Summary
adopting the three-prong Rumery analysis
Summary of this case from Marshall v. City of Farmington HillsOpinion
Docket No. 180006.
Submitted July 17, 1996, at Detroit.
Decided September 6, 1996, at 9:20 A.M. Leave to appeal sought.
Alexander M. Kelin, P.C. (by Alexander M. Kelin), for the plaintiff.
John H. Dise, Jr., and Gina U. Puzzuoli, for the defendants.
Plaintiff appeals as of right an order granting summary disposition for defendants pursuant to MCR 2.116 (C)(7) and (10). The principal issue on appeal is whether a release that relinquishes a criminal defendant's right to file a civil action in exchange for the dismissal of criminal charges is enforceable. We hold that release-dismissal agreements are not invalid per se, but that such agreements must be rigorously scrutinized in accordance with the standards set forth in Town of Newton v Rumery, 480 U.S. 386; 107 S Ct 1187; 94 L Ed 2d 405 (1987). Accordingly, we reverse in part and remand for reconsideration in light of Rumery.
I
After responding to plaintiff's girlfriend's request for assistance, defendant Officers Timothy Culp and Rory Johnson attempted to encourage the intoxicated plaintiff to leave his girlfriend's home. When plaintiff finally walked outside the home, he was arrested after a loud and profane protest. Plaintiff alleges that as he was being forced into a police vehicle, one of the officers struck plaintiff's lower thigh, causing plaintiff's knee to fracture.
Following his arrest and alleged injury, plaintiff was charged with trespassing. The criminal charge was dismissed, however, after plaintiff agreed to sign a release discharging the city and its employees from all civil liability arising out of his arrest. Notwithstanding the executed release, plaintiff filed suit against defendants, alleging that he sustained damages caused by excessive force inflicted by Officers Culp, Johnson, and J. R. Beaver. Additionally, plaintiff alleged that defendant city negligently hired and trained defendant officers, that the officers deprived plaintiff of liberty without due process of law, and that the city practiced a "custom or policy" that caused a violation of plaintiff's state and federal constitutional rights. The trial court granted summary disposition for all defendants with regard to all claims.
Although defendants removed this case to federal court, plaintiff's state claims were remanded to the trial court. On December 21, 1993, a stipulation and order was entered dismissing all plaintiff's federal claims.
II
On appeal, plaintiff first argues that an agreement releasing a municipality and its employees from civil liability in exchange for the dismissal of criminal charges violates public policy and is unenforceable per se. In reviewing a motion for summary disposition pursuant to MCR 2.116 (C)(7), we accept plaintiff's well-pleaded allegations as true, Shawl v Dhital, 209 Mich. App. 321, 323; 529 N.W.2d 661 (1995); Simmons v Apex Drug Stores, Inc, 201 Mich. App. 250, 252; 506 N.W.2d 562 (1993), and examine any pleadings, affidavits, depositions, admissions, and documentary evidence submitted by the parties in a light most favorable to the nonmovant. MCR 2.116 (G)(5); Skotak v Vic Tanny Int'l, Inc, 203 Mich. App. 616, 617; 513 N.W.2d 428 (1994). If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the trial court must enter judgment without delay. MCR 2.116 (I)(1); Skotak, supra at 617; Nationwide Mutual Ins Co v Quality Builders, Inc, 192 Mich. App. 643, 647-648; 482 N.W.2d 474 (1992).
In Gray v Galesburg, 71 Mich. App. 161; 247 N.W.2d 338 (1976), this Court adopted a rule invalidating release-dismissal agreements per se. In support of its holding, the Gray panel first concluded that such agreements effectively "bargain away the people's right to see criminal offenders prosecuted, in return for an agreement to hold harmless private individuals which, at best, is of indirect public value and, at worst, directly contravenes the public interest." Id. at 164. Second, this Court determined that "[t]he extraction of such a release while the defendant is in custody presents too great an opportunity for officials to employ coercion." Id. at 165. Finally, the Gray panel reasoned that "a desire on the part of the prosecuting authority to extract police officers from possible liability offers an undeniable temptation to concoct or exaggerate the charges against the defendant to enhance his bargaining position." Id.; see also Boyd v Adams, 513 F.2d 83, 88-89 (CA 7, 1975); Dixon v Dist of Columbia, 129 US App DC 341, 343-344; 394 F.2d 966 (1968).
Subsequently, in Rumery, supra, the United States Supreme Court refused to invalidate all release-dismissal agreements simply because some agreements may encroach public policy. Noting that criminal defendants are often faced with "difficult choices that effectively waive constitutional rights" and that there exists "no reason to believe that release-dismissal agreements pose a more coercive choice than other situations" where defendants waive constitutional rights, the lead opinion in Rumery rejected the proposition that release-dismissal agreements are inherently coercive. Id. at 393. Writing for the Court, Justice Powell recognized that some release-dismissal agreements "will reflect a highly rational judgment that the certain benefits of escaping criminal prosecution exceed the speculative benefits of prevailing in a civil action." Id. at 394. In her concurring opinion, Justice O'Connor agreed that release-dismissal agreements can further public interests by protecting government employees from the expensive, time-consuming task of defending against meritless civil claims. Id. at 399-400 (O'Connor, J., concurring in part), see id. at 395-396. Consequently, a majority of the justices rejected a rule invalidating such agreements per se and agreed that release-dismissal agreements should be analyzed case by case. Id. at 392-393; id. at 399 (O'Connor, J., concurring in part).
Justice O'Connor joined in parts I, II, III-A, IV, and V of Justice Powell's opinion, thereby making these sections the opinion of the Court.
Even Justice Stevens, writing for the four dissenters, stated: "Because this is the first case of this kind that the Court has reviewed, I am hesitant to adopt an absolute rule invalidating all such agreements." Rumery, supra at 417 (Stevens, J., dissenting).
In evaluating the release in Rumery, Justices Powell and O'Connor each analyzed several "important interests" that should be balanced in determining its enforceability. Id. at 392, 395; id. at 399 (O'Connor, J., concurring in part). Reading the Rumery lead and concurring opinions together, the Court of Appeals for the Sixth Circuit in Coughlen v Coots, 5 F.3d 970, 974 (CA 6, 1993), summarized the Rumery holding as follows:
[T]he Rumery opinion instructs us that before a court properly may conclude that a particular release-dismissal agreement is enforceable, it must specifically determine that (1) the agreement was voluntary; (2) there was no evidence of prosecutorial misconduct; and (3) enforcement of the agreement will not adversely affect relevant public interests. The burden of proving each of these points falls upon the party . . . who seeks to invoke the agreement.
See Rumery, supra at 397-398; id. at 399, 401 (O'Connor, J., concurring in part); see also Hill v Cleveland, 12 F.3d 575, 578 (CA 6, 1993); Cain v Darby Borough, 7 F.3d 377, 380 (CA 3, 1993); Woods v Rhodes, 994 F.2d 494, 499 (CA 8, 1993); Berry v Peterson, 887 F.2d 635, 637 (CA 5, 1989); Lynch v Alhambra, 880 F.2d 1122, 1126 (CA 9, 1989).
A
In assessing the voluntariness of a particular release-dismissal agreement, the trial court should consider (1) the sophistication of the criminal defendant, (2) whether the signer of the release was in custody at the time of signing, (3) whether the signer was represented by counsel, (4) whether the signer had ample time to consider the agreement before signing it, (5) whether the signer expressed any unwillingness, and (6) whether the release is clear on its face. See Rumery, supra at 394; id. at 401-402 (O'Connor, J., concurring in part); Hill, supra at 578; Livingstone v North Belle Vernon Borough, 12 F.3d 1205, 1210 (CA 3, 1993); Woods, supra at 499; Berry, supra at 639-640; Poling v Ferguson, 878 F. Supp. 880, 882 (ND W Va, 1995).
B
Next, in addressing the issue of "prosecutorial overreaching" or misconduct, the party seeking enforcement must show that the prosecutor's pursuit of a release-dismissal agreement arose from a case-specific concern for the public interest, rather than a concern for the private interests of governmental officials. See Rumery, supra at 395, 398; Livingstone, supra at 1215; Cain, supra at 381; Woods, supra at 500; see, generally, Hammond v Bales, 843 F.2d 1320, 1322 (CA 10, 1988). With regard to this issue, we agree with and adopt the following principles articulated by the Court of Appeals for the Sixth Circuit in Coughlen, supra at 974:
[T]hese agreements should be scrutinized closely in cases where substantial evidence supports an allegation of police misconduct, in view of the potential for abuse of release-dismissal agreements by law enforcement officials. [ Rumery] at 394-95, 107 S Ct at 1192-93 (plurality opinion); id. at 400, 107 S Ct at 1196 (O'Connor, J., concurring in part and in the judgment). Examples of such prosecutorial misconduct would include situations where, following their use of excessive force, police officers file unfounded criminal charges as bargaining chips to cover up their own conduct or to induce the victim to give up his cause of action; or where a prosecutor, upon discovering that the victim has a meritorious civil claim, files frivolous criminal charges in order to protect the police officers. Accordingly, should a court conclude that a prosecutor secured a release-dismissal bargain in the face of substantial evidence of police misconduct, the court could take this as evidence of prosecutorial misconduct, since it would demonstrate that "the coercive power of criminal process" was being "twisted to serve the end of suppressing complaints against official abuse, to the detriment not only of the victim of such abuse, but also of society as a whole." Id. at 400, 107 S Ct at 1196 (O'Connor, J., concurring in part and in the judgment).
C
Finally, in regard to the public interest, we caution that release-dismissals that arise from the public policy violations identified in Gray should not be enforced. Nonetheless, the mere potential for such harm should not invalidate those agreements that do not involve such policy transgressions. In our view, the flexible Rumery approach protects against the potential misconduct discussed in Gray while allowing for situations where release-dismissal agreements advance the public interest. In other words, Rumery appropriately rejects speculative risks or pessimistic assumptions regarding prosecutorial overreaching or misconduct that would otherwise nullify the legitimate exercise of prosecutorial discretion. See Rumery, supra at 395-397. Adopting the Rumery standards also avoids the inconsistency that would result if actions brought under the Michigan Constitution were evaluated by a test different from claims brought under 42 U.S.C. § 1983. See Rumery, supra at 392. For these reasons, we hereby adopt and follow Town of Newton v Rumery and reject the rule invalidating release-dismissal agreements per se of Gray v Galesburg.
D
In the present case, the trial court did not analyze the relevant factors established by Rumery. Instead, the trial court upheld the release simply because it was applicable and unambiguous. Accordingly, we reverse and remand with instructions for the trial court to make the specific evaluations called for by this opinion. We emphasize that strong policy reasons mitigate against the enforcement of release-dismissal agreements where the released claims involve meritorious claims of police brutality. See Rumery, supra at 394-395; id. at 400 (O'Connor, J., concurring in part); Coughlen, supra; Lynch, supra at 1127; Gray, supra; see, generally, Jones v Taber, 648 F.2d 1201 (CA 9, 1981); Hylton v Phillips, 270 Or. 766; 529 P.2d 906 (1974). Such agreements usually present an unreasonable risk of impairing the public interest by jeopardizing the integrity of the criminal justice process.
III
Plaintiff also claims that the trial court erred in ruling that defendant city is immune from liability with regard to plaintiff's constitutional claims. We agree. In Smith v Dep't of Public Health, 428 Mich. 540, 544; 410 N.W.2d 749 (1987), our Supreme Court held that governmental immunity is unavailable where the plaintiff alleges that a governmental agency violated a right conferred by the state constitution. See also Marlin v Detroit, 177 Mich. App. 108, 114; 441 N.W.2d 45 (1989); Burdette v Michigan, 166 Mich. App. 406; 421 N.W.2d 185 (1988). The holding in Smith is not limited to state offices, but applies to municipalities as well. See Marlin, supra at 114. Accordingly, pursuant to Smith, we remand for a determination whether plaintiff sufficiently pleaded and factually supported his claim that the city violated the Michigan Constitution by virtue of a specific custom or policy. However, because plaintiff does not contest the bar of immunity to nonconstitutional claims, summary disposition for defendant city is affirmed with regard to all other claims.
IV
Finally, plaintiff argues that summary disposition was improperly granted for defendant Beaver. According to plaintiff, there is a triable issue of fact whether Officer Beaver caused plaintiff's injury. We disagree. We review the trial court's ruling regarding a motion for summary disposition pursuant to MCR 2.116 (C)(10) de novo to determine whether the pleadings or the uncontroverted documentary evidence establish that defendant is entitled to judgment as a matter of law. MCR 2.116 (I)(1); Kennedy v Auto Club of Michigan, 215 Mich. App. 264, 266; 544 N.W.2d 750 (1996). The existence of either circumstance merits a grant of summary disposition. Id. at 266.
Here, defendants established by documentary evidence that Officer Beaver did not participate in plaintiff's arrest because Beaver was stationed at the jail at that time. Plaintiff offered no evidence to counter defendants' factual showing. Therefore, because plaintiff admitted at his deposition that he was not maltreated at the police station, the trial court correctly ruled that plaintiff failed to raise a genuine issue of material fact to support his allegations against defendant Beaver. MCR 2.116(G)(4).
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.