C1 James Stefanski v. Saginaw County 911 Communications Center Auth

• Court: Michigan Court of Appeals
• Decided: January 4, 2024
• Docket: 364851
• Status: Unpublished

Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JAMES STEFANSKI, UNPUBLISHED January 4, 2024 Plaintiff-Appellant,

v No. 364851 Saginaw Circuit Court SAGINAW COUNTY 911 COMMUNICATIONS LC No. 22-046428-NZ CENTER AUTHORITY,

Defendant-Appellee.

Before: RIORDAN, P.J., and MURRAY and M. J. KELLY, JJ.

M. J. KELLY, J. (concurring).

I concur with the majority that, under Landin v Healthsource Saginaw, Inc, 305 Mich App 519, 532-533; 854 NW2d 152 (2014), reporting a violation of the common law to a public body is not an action protected by the Whistleblowers’ Protection Act (WPA), MCL 15.369 et seq. As a result, the trial court did not err by granting summary disposition to defendant. I write separately, however, because I believe that Landin’s holding is contrary to the plain language of MCL 15.362.

MCL 15.362 provides:

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.

At issue is the trial court’s interpretation of the phrase “a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States . . . .” Because the pertinent terms “law” and “promulgated” are not defined by the statute, they must be given their plain and ordinary meaning. See Brackett v Focus

-1- Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008). A dictionary may be consulted if the legislative intent cannot be determined from the statute itself. Johnson v Pastoriza, 491 Mich 417, 436; 818 NW2d 279 (2012). Moreover, because the WPA is a remedial statute, it “must be liberally construed to favor the persons that the Legislature intended to benefit.” Anzaldua v Neogen Corp, 292 Mich App 626, 631; 808 NW2d 804 (2011). “The underlying purpose of the WPA is protection of the public.” Id.

According to Black’s Law Dictionary (10th ed), a “law” is “[t]he aggregate of legislation, judicial precedents, and accepted legal principles,” and “law” includes both statutes and the common law. Further to “promulgate” is “[t]o declare or announce publicly; to proclaim” or “[t]o put (a law or decree) into force or effect.” Black’s Law Dictionary (10th ed). The common law is “judge-made law.” Werner v Hartfelder, 418 Mich 906, 908; 342 NW2d 520 (1984). Therefore, judicial decisions, which put the common-law into force or effect, are laws promulgated under the laws of this state by a political subdivision of this state, i.e., the judiciary. Indeed, this Court has previously recognized that “[t]he term ‘law’ may include those principles promulgated in constitutional provisions, common law, and regulations as well as statutes.” Vagts v Perry Drug Stores, 204 Mich App 481, 485; 516 NW2d 102 (1994). See also McNeil v Charlevoix Co, 275 Mich App 686, 698; 741 NW2d 27 (2007) (accord).

Under the common law, a plaintiff can bring a claim for gross negligence. See Xu v Gay, 257 Mich App 263, 267-268; 668 NW2d 166 (2003). Moreover, under the GTLA and the Emergency 9-1-1 Services Enabling Act, a governmental employee is not immune from gross negligence. See MCL 691.1407 and MCL 484.1604.1 Here, given that Stefanski alleged that he reported to Director Daniel Weaver that Supervisor Logan Bissell was grossly negligent in coding a 911 call made on July 5, 2021,2 he reported a violation of the common law, which under the plain language of MCL 15.362 is a report of a violation of law promulgated pursuant to the law of this state. Therefore, were it not for this Court’s holding in Landin, I would affirm. Additionally, I would conclude that Landin was wrongly decided because its holding is contrary to the plain language of MCL 15.362, and I would call for a conflict panel under MCR 7.215(J)(2).

/s/ Michael J. Kelly

1 Neither the GTLA nor the Emergency 9-1-1 Service Enabling Act are laws creating liability for the gross-negligence of governmental employees. Rather, both laws merely indicate that there is no immunity for acts of gross negligence committed by a governmental employee. As a result, they do not provide an independent basis upon which to conclude that Stefanski did or did not engage in a protected activity under the WPA. 2 On appeal, defendant contends that Stefanski never alleged that Bissell’s conduct was grossly negligent. However, given that there is conflicting evidence in the record as to what information was reported to Weaver, I would conclude that resolution of that issue is a question of fact that cannot be resolved on a motion for summary disposition.

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