under federal law.
I also note that the statute of limitations applicable to § 1983 claims in Michigan is three years under MCL 600.5805(8); MSA 27A.5805. See, e.g., Krum v Sheppard, 255 F. Supp. 994, 997 (WD Mich, 1966), aff'd 407 F.2d 490, 491 (CA 6, 1967).

Observing a clear disagreement in the federal circuit courts of appeal over the implications of Zinermon, this Court has decided to place itself on one side of the dispute, apparently the minority side. It is hoped that in time, clearer guidance will emerge. Pending such clarification, I concur with the majority's result that plaintiff Mudge has stated a claim under 42 U.S.C. § 1983.³¹

31 Whether Brown also has a cause of action under § 1983 will turn on the determination whether he may collaterally attack the order he signed.

WEAVER, J. I concur only in part I.