PORTER v. CITY OF ROYAL OAK

GRIFFIN, P.J.

Plaintiff appeals as of right an order of the circuit court granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.

I

On March 30, 1990, plaintiff, Mark Porter, was a sergeant of the Royal Oak Police Department in charge of the midnight shift. At the beginning of this shift, plaintiff was briefed regarding an ongoing situation at the residence of Jerry Heaps. Plaintiff was informed that Mrs. Heaps had filed a criminal sexual conduct complaint against her husband the previous day and that Mr. Heaps had contacted relatives about his intention of committing suicide. Jerry Heaps, who was alone in the residence, was reportedly violent, intoxicated, and in possession of firearms. As the evening progressed, the Royal Oak Police Department received numerous telephone calls regarding the situation. These callers expressed severe concern regarding Mr. Heaps' mental or physical well-being. Along with other information, the callers related the following: (1) Heaps had taken a large number of Tylenol pills and had been drinking vodka all day; (2) Heaps' family had repeatedly sought information about committing Heaps to a mental institution; (3) Heaps' relatives wanted to enter Heaps' house but were afraid because Heaps was violent and possessed weapons; and (4) Heaps' brother heard a popping sound similar to the firing of a small caliber weapon emanate from Heaps' house.1 Despite requests from Heaps' family members for police assistance, plaintiff never dispatched any officers to the scene. The next morning, Heaps was found dead in his home. An autopsy disclosed that Heaps had died shortly after midnight from a self-inflicted gunshot wound.

Royal Oak Police Chief Richard G. Kemp ordered an immediate internal investigation.2 Plaintiff was subsequently charged and found responsible for nine different counts of having failed to properly perform his duties as an officer.3 As a disciplinary action, plaintiff was demoted, suspended, placed on one-year probation, and precluded from holding or applying for certain positions for one year. A memorandum listing the discipline imposed on plaintiff was shown to media representatives.4 Although it is not clear from the record whether any of the stories preceded the issuance of the memorandum, plaintiff's disciplinary proceedings became the subject of at least one television news story and at least three newspaper articles.

Plaintiff filed a labor grievance. Following a hearing, an arbitrator affirmed the disciplinary action after finding sufficient evidence to support the charges and the disciplinary action. Plaintiff thereafter appealed to the circuit court. In a decision that was later affirmed by this Court, the circuit court upheld the arbitrator's decision. See Porter v Royal Oak, unpublished opinion per curiam of the Court of Appeals, issued April 13, 1995 (Docket No. 163682).

On April 26, 1991, plaintiff filed the present action in the Oakland Circuit Court, claiming that defendants (1) communicated to the media false, noncontextual, and defamatory information; (2) invaded his privacy by publicly disclosing private facts and placing him in a false light; (3) violated public policy by disciplining him for failing to take an action that would have violated Heaps' constitutional rights; and (4) violated provisions of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq.

The circuit court granted defendants' motion for summary disposition of the first three counts pursuant to MCR 2.116(C)(10). Plaintiff's claim based on the Employee Right to Know Act (count four) was dismissed pursuant to a stipulation of the parties.5

In granting summary disposition, the lower court ruled that because the truth of the charges against plaintiff had been established in the grievance proceeding, plaintiff was estopped from relitigating the factual basis of the charges. The circuit court dismissed plaintiff's defamation, invasion of privacy, and public disclosure of private fact claims on the ground that truth is an absolute defense. Also, the lower court dismissed plaintiff's violation of public policy claim on the basis that plaintiff had been disciplined for failing to respond to a report of a possible gunshot and drug overdose, not for refusing to break into Heaps' home.

II

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim. Panich v Iron Wood Products Corp, 179 Mich.App. 136, 139; 445 N.W.2d 795 (1989). In deciding such a motion, the trial court must consider the pleadings, depositions, affidavits, admissions, and other documentary evidence, MCR 2.115(G)(5), and must give the nonmoving party the benefit of every reasonable doubt. Radtke v Everett, 442 Mich. 368, 373; 501 N.W.2d 155 (1993); Rice v ISI Mfg, Inc, 207 Mich.App. 634, 635-636; 525 N.W.2d 533 (1994); Morganroth v Whitall, 161 Mich.App. 785, 788; 411 N.W.2d 859 (1987). Although the court should be liberal in finding genuine issues of material fact, summary disposition is appropriate when the party opposing the motion fails to provide evidence to establish a material factual dispute. McCart v J Walter Thompson USA, Inc, 437 Mich. 109, 115; 469 N.W.2d 284 (1991); Mascarenas v Union Carbide Corp, 196 Mich.App. 240, 243; 492 N.W.2d 512 (1992).

III

Plaintiff argues that the circuit court erred in granting summary disposition in favor of defendants on the ground that plaintiff was collaterally estopped from contesting the factual conclusions made by the arbitrator in the grievance proceeding. We disagree. Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding. People v Gates, 434 Mich. 146, 154; 452 N.W.2d 627 (1990); Bullock v Huster, 209 Mich.App. 551, 556; 532 N.W.2d 202 (1995). This principle likewise applies to factual determinations made during grievance hearings or arbitration proceedings. Fulghum v United Parcel Service, Inc, 130 Mich.App. 375, 377; 343 N.W.2d 559 (1983), aff'd 424 Mich. 89, 92; 378 N.W.2d 472 (1985); see Lumbermen's Mutual Casualty Co v Bissell, 220 Mich. 352, 354; 190 NW 283 (1922).

In the present case, we hold that the circuit court correctly ruled that plaintiff was estopped from contesting the determinations made in the grievance proceeding. Because plaintiff is unable to establish facts essential to support his defamation, false light invasion of privacy, and public policy claims, the circuit court correctly granted defendants' motion for summary disposition of these claims.

A

DEFAMATION

Plaintiff contends that defendants defamed him when they gave the news media a memorandum that listed the discipline that had been imposed on him. Plaintiff bases this defamation claim on his contention that the charges against him were false. However, the arbitrator sustained the charges against plaintiff and the memorandum at issue listed only the charges that had been sustained. In other words, the truth of the memorandum had been established. Because truth is an absolute defense to a defamation claim, Rouch v Enquirer & News of Battle Creek, 427 Mich. 157, 173-174; 398 N.W.2d 245 (1986); Cochrane v Wittbold, 359 Mich. 402, 409; 102 N.W.2d 459 (1960); Postill v Booth Newspapers, Inc, 118 Mich.App. 608, 618; 325 N.W.2d 511 (1982), citing Restatement Torts, 2d, § 558, and plaintiff is estopped from contesting the arbitrator's final ruling that the charges against plaintiff had been sustained, Gates, supra at 154; Fulgum, supra at 377, the circuit court correctly dismissed count one of plaintiff's complaint.

B

FALSE LIGHT INVASION OF PRIVACY

Similarly, the circuit court properly dismissed plaintiff's claim of "false light" invasion of privacy on the basis of collateral estoppel. As this Court held in Duran v Detroit News, 200 Mich.App. 622, 631-632; 504 N.W.2d 715 (1993):

See also Morganroth, supra at 792-793. In accordance with this standard, this cause of action cannot succeed if the contested statements are true. Morganroth, supra at 793-794. Here, plaintiff alleges only that defendants gave the media a memorandum that listed the charges against him. Because we have already determined that the truth of the memorandum cannot now be contested, plaintiff is unable to show that defendants portrayed him in a false light. Therefore, summary disposition of plaintiff's false light claim was properly granted in defendants' favor. To the extent that plaintiff contends that the media's use of this information caused a false public impression that he caused Heaps' death, we note that defendants cannot be held liable for the characterization of truthful information by the media.

C

PUBLIC POLICY

Plaintiff is also collaterally estopped from contending that the discipline imposed on him was a violation of public policy. The crux of plaintiff's argument in this regard suggests that he was disciplined for refusing to enter Heaps' house illegally. However, contrary to plaintiff's argument on appeal, this issue was clearly raised and resolved in the prior proceeding. In fact, in the prior case both this Court and the circuit court specifically addressed the same public policy argument that plaintiff now asserts.6 Accordingly, plaintiff is collaterally estopped from relitigating this issue. Gates, supra at 154; Bullock, supra at 556.

IV

Next, plaintiff contends that the circuit court erred in dismissing his claim that, by informing reporters of the discipline imposed on him, defendants tortiously invaded his privacy by disclosing embarrassing private facts. We disagree and conclude that although the circuit court erred in premising summary disposition on the ground that the information was true, there is no error requiring reversal because summary disposition was the correct result. In re Powers, 208 Mich.App. 582, 591; 528 N.W.2d 799 (1995); Paul v Bogle, 193 Mich.App. 479, 492; 484 N.W.2d 728 (1992).

In Duran, supra at 631, this Court described the tort of invasion of privacy by public disclosure of private facts as follows:

See also Doe v Mills, 212 Mich.App. 73; 536 N.W.2d 824 (1995); Winstead v Sweeney, 205 Mich.App. 664, 668; 517 N.W.2d 874 (1994); Ledsinger v Burmeister, 114 Mich.App. 12, 24; 318 N.W.2d 558 (1982); Fry v Ionia Sentinel-Standard, 101 Mich.App. 725, 728; 300 N.W.2d 687 (1980). In Winstead, supra, a panel of this Court explained some of the topics that are of legitimate interest to the public:

See generally Virgil v Time, Inc, 527 F.2d 1122, 1130 (CA 9, 1975); Cassidy v American Broadcasting Cos, Inc, 60 Ill.App.3d 831, 839; 17 Ill.Dec. 936; 377 N.E.2d 126 (1978); Buzinski v DoAll Co, 31 Ill.App.2d 191, 195; 175 N.E.2d 577 (1961); 57 ALR4th 520, §§ 10, 11, pp 572-602. If the facts that were disclosed were "private," and therefore outside the legitimate interest of the public, this cause of action may be maintained even if the material that is disclosed is truthful. Winstead, supra at 669, citing 3 Restatement Torts, 2d, § 652D.

After applying this standard, we conclude that although the circuit court erred in premising summary disposition on the ground that the information was true, summary disposition was nevertheless appropriate because the topic of the material at issue was of legitimate interest to the public and therefore not "private."

The work performed by police officers is intricately connected to the important, pervasive, and sometimes volatile topic of public safety and is one of the most primary functions of local government. Indeed, as stated by the Arizona Supreme Court, "[i]t is difficult to conceive of an area of greater public interest than law enforcement. Certainly the public has a legitimate interest in the manner in which law enforcement officers perform their duties." Godbehere v Phoenix Newspapers, Inc, 162 Ariz. 335, 343; 783 P.2d 781 (1989). Here, the information that defendants disclosed concerned the discipline that was imposed on a supervisory police officer who refused to dispatch public safety officers in his command to investigate a reported gunshot despite impassioned pleas for police assistance. Under these circumstances, we conclude that information regarding the present situation was clearly within the legitimate public concern. See generally 30 ALR3d 203, § 8(a), pp 222-233. In our view, it is distinguishable from those more personal situations where this Court has found it improper to rule as a matter of law. See, e.g., Doe, supra (naming plaintiffs on placards as they were having abortions); Winstead, supra (naming plaintiffs in a news article as having had several abortions and being involved in surrogate parenting and partner swapping).

Therefore, we hold, as a matter of law, that the material disclosed by defendants concerned a subject about which the public has a legitimate interest. Accordingly, the lower court properly granted summary disposition in favor of defendants of plaintiff's claim that defendants invaded his privacy by publicly disclosing private facts.7

In view of our disposition, we need not address the issue of governmental immunity.

Affirmed.

M.E. CLEMENTS, J., concurred.

JANSEN, J. (concurring in part and dissenting in part).

I respectfully dissent from part IV of the majority opinion regarding plaintiff's claim of invasion of privacy by public disclosure of private facts. I would hold that whether the material at issue was in the legitimate interest of the public is a factual issue for the jury to resolve and should not be decided as a matter of law.

The trial court erred in granting summary disposition on the basis that the information disseminated to the media was true. This is not an element of the claim of public disclosure of private facts. See Beaumont v Brown, 401 Mich. 80, 93-103; 257 N.W.2d 522 (1977); Winstead v Sweeney, 205 Mich.App. 664, 668; 517 N.W.2d 874 (1994). However, I do not agree with the majority that summary disposition is appropriate because the material disclosed was of legitimate interest to the public and was, therefore, not private as a matter of law. I believe that whether the material disclosed was of legitimate interest to the public is a factual question for the jury.

In order to sustain a claim for public disclosure of private facts, a plaintiff must show that the disclosed information is highly offensive to a reasonable person and that the information is of no legitimate concern to the public. Winstead, supra, p 668. The information published must concern the individual's private life and must not have been a matter of public record or otherwise exposed to the public eye. Id.

Here, plaintiff had both a contractual and a statutory expectation that his internal disciplinary record would not be disclosed to the public. The collective bargaining agreement in effect at the time provided that an "employee's files shall not be made available to any person or organization other than the employer and the employee without the employee's expressed authorization." Further, the Employee Right to Know Act provides that an employer shall not divulge a disciplinary report to a third party (who is not part of the employer's organization or who is not part of the labor organization representing the employee) without written notice as provided in the statute. MCL 423.506; MSA 17.62(6).1 Therefore, plaintiff had a reasonable expectation that his disciplinary record would not be divulged to the public.

The majority overstates that law enforcement is of legitimate interest to the public and overlooks the fact that plaintiff had a statutory and contractual expectation not to have his disciplinary record exposed to the public. In Winstead, supra, p 674, this Court quoted approvingly from Virgil v Time, Inc, 527 F.2d 1122, 1131 (CA 9, 1975):

Accordingly, I believe that plaintiff has presented sufficient evidence establishing a claim of public disclosure of private facts to withstand summary disposition. Plaintiff has set forth evidence that his disciplinary record was disclosed to the media and then broadcast through the media. Further, whether the public disclosure involves embarrassing private facts is a question of fact for the jury. Beaumont, supra, p 106; Doe v Mills, 212 Mich.App. 73, 81; 536 N.W.2d 824 (1995). Plaintiff has presented evidence that his actions during the Heaps incident was broadcast in a manner to embarrass and humiliate him. Doe, supra, p 82. Finally, where plaintiff had a statutory and contractual expectation not to have the disciplinary record revealed to anyone other than his union and his employer, there is a factual issue for the jury to resolve regarding whether the information disclosed was of legitimate interest to the public.

I would reverse the trial court's order granting summary disposition in defendants' favor regarding the public disclosure of private facts claim. Because the trial court did not address the governmental immunity claim by defendants, I would leave the question whether plaintiff has pleaded facts in avoidance of governmental immunity for the parties to resolve on remand.

With respect to the remaining aspects of the majority's opinion, I concur.