MUDGE v. MACOMB COUNTY

Opinion

TAYLOR, Justice.

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), M.C.L. § 801.81 et seq.; M.S.A. § 28.1770(1) et seq., and (2) a violation of 42 U.S.C. § 1983.1 The breach of state law count alleged that defendants had failed to commence a civil action within the prescribed period that would have potentially allowed defendants to obtain a portion of their bond monies under the PRCA. Plaintiffs thus sought return of their bond monies because their money had been converted without statutory authority. Plaintiffs also asserted that the acts and omissions of defendants had violated 42 U.S.C. § 1983 because they amounted to an unconstitutional deprivation of their property in violation of the 5th and 14th Amendments of the United States Constitution.

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 N.W.2d 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. 888, 562 N.W.2d 784 (1997).

Plaintiffs were charged with unspecified criminal charges in the Macomb Circuit Court. Brown posted a $10,000 cash bond on May 17, 1988, to secure his release on bail.

On October 5, 1988, while the charges were still pending against Brown, the sheriff's department requested, on an ex parte basis,2 that the judge assigned to Brown's criminal case, enter an order.

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 Brown's money was apparently entered before he was convicted3 and more than eight months before he was requested to provide financial information.4 The sheriff's department apparently never served a copy of the ex parte order on Brown or the attorney representing him in his criminal case. It also appears that Brown first learned that his bond monies had been subject to the October 5, 1988, ex parte order after he was sentenced and he sought return of his bond money.5

A somewhat similar scenario occurred with reference to Mudge. A cash bond of $1,100 was posted by Mudge on December 20, 1988. Apparently soon after being sentenced to four months in jail, the sheriff's department requested the judge assigned to preside over Mudge's criminal charges to enter an order on an ex parte basis. The prefatory language and the actual language in the order that was entered was identical to the order entered with reference to Brown, except that the order recited that $1,000 was in the Court's possession and that it was to be released 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."6 Mudge's bond money appears to have been seized two months before she received defendants' financial status form. As with Brown, the ex parte order apparently was not served on Mudge or the attorney who was representing her in her criminal case. Mudge was released from jail on November 17, 1989. On March 21, 1990, Mudge was sent a form demand letter from the "County of Macomb Reimbursement Department." This letter indicated that Mudge had a current balance due of $1,140 and that payment of $125 was due. The letter further stated that the account would be turned over to a collection agency unless a payment was received within ten days.

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, 534 N.W.2d 539. 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 42 U.S.C. § 1983 for unconstitutional or "illegal policies or customs" and that liability could be imposed for deliberate indifference to a person's constitutional or "statutory rights." Id. at 445, 534 N.W.2d 539.

I

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 42 U.S.C. § 1983. See, e. g., Huron Valley Hosp. v. City of Pontiac, 887 F.2d 710, 714 (C.A.6, 1989) (42 U.S.C. § 1983 is limited to deprivations of federal statutory and constitutional rights; it does not cover official conduct that allegedly violates state law). Accord Crawford-El v. Britton, 523 U.S. ___, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (the very purpose of § 1983 is to provide a remedy for the violation of federal rights).

Plaintiffs' amended complaint alleged that defendants' conduct violated the PRCA. However, plaintiffs also pleaded 42 U.S.C. § 1983 as a separate count, alleging defendants' actions violated their rights under the 5th and 14th Amendments of the federal constitution. If defendants' conduct violated the federal constitution, the fact that the conduct also violated the PRCA is of no moment and is not a ground allowing a court to find that plaintiffs have not alleged a cause of action under 42 U.S.C. § 1983.8 Zinermon v. Burch, 494 U.S. 113, 124-125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (a plaintiff may bring a § 1983 action for an unlawful search and seizure [in violation of the Fourth Amendment of the constitution] despite the fact that the search and seizure also violated the state's constitution or statutes).

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 14th Amendment. Id. at 125, 110 S.Ct. 975. The Court said that the first is a claim against a state for a violation of many of the rights under the Bill 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, 110 S.Ct. 975. 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 process because of the random and unpredictable nature of the deprivation.9 The Court concluded:

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 42 U.S.C. § 1983.

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 and unpredictable ),11 and (2) a predeprivation hearing could have been provided. Accord Hudson v. Palmer, 468 U.S. 517, 532-533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state [here municipal] procedure, rather than random and unauthorized action), Augustine v. Doe, 740 F.2d 322, 329 (C.A.5, 1984) (Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 [1981], applies only when the nature of the challenged conduct would render provision of predeprivation procedural safeguards impracticable or infeasible), and Alexander v. Ieyoub, 62 F.3d 709 (C.A.5, 1995) (the Parratt/Hudson doctrine did not foreclose a § 1983 claim because the "random and unauthorized" element necessary for its application was absent where the challenged actions were in accordance with customary procedures).12

Plaintiffs have properly alleged that they could have been provided, and therefore should have been provided, with notice and an opportunity to be heard before their bond monies were seized, or at least been provided with an opportunity to contest the matter at a show cause hearing. As the Sixth Circuit has explained:

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 U.S. 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 [70 S.Ct. 652].... In short, "within the limits of practicability," id. at 318 [70 S.Ct. 652], a State 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 U.S. 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

II

Having determined that the existence of postdeprivation 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, 110 S.Ct. 975, quoted with approval the following language from Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)16:

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 circuit judge or the Court of Appeals to vacate or overturn the ex parte orders when they finally learned of them is no bar to plaintiffs' § 1983 action.

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 N.W.2d 177 (1997).17 We deem the issue of causation inadequately briefed and do not reach it.18 As we explained in Mitcham v. Detroit, 355 Mich. 182, 203, 94 N.W.2d 388 (1959):

III

Having determined that plaintiffs' § 1983 claim is not necessarily barred by the existence of postdeprivation 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 counterclaim 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 thenapplicable 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 disposition of the plaintiffs' complaint. The Court of Appeals reversed the trial court's summary dismissal of the plaintiffs' complaint, holding that defendants' actions were in violation of the PRCA. The ex parte orders were vacated and the bond monies ordered returned. The Court of Appeals said that defendants' opportunity to seek reimbursement under the PRCA was lost because it had vacated the ex parte orders and because the limitation period of the PRCA had lapsed. Id. at 443, 534 N.W.2d 539.

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 thenexisting 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, § 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 be reduced." Pennsylvania R Co. v. Miller, 124 F.2d 160, 162 (C.A.5, 1941).

As explained in Warner v. Sullivan, 249 Mich. 469, 471, 229 N.W. 484 (1930):

Accord Bull v. United States, 295 U.S. 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,... 1 A.L.R.2d 630, § 14, 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 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 have unclean hands.21 We first note that this argument was not made to the trial court. Because of this, neither plaintiffs nor defendants submitted affidavits or other documentary evidence bearing upon this question. Further, this issue was not reached by the Court of Appeals. Under such circumstances, it would be unwise and premature for this Court to consider this argument.22 While we have found that 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 factual development occurs, an evaluation of plaintiffs' claim that defendants' have unclean hands is inappropriate.23

We affirm in part, reverse in part, and remand for further proceedings.

WEAVER, Justice.

I concur only in parts I and II.

BOYLE, Justice (concurring in part and dissenting in part).

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 treatment of the causation issue, to the extent it deems the issue inadequately briefed.2 I concur with the majority's treatment of plaintiff Mudge's allegations of procedural due process violations under 42 U.S.C. § 1983; however, I write separately to acknowledge the existence of confusion in the federal circuit courts of appeal regarding the principal case on which the majority relies to resolve the § 1983 issue.3

I

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, § 5, p. 231, for the proposition that "recoupment refers to the 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.'" Op. at 855. 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," op. at 855, thus substituting "the PRCA" for the "contract" in the case-law review in Am.Jur.

To avoid confusion over assertion of recoupment in the contract setting as opposed to other contexts,5 the trial court ought to analyze the defendant's right to assert the defense in light of the Supreme Court's discussion of recoupment in Bull v. United States, 295 U.S. 247, 262, 55 S.Ct. 695, 79 L.Ed. 1421 (1935):

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 custom, the conclusion that the county's hands are unclean might be appropriate. Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). However, if the county merely hired an individual to implement the PRCA and that individual and the sheriff acted without the county's sanction, the county should not be found to have unclean hands where it attempted in good faith to comply with the PRCA. As noted above, if the county did not officially sanction the ex parte bond-retention procedure, under Monell, the county is likely not even the proper defendant. Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Resolution of the issue now would amount to the Court's resolving that the county's official sanction was present, a conclusion not supported by this record.

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 Summary Report— 08/19/85." The document appears to be the result of the efforts of the individual hired to implement the PRCA. It notes that the procedures described therein are "intended to give a general overview of typical implementation of the program." The document generally describes implementation:

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 the 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 penalties under the act (subsection 5[2]—denial of good time credit; § 7—civil action seeking reimbursement expenses); and (4) referred cases to the county's corporation counsel where inmates refused or made no attempt to pay. Nowhere in the document does a procedure for attaching bond monies appear; however, the document's reference to the temporary restraining order references such orders as "pending a hearing."

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 the return of bond was timed to foreclose assertion of the debt, the record is wholly inadequate.

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 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 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 F.2d 1387, 1409 (C.A.7, 1990)(second reh en banc) (Easterbrook, J., concurring) (Easter House III).7 Easter House III was the second en banc opinion of the United States Court of Appeals for the Seventh Circuit discussing this difficult issue, and it is a leading case in identifying the dispute over Zinermon in the federal circuit courts. I concur with the majority here because its decision is consistent with Judge Cudahy's dissents in Easter House III and Easter House v. Felder, 879 F.2d 1458, 1481 (C.A.7, 1989)(reargued en banc) (Easter House II), and Judge Cudahy's original panel opinion in Easter House v. Felder, 852 F.2d 901, 904 (C.A.7, 1988)(Easter House I).

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 F.3d 1380, 1997 WL 113726, 1 (C.A.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 ... [and] treated the bond monies as if ... forfeited to the county and as if [the ex parte orders attaching the bond monies had been] already reduced to judgment, without ... notice and a hearing." Op. at 853.9 The sheriff allegedly treated the ex parte orders as if they established the county's right to receive the monies rather than as a temporary restraint on disposition of plaintiffs' property pending further hearing. Thus, 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.10

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 postdeprivation process. Zinermon appears to require predeprivation process in virtually all circumstances, see id. at 127-128, 110 S.Ct. 975 (the Parratt/Hudson doctrine applies only in rare cases), but courts have struggled to apply its analysis consistently.

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, 110 S.Ct. 975. 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 the actor in the context of applicable procedural safeguards, i.e., where the alleged deprivation was in direct procedural contravention of the state statute authorizing the very deprivation that occurred. Alternatively, if Parratt/Hudson is interpreted broadly, and postdeprivation process is available, the plaintiff may not maintain the § 1983 cause of action where the official actor's allegedly unconstitutional conduct was not authorized by the delegation of discretion.

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 majority in Easter House III concluded that the state action in question was the kind of random and unauthorized action that fails to state a claim where the state provides an adequate postdeprivation remedy pursuant to Parratt/Hudson. The plaintiffs alleged that the defendants conspired to deprive the plaintiff of its adoption agency license. In concluding that the deprivation fell within the Parratt/Hudson doctrine, the court reasoned:

Significantly, the majority held:

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, 110 S.Ct. 975. 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 U.S. 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 dissenting interpretation of Zinermon "that predeprivation process is the rule, not the exception," Easter House III at 1411, to the extent the analysis applies to established procedures and to the extent there were such established procedures in this case.16

Judge Cudahy's first dissent in Easter House II aptly explained the position we adopt:

As in Zinermon, the case before us does not appear to involve an unplanned, uncontrollable deviation from the authorized state procedure resulting in deprivation of a constitutionally protected interest by "fluke."17 Our position is, therefore, consistent with Judge Cudahy's conclusion that

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 hearing, see, e.g., MCR 3.310, thus stating a claim under § 1983.18

The Fifth Circuit's panel decision in Caine v. Hardy, 905 F.2d 858 (C.A.5, 1990) (Caine I ),19 is also instructive with regard to the debate over the limits of the Parratt/Hudson doctrine. The Fifth Circuit panel, having interpreted Parratt narrowly, acknowledged that Zinermon effectuated a change in the "controlling constitutional authority ... [and] require[d] reconsideration of [the] Court's Parratt/Hudson jurisprudence." Caine I at 861. Judge Williams, characterized the Zinermon decision as being based on three considerations: (1) the deprivation occurred at a predictable time, (2) predeprivation process was not impossible, and (3) the conduct in question was not "`unauthorized' as that term was used in Parratt and Hudson." Id. at 861. The officials in Zinermon were delegated by the state the authority to effectuate "the very deprivation complained of," Caine I at 861, quoting Zinermon at 138, 110 S.Ct. 975, and proceeded to ignore the procedural safeguards designed to ensure constitutionality. The officials in Parratt and Hudson never had any such authority.20

Judge Williams explained:

It is worth noting, despite the conclusion that Caine I, Easter House I, and Fields present the correct understanding of Zinermon, that Judge Jones dissented in Caine I with intensity rivaling that of Judge Cudahy in the Easter House cases, and that Judge Jones' approach ultimately won over the Fifth Circuit en banc in Caine II. Judge Jones' ultimately prevailing view was succinctly described in Caine I:

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 U.S. 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 [U.S. at 139, 110 S.Ct. 975]. [Caine I at 865 (Jones, J., dissenting).]

However, Judge Jones also acknowledged agreement with the majority that "Zinermon... restricted Parratt/Hudson to cases in which `it truly is impossible to provide predeprivation safeguards.'" Id. at 865-866. Her disagreement, like the disagreement in the Seventh Circuit, lies chiefly with the scope to be given Zinermon regarding the issue whether misuse or abuse of delegated power can ever be considered random and unauthorized given that the actors were "`authorized' to effectuate the scheme." Caine I at 866 (Jones, J., dissenting). Judge Jones explained why, under her interpretation, "[t]he factors which distinguish Zinermon from Parratt/Hudson " were not applicable to the plaintiff's loss of privileges in Caine:

Judge Jones, thus, distinguished between officials whose exercise of judgment is specifically authorized, but applied in an unconstitutional manner largely because the legislature failed to adequately circumscribe the discretion delegated, and officials whose conduct is outside the parameters of the discretion granted them under state law and therefore characterized as random, unauthorized, and unpredictable sufficient to trigger the Parratt/Hudson doctrine. This may correctly explain Zinermon. Like Judge Easterbrook's reference to the difference between liberty and property, Judge Jones' distinction between a delegation of "broad power and little guidance" and a delegation of discretion that is more limited by procedural safeguards within a statute may provide a clue about the Supreme Court's underlying rationale in Zinermon. If so, Zinermon may, as Judge Jones suggests, represent a sui generis situation. However, lacking the comfort of further Supreme Court clarification, I agree with the majority and the approach taken by Judge Williams for the Caine I majority and by Judge Cudahy, that "predeprivation process is the rule, not the exception," Easter House III at 1411 (Cudahy, J., dissenting), and that § "1983 applies to all violations of constitutional rights—not only those that are authorized by state law, but also those that result from abuses of state authority and are forbidden by state law." Id. at 1412.22

Although the majority appears to imply that the rule to be gleaned from Zinermon is clear, there is confusion in the federal circuit courts over the meaning and effect of that case on § 1983 jurisprudence. As the above sampling of the leading cases indicates, the only conclusion that can confidently be stated is that the relationship between Parratt/Hudson and Zinermon requires further clarification.23

C

One way to approach analysis of the controversy involves two models of § 1983 jurisprudence. See Juarez, "The Supreme Court as the Cheshire Cat: Escaping the section 1983 wonderland," 25 St. Mary's L. J. 1, 19 (1993). The "Legalist Model" would, consistent with a strict interpretation of Parratt and Hudson, ask only "whether state laws are constitutionally adequate. If there is an adequate state law, then the plaintiff cannot bring a Section 1983 claim, and must instead rely on state-law claims heard, in most cases, in state court." Juarez, supra at 8. Presumably, this approach would encompass both express and implied inadequacies. The "Governmental Model" would allow a § 1983 cause of action where "any state official has infringed the plaintiff's constitutionally protected interests ... even when the state's lawmakers have sought to prevent the violation of constitutional rights." Id. at 10.24 Although it had appeared that the Legalist Model was the governing model after Hudson, Zinermon added confusion to the equation, demonstrated by the decisions of the federal courts in response. As Juarez noted, "The [Zinermon] Court concluded by freely mixing the Governmental and Legalist Models, although these two models are contradictory in their approaches." Juarez at 24.25 Although the Zinermon Court clearly reached the result that would be reached under the Governmental Model, Zinermon's use of both the Legalist Model and the Governmental Model has led to divergence among the circuits. The majority in our case also reaches the result that the Governmental Model would yield.

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 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 minority and at odds with the Seventh Circuit with respect to the interpretation of § 1983 post-Zinermon by reaching the Governmental Model result.26 The leading cases in the Fifth Circuit apply a Legalist approach, see Caine II, supra; Charbonnet v. Lee, 951 F.2d 638 (C.A.5, 1992), while the Fourth Circuit appears to adhere more closely to the Governmental approach. See Juarez, supra at 30-31; Fields, supra.27 Confusion has also developed within the circuits over how to approach § 1983 after Zinermon to the extent that cases combine both models or different panels or courts in the same circuit apply different approaches. See, e.g., Juarez at 34 (detailing splits within various circuits).

Although commentators28 and a majority of the federal courts appear to have questioned the validity of the Supreme Court's approach in Zinermon, the majority simply stands on Zinermon and leaves it at that. I have written separately to explore some aspects of the problem to give a signal to the bench and bar regarding the significance of this case and, it is hoped, encourage the Supreme Court to revisit this issue.29

The fundamental problem with Zinermon is that it reaches the more "governmental" result while employing, in part, the more "legalist" inquiry into the authorization issue. For the purposes of our case, the more appropriate result is the one the Governmental Model would reach, although elements of the Legalist approach appear to survive in Justice Taylor's opinion as they did in Zinermon. To be certain, lower courts will be better served to err on the side of the Governmental approach, as we have done, rather than seeking to glean a coherent rule from Zinermon.30

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 majority's result that plaintiff Mudge has stated a claim under 42 U.S.C. § 1983.31

WEAVER, Justice.

I concur only in part I.