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Whistleblowers Protection Act Clarified

Posted on Wednesday, May 25, 2016
As we reported earlier, employees looking for job protection under the Whistleblowers Protection Act (WPA) will have to search elsewhere when they report a suspected future violation of the law under the Michigan Supreme Court ruling in Pace v Edel-Harrelson No. 151374. The court held that such reports were not “protected activity” under the WPA. It remanded the case back to the Court of Appeals for consideration of the plaintiff’s claim that her termination was a violation of public policy.

The Court of Appeals (COA) affirmed the lower court’s dismissal of the matter holding that plaintiff’s discharge was not a violation of public policy.

Barbara Pace, employee of the SIREN Eaton Shelter, Inc, noticed some discrepancies in grant funding records. Pace was told that the company’s operations manager, Christy Long, was planning to use some funds to buy a stove for her personal use. When Pace reported her concerns to management, she was fired. She brought suit in Eaton County Circuit Court. The case proceeded as follows:

·         -  The Eaton County Circuit Court dismissed the case ruling that Pace had failed to show that a “violation or suspected violation of law,” as required by the WPA, had occurred.

·        -   Pace appealed to the Court of Appeals, which reversed the Circuit Court holding that she had presented enough evidence to show she was engaged in a “protected activity” when she reported her suspicions and her reporting led to her firing.

·         -  The defendants filed an application for leave to appeal to the Supreme Court.

·        -  The Supreme Court, after deciding that the WPA doesn’t protect the reporting of future, planned or anticipated actions, sent the matter back to the COA for consideration of Pace’s public policy claim.

In Michigan, most employment situations are presumed to be at-will, meaning they can be ended by the will of either party. Case law has recognized an exception if the termination is contrary to public policy. The Supreme Court said that the boundaries of public policy must be found in policies adopted by the people through legal processes, found in state and federal constitutions, statutes or the common law. (Terrien v Zwitt, 467 Mich 56, 66-67).

Courts must find public policy in objective sources.

Plaintiff Pace only cited the WPA as her source of public policy. However, according to the COA, under the WPA, “the only public policy expressed by the legislature was to protect employees who report already-occurred violations or suspected violations of the law.” Since Pace didn’t meet this requirement or cite any other source of public policy, the court reversed its prior decision in the case, affirming the Eaton Circuit Court decision, dismissing her claim.  


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Ruminations on the Delayed Application Court Rule

Posted on Monday, May 16, 2016
Under MCR 7.205(G)(3), appellate counsel has always assumed that there was a 6 month absolute deadline for filing an application for leave in the Court of Appeals (subject to specific jurisdictional and criminal exceptions). MCR 7.205(G)(3) states:

[L]eave to appeal may not be granted if an application for leave to appeal is filed more than 6 months after the later of: 
(a) entry of a final judgment or other order that could have been the subject of an appeal of right, or 
(b) entry of the order or judgment to be appealed from....

However, upon close examination, the court rule states only that the Court may not grant leave, it does not say that an application may not be filed. This leads to the question:

Can the Court of Appeals grant other forms of relief when an application is filed after the 6 month mark?

Under MCR 7.216(A) and (B), it appears the answer could be yes. MCR 7.216(A)(7) authorizes the Court to “enter any judgment or order or grant further or different relief as the case may require.” Further, MCR 7.216(B) states,

When any nonjurisdictional act is required to be done within a designated time, the Court of Appeals may permit it to be done after expiration of the period on motion showing that there was good cause for delay or that it was not due to the culpable negligence of the party or attorney.

Accordingly, it appears that the Court could grant relief after the cutoff date for filing has expired, so long as the delay is not the fault of the party or counsel. MCR 7.205(G)(3) simply prohibits the Court of Appeals from granting leave when the application is filed after 6 months, not granting other relief, such as a peremptory reversal.

Warning, this theory has not been tested, but it is an interesting argument to raise if a client is beyond the 6 month deadline.

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U.S. Supreme Court declines Michigan deputies’ appeal in excessive force case

Posted on Tuesday, May 10, 2016
   The United States Supreme Court has denied an appeal in the case of two Macomb County deputies who were sued for civil rights violations when making an arrest.
   The 6th U.S. Circuit Court of Appeals, in Baynes v Cleland (Docket No. 14-2235), ruled the defendant police officers could be held liable for handcuffing the plaintiff, Alan Baynes, too tightly during his domestic violence arrest. In so finding, the 6th Circuit reversed the Eastern District of Michigan, which had granted summary judgment for the defendants based on qualified immunity.
   During his arrest, the plaintiff claimed that he told the defendants that his handcuffs were too tight. After he was released from jail, the plaintiff was treated for injuries to his wrists and was diagnosed with “bilateral radial sensory neuropathy from handcuffs.” He was prescribed wrist guards to wear.
   The plaintiff sued the defendants under 42 USC § 1983, asserting they violated the Fourth and Fourteenth Amendments by using excessive force that caused him severe and permanent injuries. After the Eastern District granted summary judgment for the defendants, the plaintiff appealed.
   The 6th Circuit reversed the Eastern District. In so doing, the court emphasized there is plenty of case law holding that excessively tight handcuffing is a constitutional violation. In particular, the 6th Circuit cited the U.S. Supreme Court’s ruling in Hope v Pelzer, 536 US 730 (2002), for the proposition that officials must be on notice that their alleged conduct was unconstitutional.
   “In Hope, the Supreme Court established that, for purposes of qualified immunity, the precise factual scenario need not have been found unconstitutional for it to be sufficiently clear to a reasonable official that his actions violate a constitutional right — that is, for the right to be ‘clearly established,’” the 6th Circuit said. “In fact, the Supreme Court determined that government officials can still be on notice that their conduct violates established law even in novel factual circumstances.”
   The 6th Circuit further noted the court has consistently held that excessively forceful handcuffing violates the Fourth Amendment, and that its rulings sufficiently put a reasonable officer on notice that “unduly tight handcuffing” is a constitutional violation. Therefore, “the law is sufficiently clear for the purpose of the clearly established prong of the qualified immunity analysis,” the 6th Circuit said.  
   Applying these principles this case, the 6th Circuit said that, while the Eastern District recognized there is a general right to be free from unduly tight handcuffing, the district court proceeded to mistakenly find that the right was not clearly established in this case because a reasonable officer would not have known that he was violating the plaintiff’s Fourth Amendment rights.
   According to the 6th Circuit, the Eastern District relied too heavily on the unpublished opinion in Fettes v Hendershot, 375 F App’x 528 (6th Cir, 2010). “It was at this point that the district court erred,” the 6th Circuit said. “The factual nuances the district court noted to distinguish [the plaintiff’s] case from this Court’s extensive precedent on unduly tight handcuffing amount to precisely the kind of rigidity the Supreme Court foreclosed in Hope.”
   The defendants thereafter appealed the 6th Circuit's decision to the U.S. Supreme Court, which denied the petition for writ of certiorari on March 7, 2016 (Docket No. 15-852).


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Appellate Delay Disturbing in Custody/Parenting Time Matter

Posted on Wednesday, May 4, 2016
In Teruya v Burgan, Docket No. 325126, issued April 7, 2016, a Michigan mother and Californian father of three children, who were conceived by in vitro fertilization insemination, disputed rights regarding parenting time and the father filed a complaint for paternity in Wayne Circuit Court. The court found that the father established paternity and then issued an order that promised a future order of filiation and support. The father then filed a motion for specific parenting and communication time with the children, which the court granted and issued a second parenting time order. The defendant/mother appealed this order on November 16, 2014, contending that the circuit court had wrongly granted parenting time before it entered an order of filiation or before it made a determination of the best interests of the children.  However, less than a month later, the parties stipulated to an order regarding filiation, child custody, parenting time and child support. Due to the stipulated order, on April 7, 2016, the Court of Appeals issued its opinion that the case was moot.

The mother argued that, though her specific case may be moot, her questions were of public interest and capable of repetition while evading judicial review. While the Court stated that it will hear such cases of public interest, this case did not meet those requirements and there was no relief the Court of Appeals could provide.

However, the disturbing aspect of this case is that it took well over a year from briefing for the Court of Appeals to issue an opinion. The Appellant-Mother’s application for leave was granted on December 26, 2014, her brief filed on January 23, 2015, no Appellee’s brief was filed, the Court of Appeals received the trial record on March 23, 2015, and finally, the case was submitted to panel on April 05, 2016, with the opinion issued April 7, 2016. MCR 7.213(C) states that child custody cases are given priority on the session calendar. While this case was determined moot, and therefore not overwhelmingly concerning by itself, a parenting time case still concerns the custody of a child and should be given priority on the calendar as such. It is alarming that a case may be presented to the Court that alleges that an individual received parenting time without formal recognition as the child’s parent, or without having the child’s best interest factors addressed, and it may not reach the Court until a year later. Although it is possible that the case was not “flagged” by the attorney as a priority case, the Court of Appeals docket clearly indicates that the order appealed from relates to “parental time” and the Court of Appeals decided the Application on an emergency basis (granting leave ten days after the Application was filed).

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