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Bauer v. House of Representatives

STATE OF MICHIGAN COURT OF APPEALS
Nov 21, 2019
No. 346862 (Mich. Ct. App. Nov. 21, 2019)

Opinion

No. 346862

11-21-2019

CINDY BAUER, Plaintiff-Appellant, v. HOUSE OF REPRESENTATIVES, Defendant-Appellee.


If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Court of Claims
LC No. 18-000144-MM Before: TUKEL, P.J., and SAWYER and RIORDAN, JJ. PER CURIAM.

Plaintiff appeals from an order of the Court of Claims granting summary disposition in favor of defendant for plaintiff's failure to state a claim upon which relief can be granted. We affirm.

Plaintiff, known as Cindy Gamrat during the times relevant to this case, was a member of the Michigan House of Representatives. Defendant expelled her from the House for unauthorized utilizing of state resources. Following her expulsion, and an unsuccessful attempt at a federal lawsuit, she unsuccessfully pursued this action.

In a detailed and well-reasoned opinion, the Court of Claims concluded for a number of reasons that plaintiff has failed to state a claim in her amended complaint against defendant. We are not persuaded that plaintiff has demonstrated on appeal that the trial court erred in its determination. This Court stated the standard of review of motions under MCR 2.116(C)(8) in Mays v Governor, 323 Mich 1, 56-57; 916 NW2d 221 (2018):

Defendants moved for summary disposition of plaintiffs' injury-to-bodily-integrity claims under MCR 2.116(C)(8). Summary disposition is proper under MCR 2.116(C)(8) if the opposing party has failed to state a claim on which relief can be granted. Henry v Dow Chem Co, 473 Mich 63, 71; 701 NW2d 684 (2005). "A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint and allows consideration of only the pleadings." MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). "For purposes of reviewing a motion for summary disposition under MCR 2.116(C)(8), all well-
pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant." Ernsting v Ave Maria College, 274 Mich App 506, 509; 736 NW2d 574 (2007). A motion under MCR 2.116(C)(8) may only be granted "where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004) (quotation marks and citation omitted). This Court reviews constitutional questions de novo. Associated Builders & Contractors v Lansing, 499 Mich 177, 183; 880 NW2d 765 (2016).

Plaintiff's complaint alleges just one count, a constitutional tort based upon an alleged violation of the Fair and Just Treatment Clause of the Michigan Constitution, Const 1963, art 1, § 17. That clause in pertinent part provides as follows: "The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed."

Initially, the trial court concluded that plaintiff failed to adequately plead a constitutional tort based upon § 17. This Court discussed what must be shown to establish a constitutional tort in Mays, 323 Mich App at 57:

The Michigan Supreme Court has held that "[a] claim for damages against the state arising from [a] violation by the state of the Michigan Constitution may be recognized in appropriate cases." Smith v Dep't of Pub Health, 428 Mich 540, 544; 410 NW2d 749 (1987). "The first step in recognizing a damage remedy for injury consequent to a violation of our Michigan Constitution is, obviously, to establish the constitutional violation itself." Marlin v Detroit (After Remand), 205 Mich App 335, 338; 517 NW2d 305 (1994) (quotation marks and citation omitted).

Following Smith, this Court held that to establish a violation of the Constitution, a plaintiff must show that the state action at issue (1) deprived the plaintiff of a substantive constitutional right and (2) was executed pursuant to an official custom or policy. Carlton v Dep't of Corrections, 215 Mich App 490, 505; 546 NW2d 671 (1996), citing Monell v New York City Dep't of Social Servs, 436 US 658, 694; 98 S Ct 2018; 56 L Ed 2d 611 (1978). The Court further directed that "[t]he policy or custom must be the moving force behind the constitutional violation in order to establish liability." Carlton, 215 Mich App at 505.

We note at the outset that the Court of Claims articulated the proper test before engaging in a thorough analysis of the viability of plaintiffs' constitutional tort claim for injury to bodily integrity. However, we must review the matter de novo, giving no deference to the lower court decision, in order to determine whether defendants were entitled to judgment as a matter of law. Scalise v Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d 858 (2005). Thus, before we may decide whether it is appropriate to recognize a cause of action under the Due Process Clause of the Michigan Constitution for violation of plaintiffs' rights to
bodily integrity, we must first determine whether plaintiffs have alleged facts that, if proved true, are sufficient to establish such a violation.
The Mays court further noted that it is necessary to "first determine whether plaintiffs have alleged facts that, if proved true, are sufficient to establish such a violation." 323 Mich App at 58.

Plaintiff's failure to identify an official policy or custom that deprived her of a constitutional right would, in and of itself, be sufficient for both this Court and the trial court to end its analysis and rule against plaintiff. Nevertheless, the trial court continued on and analyzed plaintiff's allegations. It concluded that, even accepting the allegations as true, they do not adequately state a claim. The court noted that many of the allegations of unjust and unfair treatment concern activity that preceded any investigation or hearing, and thus outside the scope of § 17, and the remainder "do not sound in the nature of unfair or unjust proceedings." We agree and will briefly review plaintiff's arguments as well, although we are fully satisfied with the thoughtful analysis of the trial court.

In her brief on appeal, plaintiff identifies the following paragraphs in her complaint as setting forth a violation of the Fair and Just Treatment Clause:

15. It was well-known that during their campaigns, Bauer and Courser strongly opposed Proposal 15-1, which was a proposal to fund Michigan roads through, among other things, increases in taxes.

34. On January 15, 2015--Bauer's first day after being sworn into office--Cotter directed Bauer and the other Republican State Representatives to sign a "Caucus Pledge" that required her to pledge her votes on important issues to caucus (i.e. Cotter) instead of voting based on the desires of the constituents in her district.

35. Cotter instructed the State Representatives that this Caucus Pledge and its contents were to remain confidential.

36. Bauer felt that Cotter's actions--along with the Pledge itself--were unethical, and she refused to sign the Pledge. Later that day, Bauer was called to a private meeting with Cotter and his Deputy Chief of Staff, Brock Swartzle, where Cotter demanded that she sign the Pledge as a requirement of membership in his Republican Caucus.

77. On April 15, 2015, Cotter physically removed Bauer from the Republican Caucus, alleging she broke the "Caucus Pledge" confidentiality agreement through a Facebook post she made communicating to her constituents about the House Budget.

78. Cotter's actions sent a strong message to the other State Representatives about the consequences of breaking the Caucus
Pledge. Cotter never allowed Bauer to return to caucus, inflicting damage to her in her official capacity as State Representative.

162. Shortly after Bauer was expelled and Courser was forced out, the House Road Package was passed, superseding the decision of the Michigan electorate on Proposal 15-1.

163. While in office, Bauer and Courser had been successful at preventing the tax and fee increases in the package from passing. With them out, however, the composition of the House was changed, and one of the bills in the House Road Package passed by a vote of 54-53 in the House--narrowly passing by just one vote.

164. Had Bauer and Courser still been in office, the legislation would not have passed.
As pointed out by the trial court, none of these allegations deal with the treatment of plaintiff during the investigation and hearing into her illicit affair with Representative Courser or plaintiff's subsequent expulsion from the House. Plaintiff also identifies paragraph 42 in her complaint, which deals with Speaker Cotter's handling of a bill introduced into the House by plaintiff. But once again, it has nothing to do with plaintiff's treatment during the investigation and hearing. At most, these allegations establish an animosity towards plaintiff by the Speaker and perhaps a motive for wanting her out of the House. The allegations do not, however, establish any unfair or unjust treatment during the investigation and hearing itself.

Plaintiff next points to two allegations regarding past practice of the House:

176. To further demonstrate the unfair and unjust nature of the investigation and hearings, Bauer was not afforded the same procedure afforded to past legislators facing censure or expulsion.

177. In fact, several other past members of the State Congress have committed felonies and other misconduct and never faced censure or expulsion.
She then shows how the proceedings involving her compare to proceedings in three previous expulsions, spanning from 1887 to 2001. The flaw in plaintiff's reasoning is that there is no one practice set into place as to how the House is to conduct its proceedings. There is no reason to conclude that because the House in 2015 did not follow the same process as it had in the expulsion of Milo Dakin in 1887 that plaintiff was treated unfairly or unjustly. The question is not how previous proceedings were conducted, but whether the investigation and hearing against plaintiff was unfair or unjust.

Plaintiff next argues that the trial court made factual assessments rather than accepting the allegations in her complaint as true. But in reading the trial court's opinion, it is clear that the trial court understood that it must accept the allegations as pled in its consideration of a motion under MCR 2.116(C)(8) and did so. Plaintiff additionally points again to the above- quoted portions of her complaint, as well as additional portions. But again, many of these allegations go outside the scope of any investigation or hearing, the only activity to which § 17 applies.

Some of these allegations do address the make-up of the committee and the procedures that it employed or what the committee failed to do. With respect to the latter point, as the trial court observed, this Court has held that § 17 only applies to active conduct. By Lo Oil Co v Dept of Treasury, 267 Mich App 19, 41; 703 NW2d 822 (2005). Accordingly, any complaint about what the committee did not do simply does not fall within the scope of the Fair and Just Treatment Clause.

Indeed, the crux of plaintiff's argument at this point is that the proceedings lead to the point where she read a statement to the committee that essentially admitted to all of the material allegations in a belief that it would lead to her censure rather expulsion. And that, of course, was not the final result. But as both the trial court in this case and the federal court in plaintiff's federal lawsuit observed, there are no guarantees as to what a legislative body will do nor can any member of the body, including the Speaker, ultimately guarantee the outcome. In sum, plaintiff chose to admit to her wrongdoing in hopes of leniency, but that ultimately did not happen. While that might ultimately provide a reason for plaintiff to be disappointed in the outcome, it does not provide a basis for a lawsuit.

Affirmed. Defendant may tax costs.

/s/ Jonathan Tukel

/s/ David H. Sawyer

/s/ Michael J. Riordan


Summaries of

Bauer v. House of Representatives

STATE OF MICHIGAN COURT OF APPEALS
Nov 21, 2019
No. 346862 (Mich. Ct. App. Nov. 21, 2019)
Case details for

Bauer v. House of Representatives

Case Details

Full title:CINDY BAUER, Plaintiff-Appellant, v. HOUSE OF REPRESENTATIVES…

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Nov 21, 2019

Citations

No. 346862 (Mich. Ct. App. Nov. 21, 2019)