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STATE OF MICHIGAN
COURT OF APPEALS


RONALD FIELD and KENNETH J. LASALLE, Plaintiff-Appellees, v

UNPUBLISHED March 11, 1997

No. 176056 Wayne Circuit Court LC No. 93 333693 CZ

WAYNE COUNTY COMMUNITY COLLEGE, Defendant, and JUANITA FORD, LARRY LEWIS, OLLIE MCKINNEY, CHARLES MORTON, and SUE E. RADULOVICH, Defendant-Appellants.

Before: Jansen, P. J., and Reilly, and M.E. Kobza,* JJ. PER CURIAM. The individual defendants (defendants) appeal by leave granted a circuit court order granting plaintiffs' motion to compel defendant Lewis to answer deposition questions. The issue in this case is whether the trial court abused its discretion when it granted plaintiffs' motion to compel in spite of defendants' assertion of an evidentiary privilege. We affirm. Plaintiffs Field and LaSalle were employed as Vice President for Academic Affairs and Vice President for Finance, respectively. Defendants were on the board of trustees of Wayne Community College on November 23, 1993, when they voted to terminate the employment of plaintiffs. Plaintiffs filed a complaint alleging, among other claims, racial discrimination, intentional infliction of emotional distress, defamation, invasion of privacy and conspiracy to interfere with contractual relationships.

* Circuit judge, sitting on the Court of Appeals by assignment. -1

During the deposition of defendant Lewis, defense counsel informed plaintiffs' counsel that he would be instructing Lewis not to answer any question that dealt with Lewis' motives in voting to fire plaintiffs. Defense counsel stated his reliance on Sheffield Development Co v City of Troy, 99 Mich App 527; 298 NW2d 23 (1980) and Chonich v Ford, 115 Mich App 461; 321 NW2d 693 (1982). Plaintiffs' counsel ended the deposition, and filed a motion to compel pursuant to MCR 2.313(A)(2)(a) and 2.306(D)(3) and (G). Plaintiffs argued that defendants' motive for voting to terminate plaintiffs' employment was relevant to plaintiffs' claims and that there was no privilege prohibiting inquiry into Lewis' motives for firing plaintiffs. In their response to the motion, defendants again relied on Sheffield and Chonich to support the assertion of a privilege. Defendants' brief did not identify whether they were asserting an evidentiary privilege1 or the defense of privilege2 and did not distinguish between the two in their arguments. For example, they asserted that the alleged defamatory statements would be absolutely privileged. They also stated, "Plaintiffs' Complaint contains numerous allegations but do [sic] not include any allegations which would avoid the privilege asserted." These statements suggest that defendants were arguing that the claims were barred by a defense of privilege. However, defendants also argued that Sheffield held that there was limited judicial review for any inquiry into legislators' motives behind their decisions and that Chonich held that the board of trustees is a legislative body. The thrust of defendants' argument in their response to plaintiffs' motion was that Sheffield precluded plaintiffs from questioning defendants about their motives for their votes. Thus, the argument essentially asserted the existence of an evidentiary privilege. The trial court held that Chonich and Sheffield did not preclude plaintiffs from inquiring about the individual defendants' reasons for the decision to terminate plaintiffs' employment because that decision was not legislative in nature. The court distinguished between the legislature's "enacting laws and carrying out public business" and its "dealing with their own in-house personnel matters . . . ." The court granted plaintiffs' motion to compel. A motion to compel discovery is a matter within the trial court's discretion, which we review for a an abuse of discretion. Linebaugh v Sheraton Michigan Corp, 198 Mich App 335, 343; 497 NW2d 585 (1993). Michigan law is strongly committed to open and far-reaching discovery, and generally provides for discovery of any relevant, non-privileged matter. Ostoin v Waterford Twp Police, 189 Mich App 334, 337; 471 NW2d 666 (1991). In accordance with MRE 501, the existence of an evidentiary privilege is governed by common law, except where modified by statute or court rule. Id. Because we are reviewing the court's ruling on plaintiffs' motion to compel, defendants' arguments concerning the defense of privilege are not properly before us. Citing Tenney v Brandhov , 341 US 367; 71 S Ct 783; 95 L Ed 2d 1019 (1951), defendants assert that the doctrine of legislative immunity protects the defendants from liability for their conduct "while acting in the sphere of legitimate legislative activity." The defense of privilege is properly raised in a motion for summary disposition pursuant to MCR 2.116(C)(7) ("[t]he claim is barred because of . . . immunity granted by law . . . .") -2

Whether the individual defendants are immune from liability on any or all of the claims raised by plaintiffs is not properly before us now when we are reviewing the court's ruling on the motion to compel. Defendants appear to assert the evidentiary privilege that is applicable to state legislators and is based on the Speech or Debate Clause of the Michigan Constitution, Const 1963, art 4,

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