MUDGE v MACOMB COUNTY
Docket No. 103985
Supreme Court of Michigan
Argued November 5, 1997. Decided July 1, 1998.
458 Mich 87 | 580 N.W.2d 846
In an opinion by Justice TAYLOR, joined by Chief Justice MALLETT, and Justices BRICKLEY, CAVANAGH, and KELLY, the Supreme Court held:
The existence of postdeprivation remedies does not necessarily bar the plaintiffs’ claim brought under
- Actions that violate a state statute, but do not also violate the federal constitution or a federal statute, are not actionable under
42 USC 1983 . The plaintiffs’ amended complaint alleged that defendants’ conduct violated the prisoner reimbursement act. However, the plaintiffs also pleaded42 USC 1983 as a separate count, alleging that the defendants’ actions violated their rights under the Fifth and Fourteenth Amendments of the federal constitution. If the defendants’ conduct violated the federal constitution, the fact that the conduct also violated the prisoner reimbursement act is of no moment and is not a ground allowing a court to find that plaintiffs have not alleged a cause of action under42 USC 1983 . - The federal remedy is supplementary to the state remedy; the state remedy need not first be sought and refused before the federal is invoked. Because the plaintiffs’ § 1983 claim is not necessarily barred by the existence of postdeprivation remedies, the fact that the plaintiffs could have asked the trial court or the Court of Appeals to vacate or overturn the ex parte orders when they finally learned of them is no bar to the § 1983 claim.
- The Court of Appeals erred in holding that the defendants could not plead a counterclaim under the prisoner reimbursement act simply because the then-existing six-month limitation period had expired. The expiration of a limitation period does not foreclose a recoupment defense as long as the plaintiff‘s action is timely. Because the plaintiffs’ § 1983 complaint was timely filed, the expiration of the limitation period for a county to bring a PRCA action, in and of itself, was not a bar to defendants seeking recoupment under the PRCA. However, while the plaintiffs’ allegations are sufficient to state a cause of action for a violation of their due process rights, further factual development is necessary to determine the nature and extent of the county policy. Until this further development occurs, an evaluation of plaintiffs’ claim that defendants’ have unclean hands is inappropriate.
Justice WEAVER concurred in parts I and II of the majority opinion.
Affirmed in part, reversed in part, and remanded.
Justice BOYLE, concurring in part and dissenting in part, stated that, to avoid confusion over assertion of recoupment in the contract setting as opposed to other contexts, a trial court ought to analyze the defendant‘s right to assert the defense in light of Bull v United States, 295 US 247 (1935). The rule is clear: If a counter-claim or defense arises out of the same transaction, occurrence, or
A plaintiff seeking to maintain a due process claim under § 1983 must allege a deprivation of a constitutionally protected interest in life, liberty, or property. In this case, the plaintiffs’ allegations are sufficient to state a cause of action for violation of their due process rights because the defendants seized their bond monies without a hearing of any kind and treated the bond monies as if they had been forfeited to the county and as if the ex parte orders attaching the bond monies already had been reduced to judgment without notice and a hearing. The due process violation alleged arises not from the use of an ex parte procedure, but from its misuse in contravention of the statutory procedures to effectuate a property deprivation without a hearing. However, there is confusion in the federal circuit courts of appeal regarding the principal case on which the majority relies, Zinermon v Burch, and its relationship to Parratt v Taylor, 451 US 527 (1981), and Hudson v Palmer, 468 US 517 (1984).
The difficulty confronting the courts in cases involving these types of claims is determining whether a given claim should be evaluated under the Parratt/Hudson doctrine, which teaches that where a government official engages in random and unauthorized activity that results in a deprivation of life, liberty, or property, due
Justice WEAVER concurred in part I of Justice BOYLE’S opinion.
210 Mich App 436; 534 NW2d 539 (1995) affirmed in part and reversed in part.
James M. Hacker and Lawrence A. Baumgartner (Jerald R. Lovell, of counsel), for plaintiffs.
O’Leary, O’Leary, Jacobs, Mattson, Perry & Mason, P.C. (by John P. Jacobs and Kenneth L. Herrington), for defendants.
Amici Curiae:
Johnson, Rosati, Galica, Labarge, Aseltyne & Field, P.C. (by Marcia L. Howe), for Michigan Defense Trial Association.
Garan, Lucow, Miller, Seward & Becker, P.C. (by Rosalind Rochkind), for Michigan Municipal League and Michigan Municipal Liability and Property Pool.
OPINION OF THE COURT
TAYLOR, J. Tanya Mudge and Jonathon Brown filed a lawsuit in the Macomb Circuit Court against Macomb County, Macomb County Sheriff’s Department, and William Hackel, Macomb County Sheriff. Plaintiffs alleged that the sheriff’s department had obtained ex parte orders from the judge assigned to their respective criminal cases, seizing their bond monies for reimbursement of the expenses of their incarceration in the Macomb County jail. Plaintiffs’ amended complaint alleged two causes of action: (1) breach of state law under the Prisoner Reimbursement to the County Act (PRCA),
Defendants filed a motion for summary disposition asserting several grounds. After the trial court denied the motion, defendants filed a counterclaim asserting, inter alia, a right to recoupment under the PRCA. Plaintiffs then filed a motion seeking summary disposition of defendants’ counterclaim, arguing such a counterclaim was barred given that the limitation period under the PRCA had expired. Defendants also filed a motion for rehearing or reconsideration regarding the denial of their motion for summary disposition. The trial court subsequently granted reconsideration and entered an order summarily dismissing plaintiffs’ amended complaint. The trial court never ruled on plaintiffs’ motion to summarily dismiss the counterclaim because the counterclaim became moot upon dismissal of plaintiffs’ complaint.
Plaintiffs appealed as of right, and the Court of Appeals reversed and remanded for further proceedings. 210 Mich App 436; 534 NW2d 539 (1995). Defendants filed an application for leave to appeal, which this Court initially denied, but ultimately granted in response to defendants’ motion for reconsideration. Our order granting defendants’ application for leave to appeal was limited to three questions: (1) whether a violation of the PRCA constituted a federal due process violation, (2) whether an action for damages was barred because the withholding of funds was pursuant to an order issued by the circuit court, and (3) whether defendants’ claim for reimbursement under the PRCA could be raised by counterclaim after the time for bringing an action under the statute had expired. 454 Mich 890 (1997).
The prefatory language in the order that the court signed stated that the Sixteenth Judicial Circuit was in possession of a sum of $10,000 and that it appeared that defendant “has/will” have incurred reimbursement charges as a consequence of the criminal case. The introductory language further indicated that the “Sheriff’s Reimbursement Program for the County of Macomb” was requesting that the $10,000 be deposited with the department in lieu of payment toward reimbursement fees provided for under the PRCA. The order entered in Brown’s case concluded as follows: “THEREFORE IT IS ORDERED, that the sum of $10,000 be released forthwith, and made payable to the County of Macomb for payment of reimbursement fee(s) upon conclusion of said matter(s), or until further order of the Court.” Brown was eventually sentenced to six months in jail on June 22, 1989. Defendants’ counterclaim indicates that Brown received a financial history form from the sheriff on or about June 27, 1989. Thus, the ex parte order seizing
The Court of Appeals held that defendants had acted ultra vires of the PRCA when they obtained ex parte orders from the circuit court. Id. at 440-441. It also vacated the ex parte orders, ordered that the bond monies be returned,7 and found that defendants’ recoupment counterclaim was barred. The Court of Appeals went on to hold that a municipality could be sued under
Defendants assert that the Court of Appeals erred in holding that a violation of the PRCA is actionable under § 1983, because violations of state statutes are not actionable under § 1983. Defendants are correct that actions violating a state statute, that do not also violate the federal constitution or a federal statute, are not actionable under
Plaintiffs’ amended complaint alleged that defendants’ conduct violated the PRCA. However, plaintiffs also pleaded
Defendants argue that plaintiffs may not assert a § 1983 claim because of the existence of postdeprivation state remedies. To determine whether this argument is correct, we turn to Zinermon. In Zinermon, the Court explained that there are three kinds of claims that may be brought against a state under the Due Process Clause of the Fourteenth Amendment. Id. at 125. The Court said that the first is a claim against a state for a violation of many of the rights under the Bill of Rights. The Court said that the second § 1983 claim is a bar against certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them. With regard to these two types of claims, the Zinermon Court stated: “the constitutional violation actionable under § 1983 is complete when the wrongful action is taken.” Id.
The Court further explained that the Due Process Clause also encompasses a third type of protection, a guarantee of fair procedure. Id. at 125. The Court said that the existence of state remedies is sometimes relevant to this third type of § 1983 claim. Unlike the first two types of claims, the constitutional violation under this third type is not complete when the deprivation occurs: it is not complete unless and until the state fails to provide due process. Under the third type, a statutory provision for a postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, may satisfy due process.
The Zinermon Court then clarified that the existence of a postdeprivation remedy is only relevant when the state is unable to provide predeprivation
In situations where the State feasiblely can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking. [Id. at 132.]10
Plaintiffs’ amended complaint specifically asserted that defendants’ acts and omissions had deprived them of procedural due process. Thus, we analyze plaintiffs’ claim under the third type of claim that may be asserted under
Pursuant to Zinermon, plaintiffs have alleged a § 1983 claim that is not automatically barred because of the existence of postdeprivation remedies. This is because: (1) the seizing of plaintiffs’ bond monies was not necessarily random or unpredictable (the fact that the ex parte orders were on preprinted forms and stated that “the Sheriff‘s Reimbursement Program to the County” was requesting the money contradicts any argument that defendants’ actions were random
The touchstone of procedural due process is the fundamental requirement that an individual be given the opportunity to be heard “in a meaningful manner.” [Citations omitted.] Many procedural due process claims are grounded on violations of state-created rights, as is the case here; rights that do not enjoy constitutional standing. However, the right to a hearing prior to the deprivation is of constitutional stature and does not depend upon the nature of the right violated. [Howard v Grinage, 82 F3d 1343, 1349 (CA 6, 1996).]
Similarly, the United States Supreme Court has stated:
Although “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause,” as Mr. Justice Jackson wrote for the Court in Mullane v Central Hanover Tr Co, 339 US 306 [70 S Ct 652; 94 L Ed 865] (1950), “there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Id. at 313. . . . In short, “within the limits of practicability,” id. at 318, a State
Whether defendants ultimately will be held liable for the alleged due process violations in this case will only become apparent once the nature and extent of the county policy is more fully defined. Resolution of these issues is only appropriate after further factual development at the trial court level. We do not join the concurrence‘s assertion, post, p 139, n 30, that only nominal damages will be available in this case. Such a pronouncement is premature, given the fact that the kinds of damages that may be available have not been briefed and are not at issue.
must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause. [Boddie v Connecticut, 401 US 371, 377-379; 91 S Ct 780; 28 L Ed 2d 113 (1971).]
Plaintiffs’ allegations are sufficient to state a cause of action for violation of their due process rights, under Zinermon, irrespective of the PRCA, because they have alleged that the county, or its agents, acting within the confines of the county‘s prisoner reimbursement policy, seized plaintiffs’ bond monies without providing for a hearing of any kind. If plaintiffs’ allegations are true, defendants treated the bond monies as if they had been forfeited to the county and as if already reduced to a judgment, without affording plaintiffs procedural due process through notice and a hearing and “took” any defenses13 plaintiffs may have had to a claim for reimbursement without a hearing, show cause or otherwise.14 Plaintiffs were entitled to a hearing where a court could consider their support obligations, if any. Thus, we reject defendants’ claim that plaintiffs’ § 1983 action is barred by plaintiffs’ failure to exhaust postdeprivation state remedies.15
Having determined that the existence of post-deprivation remedies does not bar plaintiffs’ § 1983 claim, we turn to the question whether the claim is barred because the withholding of funds occurred pursuant to orders issued by the circuit court. Defendants’ argument regarding this issue is that plaintiffs’ § 1983 claim should be barred because plaintiffs never asked the judge who entered the ex parte orders or the Court of Appeals to vacate or overturn the orders. Thus, defendants contend that plaintiffs were not free to file an independent § 1983 lawsuit in order to effectuate return of their bond monies, i.e., to collaterally attack the orders. Defendants assert that § 1983 should never be used as a state tort law, postjudgment, or appellate substitute. We reject defendants’ argument.
Zinermon, supra at 124, quoted with approval the following language from Monroe v Pape, 365 US 167, 183; 81 S Ct 473; 5 L Ed 2d 492 (1961):16
It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.
Given the fact that plaintiffs’ § 1983 claim is not necessarily barred by the existence of postdeprivation remedies, the fact that plaintiffs could have asked the
In granting leave to appeal regarding this particular issue, we anticipated that defendants might argue that they cannot be held responsible for any constitutional violation that may have occurred because the direct “cause” of any constitutional violation was the trial court‘s issuance of the ex parte orders and not the sheriff‘s department‘s request that the orders be entered. See, e.g., the discussion and cases cited in Mayor of the City of Lansing v Ku Klux Klan (After Remand), 222 Mich App 637, 643 ff; 564 NW2d 177 (1997).17 We deem the issue of causation inadequately briefed and do not reach it.18 As we explained in
It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.
III
Having determined that plaintiffs’ § 1983 claim is not necessarily barred by the existence of post-deprivation remedies and that the causation issue is inadequately briefed, we turn to the question whether defendants’ claim for the seldom invoked defense of recoupment under the PRCA may be raised by counter-claim after the time for bringing an action under the statute has expired.
Count VI of defendants’ counterclaim alleged that Mudge and Brown had incurred debts of $1,100 and $3,765 respectively under the PRCA and that all or a portion of plaintiffs’ damages, interest, attorney fees, and claims were negated, forfeited, reduced, diminished, mitigated, and legally voided on account of plaintiffs’ liabilities under the PRCA.
Plaintiffs filed a motion for summary disposition, arguing that the counterclaim should be dismissed because defendants had not filed the counterclaim within the then-applicable six-month limitation period. As previously indicated, the trial court never ruled on plaintiffs’ motion because the counterclaim became moot when the court granted reconsideration and granted defendants’ motion for summary disposi-
Defendants assert that the Court of Appeals erred arguing: “[V]irtually any otherwise valid, but time-barred, action, can always be resurrected, defensively speaking, by a counterclaim, if the legal effect of that counterclaim is to negate or to reduce the principal claim, as long as the defensive countercomplaint does not seek any more than the damages which are claimed by the plaintiff.” We agree that the Court of Appeals erred in simply stating that defendants could not seek recoupment by a counterclaim under the PRCA merely because the then-existing six-month limitation period had expired.
The defense of recoupment refers to a defendant‘s right, in the same action, “to cut down the plaintiff‘s demand, either because the plaintiff has not complied with some cross obligation of the contract on which he or she sues or because the plaintiff has violated some legal duty in the making or performance of that contract.” 20 Am Jur 2d, Counterclaim, Recoupment, etc., § 5, p 231. Recoupment is “a doctrine of an intrinsically defensive nature founded upon an equitable reason, inhering in the same transaction, why the plaintiff‘s claim in equity and good conscience should
As explained in Warner v Sullivan, 249 Mich 469, 471; 229 NW 484 (1930):
Recoupment is a creature of the common law. It presents to the court an equitable reason why the amount payable to the plaintiff should be reduced, and the plaintiff will not be permitted to insist upon the statute of limitations as a bar to such a defense when he is seeking to enforce payment of that which is due him under the contract out of which the defendant‘s claim for recoupment arises. [Emphasis added.]
Accord Bull v United States, 295 US 247, 261-262; 55 S Ct 695; 79 L Ed 1421 (1935) (the defense of recoupment is never barred by the statute of limitations as long as the main action itself is timely). See also anno: Claim barred by limitation as subject of setoff, counterclaim, recoupment, cross bill, or cross actions, 1 ALR2d 630, § 14, pp 666-667 (“Almost without exception the cases which deal with recoupments . . . run to the effect that if a defendant‘s claim is in fact a recoupment the general statutes of limitation do not defeat it; on the contrary it may be availed of defensively so long as plaintiff‘s cause of action exists“). Thus, the expiration of a limitation period does not foreclose a recoupment defense as long as the plaintiff‘s action is timely.19 Given that
The emphasized language in the statute refers to chapter 58 of the Revised Judicature Act. However, the time limitation within which a county has to file a claim under the PRCA,
We also take note of
Actions brought in the name of the state of Michigan, the people of the state of Michigan, or any political subdivision of the state . . . for the recovery of the cost of maintenance, care, and treatment of persons in hospitals, homes, schools, and other state institutions are not subject to the statute of limitations and may be brought at any time without limitation, the provisions of any statute notwithstanding.
If a county jail can be properly considered a “state institution,” see, e.g., Moreton v Secretary of State, 240 Mich 584, 591-592; 216 NW 450 (1927), and if
plaintiffs’ § 1983 complaint was timely filed, the expiration of the limitation period for a county to bring a PRCA action, in and of itself, was not a bar to defendants seeking recoupment under the PRCA. However, as previously indicated, defendants still have to show that plaintiffs did not comply with some cross obligation or legal duty under the PRCA in order to seek recoupment.20
As an alternative basis for upholding the Court of Appeals, plaintiffs argue that defendants’ recoupment counterclaim should be barred because defendants
MALLETT, C.J., and BRICKLEY, CAVANAGH, and KELLY, JJ., concurred with TAYLOR, J.
WEAVER, J. I concur only in parts I and II.
BOYLE, J. I concur in part and dissent in part with respect to the majority‘s treatment of the counterclaim issue.1 I also concur with the majority‘s treat-
In addition to these basic considerations of grammatical and statutory construction, common sense suggests that the Legislature intended the phrase “ex parte” to mean what it means in any other context: maintenance of the status quo pending a determination of a substantive issue. It makes no sense to conclude that the Legislature intended to defray the burden on taxpayers for the care of convicted defendants by authorizing its recovery and simultaneously precluding the county from preventing the dissolution of assets that otherwise might be available to satisfy a judgment. Since any knowledgeable or well-counseled potential obligor would dispose of any assets under this scenario, the majority‘s interpretation amounts to a conclusion that the Legislature created a remedy that would only be efficacious in the case of a wholly uninformed defendant represented by incompetent counsel. For example,
(1) Except as provided in subsection (3), in seeking to secure reimbursement under this act, the attorney general may use any remedy, interim order, or enforcement procedure allowed by law or court rule including an ex parte restraining order to restrain the prisoner or any other person or legal entity in possession or having custody of the estate of the prisoner from disposing of certain property pending a hearing on an order to show cause why the particular property should not be applied to reimburse the state as provided for under this act.
(2) To protect and maintain assets pending resolution of an action under this act, the court, upon request, may appoint a receiver.
The amount of bond money taken may be considered as an item of damages if a due process violation is found on remand.
Further, the validity of the Court of Appeals direction to return the bond money does not depend on whether the issue was adequately briefed or whether we granted leave regarding the question. These observations are non sequiturs, given that the majority affirms the Court of Appeals order returning the bond monies as “proper.” The parties may abandon an issue; they may not confer jurisdiction on a court to grant a remedy. Otherwise stated, the issue whether the Court of Appeals had the authority to grant this relief is an issue the parties’ approach cannot dictate. In point of fact, the defendant claimed that the orders could not be collaterally attacked, a correct conclusion, and one we would, in any event, reach. Even if the defendant‘s action is ultra vires of the PRCA, the order of the trial court transferring the monies posted for bond is voidable, not void.
I concur with the majority‘s treatment of the counterclaim issue, to the extent that it acknowledges the availability of the county‘s right to assert its counterclaim for recoupment of its cost of custodial care.4 However, the majority‘s discussion of recoupment might be misleading to the trial court. The majority quotes 20 Am Jur 2d, Counterclaim, Recoupment, etc., § 5, p 231, for the proposition that “recoupment refers to a defendant‘s right, in the same action, ‘to cut down the plaintiff‘s demand, either because the plaintiff has not complied with some cross obligation of the contract on which he or she sues or because the plaintiff has violated some legal duty in the making or performance of that contract.‘” Ante at 106. While such analysis would correctly apply to a cause of action asserted on a contract in which the defendant raised recoupment as a defense, this is not a cause of action in which recoupment is being asserted on the basis of a contract. However, the majority states, “[D]efendants still have to show that plaintiffs did not comply with some cross obligation or legal duty under the PRCA in order to seek recoupment,” id. at 108, thus substituting “the PRCA” for the “contract” in the case-law review in Am Jur.
the Court of Appeals did not directly address the issue of Brown‘s consent, the trial court did in its January 24, 1991, opinion and order, and defendants have briefed it and preserved it at all levels. However, given that our grant order was limited to the three issues stated, I agree that a determination limited to whether Brown may collaterally attack the order is appropriate.
[R]ecoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiff‘s action is grounded. Such a defense is never barred by the statute of limitations so long as the main action itself is timely. [Emphasis added.]
The rule is clear: If a counterclaim or defense arises out of the same transaction, occurrence, or claim as the plaintiff‘s claim, it is in the nature of recoupment, and the statute of limitations is inapplicable as long as the plaintiff‘s claim is timely and the defendant‘s right to recoupment existed when the plaintiff‘s claim arose. Recoupment beyond the statute of limitations will serve only to diminish or negate the defendant‘s liability in damages to the plaintiff. Because this case is not one in which the defendant asserts recoupment on a contract, the majority‘s reference to the rule regarding a legal duty or cross obligation under a contract is misplaced.
Should the trial court resolve the issue with respect to the county‘s conduct in such a way as to conclude that the § 1983 claim exists wholly outside the Zinermon dispute because the county sanctioned the alleged due process rationale by official act or cus-
As the record now stands, the county hired an individual to implement a prison reimbursement program in May of 1985 on the recommendation of the sheriff and the county “Prisoner Reimbursement Subcommittee.” However, nothing in the record indicates that the county board of commissioners endorsed any specific policy regarding how implementation of the PRCA was to occur officially or otherwise.
Instead, the record appears to indicate that the county attempted, through the sheriff‘s department and the individual hired to implement a reimbursement program, to utilize a procedure that would impose the legal obligations of the act, while providing inmates an opportunity to avoid the time-consuming and costly burdens of civil litigation. In its answers to interrogatories, dated April 3, 1991, the county supplied a document entitled “Macomb County Jail Reimbursement Program Update Sum-
Under this Act, an inmate who willfully refuses to cooperate in the counties [sic] attempts to seek reimbursement may be denied a 1/4 reduction of his or her sentence (under [
MCL 801.257 ; MSA 28.1747(7)]). Inmates [sic] cooperation in this matter is highly stressed, and is enforced by the Sheriff‘s discretion in revoking “good time” for refusal to cooperate. Refusing to make payments on the other hand, may result in civil action filed against him or her for up to six months after the sentence was served. The county could also seek a restraining order preventing the inmate from disposing [of] property pending a hearing.
As I read the procedures outlined in the report, the county employee, under the PRCA, designed a program whereby the county: (1) informed the prisoners of their obligation to pay reimbursement and that the county would bill the prisoners accordingly pursuant to subsection 3(1) (“The county may seek reimbursement for any expenses incurred by the county . . . [including $30] per day for the expenses of maintaining that prisoner or the actual per diem cost . . . whichever is less . . . , [the cost to] investigate the financial status of the person[, and] [a]ny other expenses incurred by the county in order to collect payments under this act“); (2) developed a financial history form (subsection 3[2], by which it sought to determine the prisoners’ ability to pay); (3) informed the prisoners of their duty to cooperate in the collection process (subsection 5[1]) or be subject to penal-
The summary update reflects the county‘s apparent good-faith attempt to comply with the PRCA by instituting a collection process enforced by denial of good time and the civil action as set out in the act. However, the record does not reflect how the retention of bond monies by ex parte order without a mechanism for a hearing became part of the process.6
That the bond monies were retained “in lieu of” a statutory debt does not conclusively establish that the county intentionally sought to deny the prisoners their rights under the constitution or the PRCA, or otherwise committed inequitable conduct sufficient to invoke the doctrine of unclean hands. It is equally likely that the order was occasioned by a misinterpretation of the requirements of the act, or that the orders were inartfully drafted without expressly providing for a hearing. This does not change the fact that the plaintiffs here have sufficiently alleged a denial of due process. However, regardless of whether this failure was attributable to the county‘s evil intent, or whether the plaintiffs’ delay in seeking
Should the trial court determine that the clean hands defense is available with respect to the counterclaim, common sense dictates that the trial court should also consider the nature of the plaintiffs’ conduct. The plaintiffs knew they had posted bond, but there is no indication that plaintiff Mudge ever sought return of her bond money by an appropriate motion. Nor is there any indication why she did not. Likewise, there is no explanation of how she discovered the bond would not be returned. Plaintiff Mudge did not move for return of bond, or seek to set aside the order in the district court, or seek an appeal when she became aware of the order. Instead, as the record now stands, it is equally possible that, with knowledge of the order, plaintiff Mudge waited until the six-month period had passed before filing a § 1983 claim. Plaintiff Brown signed an order that appears to have settled his case. Plaintiff Mudge apparently sat on her rights, and there is no indication in the record that she ever cooperated in the county‘s reimbursement collection process. Thus, the trial court might appropriately determine that the equities are in balance.
II
As noted by Judge Easterbrook, the confusion created by Zinermon v Burch, supra, and its relationship to Parratt v Taylor, 451 US 527; 101 S Ct 1908; 68 L Ed 2d 420 (1981), and Hudson v Palmer, 468 US 517; 104 S Ct 3194; 82 L Ed 2d 393 (1984), has resulted in “a line of precedent . . . resembling the path of a drunken sailor . . . .” Easter House v Felder, 910 F2d 1387, 1409 (CA 7, 1990) (second reh en
A
A plaintiff seeking to maintain a due process claim under § 1983 must allege a deprivation of “a constitutionally protected interest in ‘life, liberty, or property.‘” Williams v Langston, unpublished opinion of the United States Court of Appeals for the Seventh Circuit, issued March 4, 1997 (Docket No. 95-3314), 108 F3d 1380; 1997 WL 113726, *1 (CA 7, 1997).8 With respect to plaintiff Mudge, I agree with the majority that “[p]laintiffs’ allegations are sufficient to state a cause of action for violation of their due process rights . . . because [defendants] seized plaintiffs’ bond monies without . . . a hearing of any kind . . .
The difficulty confronting the courts in cases involving these types of claims is determining whether a given claim should be evaluated under the Parratt/Hudson doctrine, which teaches that where a government official engages in random and unauthorized activity that results in a deprivation of life, liberty, or property, due process is satisfied by adequate
The issue turns on Zinermon‘s reference to the third prong of its apparent test that in order to trigger Parratt/Hudson, the defendants’ conduct must be “‘unauthorized’ in the sense the term is used in Parratt and Hudson.” Zinermon at 138. The courts’ difficulty lies in determining when the conduct of the official actor is sufficiently authorized that the plaintiff may avoid the Parratt/Hudson doctrine.11
If Parratt/Hudson is interpreted narrowly, a plaintiff may successfully state a § 1983 cause of action where an official actor‘s allegedly unconstitutional conduct is wholly outside the discretion delegated to
If a court selects the narrow interpretation of Parratt under Zinermon, a far greater number of plaintiffs will succeed in alleging a § 1983 cause of action than under the broad interpretation. The latter view would leave plaintiffs alleging a procedural deprivation in contravention of state laws designed, at least in part, to protect against the same to state-law remedies.12 Not having received briefing from the parties and amici curiae in addressing Zinermon, the majority opts for the narrow view with surprisingly little analysis.13
B
The several opinions issued by the Seventh Circuit in Easter House provide the parameters of the running dispute over the meaning of Zinermon.14 The
Section 1983 must be preserved to remedy only those deprivations which actually occur without adequate due process of law, such as those which result from a state‘s conscious decision to ignore the protections guaranteed by the Constitution. It should not be employed to remedy deprivations which occur at the hands of a state employee who is acting in direct contravention of the state‘s established policies and procedures which have been designed to guarantee the very protections which the employee now has chosen to ignore. Such a limitation upon § 1983 maintains the delicate balance between the state and federal judicial systems, leaving the former to remedy individual torts and the latter to address property deprivations which occur without adequate due process protection. [Easter House III at 1404-1405.]15
Significantly, the majority held:
Easter House II, changed his vote on remand for reconsideration in light of Zinermon and joined Judge Cudahy‘s dissent in Easter House III.
Where adequate postdeprivation remedies exist in a state to redress a property deprivation which has resulted from an employee‘s random and unauthorized deviation from established state policy and procedure, a party cannot maintain a § 1983 action because he has received all of the process which was due. [Id. at 1408.]
It is the phrase “random and unauthorized deviation from established state policy and procedure” that makes the Seventh Circuit‘s holding significant. Parratt and Hudson did not involve procedural deviations. The acts alleged were negligent and intentional conduct by state officials that resulted in due process deprivations. In Zinermon, unlike Parratt and Hudson, the challenged conduct involved either a deviation from procedural safeguards or an unconstitutionally broad delegation of authority. Zinermon at 135-136. Thus, Judge Cudahy, writing for the dissenters in Easter House III concluded that the majority missed the point of Zinermon. Id. at 1410.
Judge Cudahy observed that, under Logan v Zimmerman Brush Co, 455 US 422; 102 S Ct 1148; 71 L Ed 2d 265 (1982), ”Parratt does not extend to cases in which an ‘established state procedure’ destroys someone‘s property right without according that person proper predeprivation process.” Easter House III at 1410 (Cudahy, J., dissenting). In other words, with regard to established state procedures, Logan appeared to take the narrow view of the scope of the Parratt/Hudson doctrine. Judge Cudahy further noted that the Supreme Court “granted certiorari in Zinermon precisely in order to resolve the circuit conflict over Parratt‘s proper scope,” id. at 1411, that is, what constitutes “an established state procedure.” Our decision today is consistent with Judge Cudahy‘s
Judge Cudahy‘s first dissent in Easter House II aptly explained the position we adopt:
Stripped of their analytical intricacies, Parratt and Hudson teach a fairly straightforward lesson (or so I had thought before today‘s decision): while the procedural aspect of the due process clause generally requires that the state provide a hearing before it takes away someone‘s property, it is physically impossible to grant a predeprivation hearing where the taking is a “fluke,” unplanned and uncontrollable. Such an accident occurs, for example, where a state employee who has no business meddling with anyone‘s property rights nevertheless deprives someone of property. (Note that in both Parratt and Hudson the employee who took the plaintiff‘s property was acting completely beyond the pale of his or her assigned responsibilities—in Parratt, by signing for (and thereby taking custody of) the plaintiff‘s package, in direct violation of prison rules; in Hudson, by destroying innocuous items of personal property during a search for contraband.) In these unpredictable and unpreventable situations (and in emergencies, where a predeprivation hearing is unwise) all that a state can realistically offer is a post-deprivation remedy; all that a federal court presented with a due process claim can do is assure itself that the state remedy is “plain, speedy and efficient.” [Id. at 1481-1482.]
for purposes of determining whether the “state” has violated an individual‘s constitutional right to due process, the “state” generally includes any person to whom is delegated the responsibility of giving predeprivation process. . . . (“The State delegated to [the hospital staff] the . . . authority to effect the very deprivation complained of here . . . and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement.“) [Easter House III at 1411, quoting Zinermon at 138.]
Likewise, in our case, the state delegated to the county defendant the authority, through the sheriff, to effect the deprivation of which plaintiffs complain, and the duty to comply with the legislatively promulgated procedural safeguards or otherwise initiate constitutionally sufficient procedures. The alleged abuse of the ex parte mechanism in the PRCA amounts to an alleged failure to abide by the statutory safeguards or otherwise provide notice and a predeprivation hear-
The Fifth Circuit‘s panel decision in Caine v Hardy, 905 F2d 858 (CA 5, 1990) (Caine I),19 is also
Judge Williams explained:
The lesson of Zinermon is that the Parratt/Hudson doctrine is restricted to cases where it truly is impossible for the state to provide predeprivation procedural due process before a person unpredictably is deprived of his liberty or property through the unauthorized conduct of a state actor. In Zinermon, however, the deprivation was not unpredictable. It was not impossible, therefore, for the state to provide predeprivation procedural due process. Since the state actor who caused the deprivation was authorized to take the action that caused the deprivation, the Parratt/Hudson doctrine did not apply. It follows that when the Parratt/Hudson doctrine does not apply, a § 1983 plaintiff can state a claim for the state‘s failure to provide predeprivation procedural due process. [Caine I at 862.]21
Zinermon analyzed the state officials’ conduct in admitting Burch to the mental hospital and concluded that Parratt/Hudson did not vindicate the adequacy of a post-deprivation remedy because the voluntary commitment procedure presented both a high risk of erroneous deprivation of a mentally ill person‘s liberty, and the substantial likelihood that minimal further procedural safeguards could readily have avoided the deprivation. Zinermon requires a hard look at a Parratt/Hudson claim to determine whether the state official‘s conduct, under all the circumstances of the deprivation, could have been adequately foreseen and addressed by procedural safeguards. If it could, then the case requires classic Mathews [v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976)] balancing and has stated a claim for relief. Zinermon did not, however, explicitly or implicitly disavow the Parratt/Hudson doctrine, nor did it portend that any alleged violation of procedural due process undertaken within the scope of an established and articulated state regulatory framework automatically falls outside the purview of Parratt/Hudson. Zinermon employs and hence requires case-by-case analysis of the deprivation at issue. See Zinermon, O‘Connor, dissenting [494 US 139]. [Caine I at 865 (Jones, J., dissenting).]
There is no deficit in the hospital‘s procedural regulations. As previously stated, the doctor challenges solely the bias of his peers and their violation of those regulations. These allegations naturally disprove the majority‘s third Zinermon based conclusion that the “state actors’ actions in the present case were not unauthorized.” . . . Of course they were! Investigatory and judicial bias in implementing the regulations is always unauthorized, if they are not alleged to flow from the regulations themselves. Holloway v Walker, 784 F2d 1287, 1292-1293 (CA 5, 1986). Nearly every paragraph of Dr. Caine‘s 50-page complaint concludes with the assertion that the hospital actors’ conduct violated a particular provision of the regulations. The majority have already assumed away the only reason authorized by the regulations for immediate suspension of hospital privileges, i.e., to protect the safety of patients. Hence it follows that any other action which brought about that result had to be unauthorized by the regulations. In Zinermon, by contrast, the voluntary admission of the patient may have been an abuse of judgment by the staff authorized to admit him, but their exercise of judgment was specifically condoned by the regulations. “Florida‘s [statutory scheme] . . . gives state officials broad power and little guidance in admitting mental patients.” Zinermon [494 US 135]. Such is emphatically not the case under the conditions assumed by the majority. [Caine I at 866-867 (Jones, J., dissenting).]
C
The Juarez article reviews the scope of the dispute in the circuits as it existed in 1993. “Contrary to Zinermon‘s description of Parratt as the ‘unusual’ case, the courts of appeals in both published and unpublished decisions clearly favored the Legalist Model . . . us[ing] the Legalist Model in thirty-four appellate decisions, while applying the Governmental Model in only eight.” Juarez, supra at 31. Similarly, as of 1993, the district courts favored the Legalist Model 23 to 18. Under Easter House, the Seventh Circuit is clearly a Legalist circuit. See Easter House III, supra at 1404-1405. The majority apparently puts us in the
The fundamental problem with Zinermon is that it reaches the more “governmental” result while employing, in part, the more “legalist” inquiry into the
Observing a clear disagreement in the federal circuit courts of appeal over the implications of Zinermon, this Court has decided to place itself on one side of the dispute, apparently the minority side. It is hoped that in time, clearer guidance will emerge. Pending such clarification, I concur with the major-
WEAVER, J. I concur only in part I.
Notes
The majority states that “[t]he PRCA only authorizes seeking reimbursement from inmates who have been convicted of a felony.” Ante at 94, n 3, citing
If necessary to protect the county‘s right to obtain reimbursement under this act against the disposition of known property, the county, in accordance with rules of the supreme court of this state, may seek issuance of an ex parte restraining order to restrain the defendant from disposing of the property pending a hearing on an order to show cause why the particular property should not be applied to reimbursement of the county for the maintenance and support of the defendant as a prisoner. [Emphasis added.]
This provision does not require that the county postpone seeking the ex parte order only until after conviction, but plainly contemplates issuance of the order before conviction if necessary. To the extent the majority implies that the ex parte procedure must be postponed until after conviction, I disagree.
The majority states that “[t]he statutory language says the county may file an action if it wishes to obtain a judgment against an inmate that has been convicted of a felony.” Ante at 94, n 3. This is exactly the point: Use of the word “may” does not suggest this is the exclusive remedy to recover costs, as opposed to obtaining a judgment. Likewise, use of the word “may” in the provision providing for ex parte action does not suggest that ex parte action otherwise authorized by MCR 3.310 is superseded and unavailable to the county as creditor and potential judgment obligee.
The majority states, ante at 94, n 5, with respect to the appropriateness of the Court of Appeals remedy of ordering the return of plaintiff Mudge‘s bond monies, that the Court of Appeals did not err in ordering such return absent the county‘s compliance with the PRCA. Thus, the majority, while determining in part II of its opinion, that the issue of the validity of the orders, i.e., whether the orders may be collaterally attacked, was inadequately briefed, inconsistently upholds return of the bond money to Mudge. The majority thus sustains a collateral attack by Mudge, asserted on the ground that the order violated the PRCA. Assuming, arguendo, that the sheriff acted ultra vires of the PRCA, the trial court‘s order was not void. The trial court had in rem jurisdiction over the bond money and subject matter jurisdiction over the criminal case in which the bond was posted. Thus, the ex parte order of the trial court is valid until vacated or set aside by the trial court or reversed on direct appeal. Plaintiff Mudge never sought such reversal. This Court has not found a due process violation, but only that such a violation was sufficiently alleged.
I also concur with the majority‘s decision regarding plaintiff Brown‘s § 1983 action to the extent that it orders the trial court to determine whether Brown may collaterally attack the order he signed. We did not grant leave on this question and, therefore, should express no opinion regarding whether this is a question of fact or a question of law. On remand, that determination is a threshold issue for resolution by the trial court. Stefanac v Cranbrook Educational Community (After Remand), 435 Mich 155; 458 NW2d 56 (1990); MCR 2.612.
Brown was imprisoned for 131 days, entitling the county to $3,930 in reimbursement under the Prisoner Reimbursement to the County Act,
Of course, if Brown settled his claim, the county need not assert a counterclaim. The relevant order appears to indicate Brown consented to satisfaction of his obligation under the PRCA for $3,765.
As for plaintiff Mudge, we find no error in the Court of Appeals ordering the return of her bond monies, given that her monies, were not taken in compliance with the PRCA. Contrary to the assertion of the concurrence, post, p 111, n 2, we have not determined that the validity of the “orders” was inadequately briefed. Rather, we have only declined to determine the significance of the order returning bond monies that Brown signed because the Court of Appeals did not reach the question and because we did not grant leave regarding the question. Further, Mudge, unlike Brown, did not sign any order returning her bond money. The concurrence also states that the ex parte order relating to Mudge was valid unless reversed on direct appeal, id., but ignores the fact that the Court of Appeals did vacate the order. The concurrence is also in error when it states, id., that Mudge never sought to have the ex parte order reversed. Count I of Mudge‘s complaint sought this exact relief. We find the Court of Appeals invocation of
Recoupment is not necessarily limited to contract law. See 20 Am Jur 2d, Counterclaim, Recoupment, etc., § 33, p 257. Its common applicability to tax law is but one example of its use outside the context of contract law.
Further support for the fact that the county was attempting to proceed in good faith under the statute is found in the fact that the ex parte orders were obtained in the venue mandated by the statute.
Similarly, Judge Edith Jones observed, ”Zinermon undoubtedly complicated an already overloaded procedural due process jurisprudence.” Caine v Hardy, 905 F2d 858, 863 (CA 5, 1990) (Jones, J., dissenting).
“An actionable section 1983 claim must allege facts sufficient to support a determination (i) that the conduct complained of has been committed under color of state law, and (ii) that [the alleged] conduct worked a denial of rights secured by the Constitution or laws of the United States.” Rumford Pharmacy v East Providence, 970 F2d 996, 998 (CA 1, 1992).
It should be clear that the only recognizable allegation of a due process violation here is the failure to provide for notice and a show cause hearing in the ex parte orders before proceeding to attach and distribute the bond money into the general fund. In all other respects, I read the record as indicating the county proceeded properly in developing a collection process under the PRCA. Future ex parte orders restraining disposition of assets should only restrain disposition pending notice and a hearing to show cause why the assets should not be applied to reimbursement under the act, at which the court may order proper disposition.
This Court has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause.
Treatment of the plaintiffs’ claims as alleged violations of substantive due process would be inappropriate where defendants’ conduct cannot be characterized as “‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.‘” Sierra Lake Reserve v Rocklin, 938 F2d 951, 957-958 (CA 9, 1991), quoting Village of Euclid, Ohio v Ambler Realty Co, 272 US 365, 395; 47 S Ct 114; 71 L Ed 303 (1926).
This issue is directly related to the issue whether the plaintiffs have a § 1983 cause of action against the county and to how the case will proceed on remand. As correctly noted by the Court of Appeals, an issue “yet to be determined regarding plaintiffs’ § 1983 claim [is] the existence of an official municipal policy or custom.” 210 Mich App 436, 448; 534 NW2d 539 (1995). While we recognize that plaintiff has sufficiently alleged a § 1983 cause of action, discovery should allow the trial court to determine whether and to what extent the procedure for obtaining ex parte orders, drafted in such a way as to deprive plaintiffs of notice and a hearing, was officially authorized by the county‘s deliberate or customary acts. If the conduct was so authorized, under Monell, supra, the officially sanctioned act allegedly depriving plaintiffs of their rights under the Due Process Clause is actionable under § 1983 without reference to Parratt/Hudson. However, should discovery reveal that the county did not deliberately or by custom authorize the drafting of the ex parte orders so as to allow the orders to be treated as judgments authorizing transfer of the bond monies into the general fund, the Court‘s position on the dispute over the meaning of Parratt/Hudson after Zinermon will determine whether plaintiffs’ action may go forward. Because we have adopted the narrow view of Parratt/Hudson, as explained below, plaintiffs’ cause of action will go forward even if the county did not officially sanction the ex parte bond retention procedure, but the county may not be an actionable defendant given the requirements of Monell.
Although defendants acknowledge that the county‘s prisoner reimbursement program was the “dual creation” of the Macomb Circuit Court and the Macomb County Sheriff‘s Department, we are unable to determine from the limited record available whether the program, as implemented, was authorized by legislative act of the county‘s board of commissioners. [210 Mich App 447.]
An underlying and inadequately addressed issue in the case before us is whether the conduct of the official actor is attributable to the county defendant. See n 18.
Neither the parties nor the amici curiae in this case briefed or cited Zinermon or its progeny in the federal circuit courts of appeal. Although I join the majority, my preference would be to seek supplemental briefing.
“At the heart of the dispute in Easter House is the question of whether procedural due process violations require that the challenged action be taken not only under color of state law, but also, pursuant to state law.” Blum, Local government liability under section 1983, 575 PLI/Lit 53, 273 (1997). Notably, Judge Posner, who joined the majority in
If we were to apply this reasoning, we would find in defendants’ favor here, because the circumstances giving rise to this case did not “result from a state‘s conscious decision to ignore the protections guaranteed by the Constitution.” Rather, the deprivations appear to have arisen as a result of the alleged acts of officials “in direct contravention of the state‘s established policies and procedures . . . designed to guarantee the very protections . . . ignore[d],” i.e., a predeprivation show cause hearing under
In this case, it is as yet unclear whether there was an established state procedure or whether the actors responsible for the alleged deprivation were acting outside their authority in deviating procedurally from the show cause hearing requirement under the PRCA while failing to provide other constitutionally sufficient process. See, e.g., MCR 3.310.
In Zinermon, a liberty interest was at stake, while here, as in the Easter House cases, a property interest is at stake. Judge Easterbrook acknowledged that part of the difficulty here may flow from the case law‘s distinction between liberty and property, and that the majority‘s approach there, as well as in Parratt, Hudson, and Zinermon, might have turned partly on that distinction. See Easter House III at 1408-1410 (Easterbrook, J., concurring). While some cases have endorsed this distinction, Zinermon, supra at 116, n 2, and 131, n 16, the Supreme Court has not done so. Id. at 132 (“We . . . do not find support in precedent for a categorical distinction between a deprivation of liberty and one of property“).
See also
To the extent of the amount established as plaintiff‘s claim the periods of limitations prescribed in this chapter do not bar a claim made by way of counterclaim unless the counterclaim was barred at the time the plaintiff‘s claim accrued. [Emphasis added.]
The Fifth Circuit, in an opinion by Judge Edith Jones, reversed on rehearing en banc, Caine v Hardy, 943 F2d 1406 (CA 5, 1991) (Caine II), ultimately adopting a similar approach to that which was adopted in the Seventh Circuit in the Easter House cases. Although we adopt an approach rejected by the Seventh and Fifth Circuits, in cases in which the Supreme Court denied certiorari, my concurrence with the majority‘s adoption of the apparent minority approach stems from my agreement with the authorities explained and the continued unsettled nature of this area of the law in light of the Supreme Court‘s failure to provide clearer guidance. Judge Easterbrook joined the majority in Easter House III because he believed, “despite the force of Judge Cudahy‘s arguments, Judge Kanne offers the best estimate of the course a majority of the [Supreme] Court will take . . . .” Easter House III at 1409. Perhaps, in light of the Supreme Court‘s denials of certiorari in Easter House III and Caine II, we should be inclined to follow the Seventh Circuit majority and find for defendant here. However, I find Judge Cudahy‘s position more persuasive, as does, I believe, Justice TAYLOR. Moreover, little guidance may be gleaned from the Court‘s denials of certiorari in Easter House III and Caine II considering the Court‘s apparently inconsistent remand and subsequent denial in Fields v Durham, 909 F2d 94, 97 (CA 4, 1990) (discussed below).Thus, we apply the general recoupment rule from Am Jur 2d typically applied in contract cases to this case. The concurrence would apply the same transaction rule from Bull, supra, and would allow recoupment even if plaintiffs did not violate some cross obligation or legal duty under the PRCA. We find it appropriate to apply the Am Jur rule because the PRCA is akin to a contract in that it placed certain duties and obligations on the parties, not existing at common law and thus not reimbursable before enactment of the PRCA, relating to possible reimbursement for certain costs of incarceration.
The Zinermon Court stated:Burch‘s suit is neither an action challenging the facial adequacy of a State‘s statutory procedures, nor an action based only on state officials’ random and unauthorized violation of state laws. . . . [Burch] seeks to hold state officials accountable for their abuse of their broadly delegated, uncircumscribed power to effect the deprivation at issue. [Id. at 136.]
Perhaps, on this basis, we might distinguish our case from Zinermon and find for the defendants, given that the officials here were not abusing “broadly delegated, uncircumscribed power to effect the deprivation at issue.” Indeed, treating the ex parte orders as if they were judgments was in direct contravention of the statutory safeguards, namely, the hearing procedure, circumscribing the authority to effect a deprivation of bond monies to which plaintiffs were entitled at the conclusion of their sentences. The approach taken in Easter House III would likely result in the conclusion that such unauthorized conduct does not give rise to a
Stachnik v Winkel, 394 Mich 375, 382, 386; 230 NW2d 529 (1975); Falk v State Bar of Michigan, 411 Mich 63, 113, n 27; 305 NW2d 201 (1981); Seguin v Madison, 328 Mich 600, 607; 44 NW2d 150 (1950); Rust v Conrad, 47 Mich 449, 454; 11 NW 265 (1882).
Caine I referenced Easter House II and the Supreme Court‘s remand for reconsideration in light of Zinermon, as well as the Supreme Court‘s similar remand in Fields v Durham, 856 F2d 655 (CA 4, 1988), in which the Fourth Circuit applied the Parratt doctrine to a state college administrator‘s discharge. In Fields, the administrator plaintiff alleged the state‘s dismissal procedures were misapplied. On remand, the Fourth Circuit, consistent with our decision here, characterized the Parratt doctrine as applying only to a “narrow class of cases” in which “‘postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide.‘” Fields v Durham, n 19 supra at 97. In deciding the case in the defendant‘s favor, the court concluded that “[p]redeprivation process was not only prescribed . . . , it was actually provided.” Id. Notably, however, the court observed that under Zinermon “the provision of some predeprivation process remains the preferred constitutional course,” id., and formulated a two-part analysis under Zinermon:Zinermon . . . requires that we first ask whether the risk of an erroneous deprivation was foreseeable, and next “whether predeprivation safeguards would have any value in guarding against the kind of deprivation allegedly suffered.”
Thus we do not join in the concurrence‘s claim, post, p 117, that the ex parte orders can be viewed as a misinterpretation of the requirements of the act or were inartfully drafted. All parties including these defendants are presumed to know the law. Grand Rapids Independent Publishing Co v Grand Rapids, 335 Mich 620, 630; 56 NW2d 403 (1953). Omitting the required hearing cannot fairly be characterized as inartful drafting. We also reject the concurrence‘s claim that the county‘s attempt to operate in good faith is demonstrated by the fact that the ex parte orders were obtained in the venue mandated by the statute, i.e., Macomb County. Post, p 117, n 6. The more likely explanation is traceable to the fact that, after all, the money was being held in the Macomb Circuit Court. This is something Willie Sutton (a notorious bank robber from an earlier era who when asked why he robbed banks explained “that is where the money is“) understood about venue and probably defendants did also.
Judge Jones’ approach would logically lead to the conclusion, contrary to Monell, Monroe v Pape, 365 US 167; 81 S Ct 473; 5 L Ed 2d 492 (1961), and Zinermon that abuses of state authority are not withinSee also Seals v Edwards, unpublished opinion per curiam of the United States Court of Appeals for the Sixth Circuit, issued January 13, 1993 (Docket No. 91-2215), 985 F2d 561; 1993 WL 5932, *2 (CA 6, 1993) (reasoning that it is illogical to equate the concept of wrongdoing with random and unauthorized conduct in the presence of an established state procedure, thereby requiring “every plaintiff . . . to plead himself out of court“).It is immaterial whether the due process violation Burch alleges is best described as arising from petitioners’ failure to comply with state procedures . . . or from the absence of a specific requirement that petitioners determine whether a patient is competent . . . . [Id. at 135-136.]
We disagree with the concurrence‘s assertion that the trial court should consider the nature of the plaintiffs’ conduct in evaluating the unclean hands issue.
The conclusion of the majority is fortified by the Supreme Court‘s recent reference to Zinermon in Gilbert v Homar, 520 US 924, 930; 117 S Ct 1807; 138 L Ed 2d 120 (1997):“[The clean hands maxim] is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.” [Stachnik, n 21 supra, p 382 (emphasis added).]
On the other hand, Justice Kennedy has stated more specifically:This Court has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause.
[T]he price of our ambivalence over the outer limits of Parratt has been its dilution and, in some respects, its transformation into a mere pleading exercise. The Parratt rule has been avoided by attaching a substantive rather than procedural label to due process claims (a distinction that if accepted in this context could render Parratt a dead letter) and by treating claims based on the Due Process Clause as claims based on some other constitutional provision. . . . It has been avoided at the other end of the spectrum by construing complaints alleging a substantive injury as attacks on the adequacy of state procedures. See Zinermon . . . ; Easter House . . . . These evasions are unjustified given the clarity of the Parratt rule: In the ordinary case where an injury has been caused not by a state law, policy, or procedure, but by a random and unauthorized act that can be remedied by state law, there is no basis for intervention under
§ 1983 , at least in a suit based on “the Due Process Clause of the Fourteenth Amendment simpliciter.” [Albright v Oliver, 510 US 266, 285; 114 S Ct 807; 127 L Ed 2d 114 (1994) (Kennedy, J., concurring).]
[T]he Legalist model . . . speaks to and imposes duties upon government officials when they act as lawmakers. The question . . . is whether the state‘s laws . . . and allocations of law enforcement resources are constitutionally adequate . . . to protect individuals’ constitutionally protected interests. If they are not adequate, . . . the lawmakers are considered to have contributed to the infringement and have themselves violated the plaintiff‘s constitutional rights.
If the laws are constitutionally adequate, however, . . . under the Legalist model, the Constitution has not been violated even if government officials injure individuals.
*
Under [the Governmental] model, the [Due Process Clause] speaks not only to government officials qua lawmakers, but also to the much broader class of all government officials and agents. The question . . . is whether officials of any sort have infringed the plaintiff‘s constitutionally protected interests, regardless of whether the lawmakers had forbidden and attempted to prevent the infringement. . . . The federal cause of action is available, even in the presence of constitutionally adequate state laws and . . . remedies . . . because the government officials have violated the constitutional command despite the lawmaking officials’ efforts to prevent that violation.
As observed above, the difference between a legalist approach and a governmental approach may be irrelevant as to the county‘s liability if the plaintiffs can establish that the sheriff acted on behalf of and pursuant to an officially sanctioned procedure of the county. It is when the actor‘s conduct is contrary to the established procedure or where the extent of discretion delegated is unclear that the confusion in the case law becomes relevant.
a deprivation of procedural due process is actionable under
§ 1983 without regard to whether the same deprivation would have taken place even in the presence of proper procedural safeguards. . . . [H]owever, . . . in cases where the deprivation would have occurred anyway, and the lack of due process did not itself cause any injury (such as emotional distress), the plaintiff may recover only nominal damages. [Id. at 125-126, n 11.]
Section 1983 should stand as a deterrent to the misuse of the judicial process to obtain monies owed under the PRCA. Assuming there is an equitable element to the availability of the recoupment defense, a county‘s failure to provide due process in seeking reimbursement, in light of the fact that counties have notice of our decision here, would likely be sufficient to preclude assertion of an equitable defense. Moreover, continued failure to provide due process in seeking reimbursement from uncooperative individuals may provide grounds for an award of punitive damages under federal law.
I also note that the statute of limitations applicable to