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Michigan Supreme Court Lansing, Michigan

Opinion
STEPHEN W. WARDA, Plaintiff-Appellee, v CITY COUNCIL OF THE CITY OF FLUSHING AND CITY OF FLUSHING, Defendants-Appellants. _______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J. The question presented in

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED MAY 18, 2005

No. 125561

this

case

is

whether,

pursuant to MCL 691.1408(2), Michigan courts possess the authority to review a city council's discretionary decision to grant or deny reimbursement of private attorney fees incurred council's by a city police under officer. this Because the city a

decision

statute

constitutes

discretionary act of a separate branch of government, the judiciary is without authority to review it. Accordingly,

we reverse the judgment of the Court of Appeals and remand

this matter to the circuit court for entry of an order dismissing plaintiff's claims. I. Plaintiff Facts and Procedural History was a Flushing police officer for

approximately twenty years. suggestion of the chief of

Early in his career, at the police, plaintiff obtained

special training from the Secretary of State that certified him to inspect "salvage vehicles."1 Plaintiff's employer

paid for the training, and plaintiff received his regular pay while he attended the salvage vehicle inspection

course. At all times relevant to this case, an inspection fee of $25 was established by statute. the occasions that plaintiff MCL 257.217c(7). inspections On in

conducted

Flushing, plaintiff turned over this fee to the city, which deducted taxes and then remitted the balance to plaintiff along with his regular pay. On those occasions plaintiff

conducted inspections outside Flushing, neither the police department nor the city of Flushing received any part of MCL 257.217c concerns the acquisition and transfer of distressed vehicles. In general, a seriously damaged vehicle (i.e., a "distressed vehicle" as defined by MCL 257.12a) must be issued a salvage certificate of title. The process of obtaining such a title requires an inspection and certification of certain matters by a specially trained officer. The specially trained officer must be a police officer and must be certified by the Secretary of State. MCL 257.217c(25), (26). The Secretary of State is responsible for overseeing the conduct of specially trained officers, and may suspend, revoke, or deny an officer's certification. MCL 257.217c(26). 2
1

the associated fees.

Plaintiff conducted the vast majority

of his inspections outside his regular duty shift hours. Plaintiff characterized his inspection work as

"moonlighting" and as providing "supplementary income." On March 2, 1992, plaintiff completed two inspection reports related to salvage vehicle inspections he conducted in Macomb County.2 In these reports, plaintiff verified

that certain repairs had been made when in fact they had not, and declared that the vehicles were roadworthy when in fact they were not. plaintiff was Following a criminal investigation, in April 1994 with false

charged

certification, a felony.

MCL 257.903.

The city discharged

plaintiff on May 25, 1994, for violating department rules and regulations, including misconduct and lying about the inspections to a Michigan State Police investigator.

However, in June 1997, a jury in Macomb County acquitted plaintiff of the criminal charge of false certification. Subsequently, plaintiff requested payment of $205,000 from defendant for attorney fees incurred in defending the criminal charges. Plaintiff cited MCL 691.1408(2) as a By a resolution

basis for the city to reimburse such fees.

adopted at a meeting on September 8, 1997, the city council denied this request; it reiterated its position in a

resolution adopted on June 22, 1998.
2

The two resolutions

The city of Flushing is located in Genesee County. 3

explained

that

plaintiff's

request

for

fees

was

denied

because plaintiff's actions that had resulted in the fees were not for any "public purpose" of the city of Flushing and fell outside the scope of plaintiff's employment with the city. Plaintiff filed the instant complaint for declaratory relief and a motion for summary disposition, contending

that the city abused its discretion in denying his request for attorney fees. October 2001, the Following a two-day bench trial in trial court found that: (1) while was

performing

salvage

vehicle

inspections,

plaintiff

acting in the course of his duties as a Flushing police officer; (2) the city council did not "offer one credible or acceptable reason" for denying plaintiff's fee request; and (3) a reasonable attorney fee was $109,200. In a divided opinion, the Court of Appeals affirmed. Unpublished opinion per curiam, issued December 23, 2003 (Docket circuit No. 241188). had not The majority concluded in that the that

court

clearly

erred

finding

plaintiff acted within the scope of his employment when he inspected salvage vehicles, or in finding that the city abused its discretion when it denied plaintiff

reimbursement of his attorney fees.

The dissenting judge

would have reversed, concluding that the circuit court had clearly erred in finding that plaintiff's work as a salvage 4


vehicle inspector fell within the scope of his employment as a Flushing police officer. We granted oral argument on whether to grant

defendants' application for leave to appeal pursuant to MCR 7.302(G)(1), and directed the parties to include among the issues subject briefed to "whether the city council's Warda v decision is

judicial

review."

Flushing

City

Council, 471 Mich 907 (2004). II. This dispute Standard of Review us to determine whether the

requires

judiciary has the authority pursuant to the Constitution and MCL 691.1408(2) to review the city council's denial of plaintiff's request for reimbursement. We review these

issues de novo.

Lapeer Co Clerk v Lapeer Circuit Judges,

465 Mich 559, 566; 640 NW2d 567 (2002); Jeffrey v Rapid American Corp, 448 Mich 178, 184; 529 NW2d 644 (1995). III. The question presented Analysis here concerns the extent to

which the decision of a municipality to deny reimbursement for attorney fees under MCL 691.1408(2) has a long is subject that to a

judicial

review. may

Michigan indemnify

recognized officer for

municipality

police

costs,

including attorney fees, incurred because of the discharge of the officer's official duties. Mich 120, 122; 137 NW 549 Messmore v Kracht, 172 This principle is

(1912). 5


reflected in

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Michigan Law