Opposition Brief — Martin v. Horton

ie :

| ad !

j \ j w = i

p— /

Sfpreme Cous, US

oe. r)

ry

No. 97-543 |

aaa

oll

In The |

Supreme Court of the United States

-

October Term, 1997

MICHAEL MARTIN and CYNTHIA MARTIN,

Petitioners,

VS.

MARK HORTON, ef al., jointly and severally,

Respondents.

On Petition for Writ of Certiorari to the

Court of Appeals of the State of Michigan

BRIEF IN OPPOSITION FOR RESPONDENTS CAS

THOMAS H. KEATING

Counsel of Record

VALERIE H. MOCK

REUBEN M. WATERMAN, JR.

JENKINS & KEATING

Attorneys for Respondents CAS

18720 Mack Avenue

Suite 110

Grosse Pointe Farms, MI 48236

(313) 884-4200

72531

utz

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 E pagelat

ervices, inc.

™ ” M ener = ne eee anes

is saeco WER SR Se IY

“ a aad os $4 ew eiiah lap o haipentene wep eoeittins “ ory we ay wy sa ot

mn NBR oe AGS Ol tad ‘foananiga pa si a

Pes r’ =

“ an,

ane

gut

ville lei ‘lk

53 aia gls SK THe

4. 53

: eae

pe atl Sim

TABLE OF CONTENTS

Page

Me EG vcs cokcervcihns teeabuncvasders ili

Pn OE IE iGo och hea w ee eas news bees l

Ths EE ks KR GDA Shas S eedaes ceneiecess l

ea. Car Ce PPOIIIIES 86 o hno da i beetcewcics l

ioe: Vote PS kc bo ee cu lw ebue desea baer 3

D. Proceedings Before the Michigan Court of

PE 5 ARs 4 5 5550S eo EECA eae ees 1]

E. The Michigan Court of Appeals Decision ..... 12

ha We SE BREN hike cwaes cos Wenn des 12

wee RR ye tae Pe 12

F. Proceedings Before the Michigan Supreme

GRISEA IS PEE rag oe MA Pree 14

Reasons for Denying the Writ .................... 14

I. The Petition For Writ Of Certiorari Should Be

Dismissed For Want Of Jurisdiction. ......... 14

A. A Claim Under 42 U.S.C. § 1983 was Never

RISERS Peg re We apa Sakae peg Fae a 15

ii

Contents

Page

t. Fee CGE oc vvecccccdcdsscces 15

a. The Pleadings Applicable to CAS did not

Contain a 42 U.S.C. § 1983 Claim ... 15

b. Waiver and Abandonment .......... 16

2. ‘Fee COUS OE A nn dons cee eesans 20

B. Petitioners Have Not Appealed or Addressed

Essential Portions of the Court of Appeals

Decision on the 42 U.S.C. § 1983 Issue.

PPE OG ee iy ge ge Sore CAS 4) EEN 20

C. - The Jurisdictional Requirements of 28 U.S.C.

S257 Ase CS 5c 5 kbs on cccvess 21

Il. Review By This Court Would Resolve No

Important Question Of Federal Law. ......... 24

A. Judicial Immunity Under Michigan Law

Does Not Constitute An Important Question

eS My ret ee eee Ore 24

1. Decision Under State Law ......... 24

2. This Case was Decided on Specific Facts

Unrelated to the Blanket Immunity :

I ons ci vigcns sea vanecc: 26

f

ii

Contents

Page

3. This Court has Declined to Review the

Issue Whether Social Workers are

Immune from 42 U.S.C. § 1983

EG he WW bayou Chas sakanases 29

Conclusion and Relief Requested .................. 29

TABLE OF CITATIONS

Cases Cited:

Adams v. Robertson, 117 S. Ct. 1028, 137 L. Ed. 2d 203

Nis PO a SG kA Wak saenk oeniwceia ck: 22 , 23, 24

Ashley v. St. Joseph Mercy Hosp. of Detroit, 14 Mich. App.

mar, Pan ewe, Be S20 CIDER) «wee eke es 19

Ass'n of Hebrew Teachers of Metro. Detroit v. Jewish

Welfare Fed'n of Detroit, 62 Mich. App. 54, 233 N.W.

I ee pe ea ees as 19

Banaszewski v. Colman, 131 Mich. App. 92, 345 N.W. 2d

PN eo ee wok bias 9 hee Ko 19

Board of Directors of Rotary Int'l v. Rotary Club of

Duarte, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d

EEE ins os ass dias asa sdk oe KR oc cduas 22

Coverdell v. Department of Social Servs., 834 F.2d 758

a Ci arb dash wad nev ki wads 27

iv

Contents

Page

Doe v. Bennett, 510 U.S. 1164, 114 S. Ct. 1189, 127 L.

a 20 Bae CIES eins we cea VN es CRE ae as 29

Hoffman v. Harris, 511 U.S. 1060, 114 S. Ct. 1631, 128

is Ss Pe LENE 6 66s REA Dae h eee A Cad CREE ES 29

Joplin v. University of Mich. Bd. of Regents, 184 Mich.

Ape. 497, 459 MLW. 26 70 CUP) oc tev asian cscs 20

Joy Oil Co. v. Fruehauf Trailer Co., 319 Mich. 277, 29

OU. We, Bee et CLONE ks vc acn xeantes bs barks 19

Kast v. Citizens Mut. Ins. Co., 125 Mich. App. 309, 336

FG Wes EE Oe koe 2s OOS KEANE Chae EES 19

Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir. 1984) ... 27

Long v. Pettinato, 394 Mich. 343, 230 N.W. 2d 550

COSTE 6a ik eee boos ees eek OS 20

Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L. Ed.

60 BTC ATOR os 0 oe ks st Aiae e ae 25

Martin v. Children’s Aid Soc’y, 215 Mich. App. 88, 544

NW 20 Get (SPP O ki I ke 12, 25, 26, 27, 28

Martin v. Zak, 562 N.W. 2d 782 (1997) ............. 14, 28

Matter of Martin, 167 Mich. App. 715, 423 N.W. 2d 327

CRIBT i Soe ¥ 06a boa wk Oka eb eee 3

Contents

Page

Ministrelli Constr. Co. v. Monroe County Road Comm'n,

153 Mich. App. 144, 395 N.W. 2d 38 (1986) ...... 19

Webb v. Webb, 451 U.S. 493, 101 S. Ct. 1889, 68 L. Ed.

c £43k. 5k epee Ey PE rae Sever ETT eee. 22

Yee v. Escondido, 503 U.S. 519, 112 S. Ct. 1522, 118 L.

Ee” Bes Si. fs Sena coma ey ea rre yee ne a. 22

Statutes Cited:

y Zid A ade % - > SA eneMrena se POM ye pr rene si 21, 22

2 GRR adie Bi 9. OR emeeER errr any gery no ays 21, 22

Be Rabat URS A x de sect wenevepns ines hoetwennet passim

Mich. Comm. Laws § TEZA2 2.0. ccccccecesesesets 2

Mich. Comp. Laws § 712A.2(b) ..........----0eee- 2

Mich. Comp. Laws § 712A.15 ..........- eee ee eees 2

Mich. Comp. Laws § 712A.16 ........-.-seeeeeees 2

Mich. Comp. Laws § 712A.18 .........-..eeeeeee- 2

Mich. Comp. Laws § 712A.18(f)(2)(3) .......-..--- 2

Mich. Comp. Laws § 712A.19 ..........---eeeeeee 2

vi

Contents

Page

peach. Cae: COWES FIBA APE ie ces idehaieee 2

eee he ee EE) SR rey a 10

Rules Cited:

paocn. Curt Rule 240i iad os cookies kA aS 19

ee TE BO Os oi ae ce pee cue ein Counce: 24

APPENDIX

Appendix A — Order Of The Court Of Appeals For The

State Of Michigan Dated March 29, 1996 ........ la

1

STATEMENT OF THE CASE

A. Introduction

Petitioners Michael Martin and Cynthia Martin seek to

transform their negligence suit against Respondent Children’s

Aid Society (hereinafter “CAS”) into a claim under 42 U.S.C.

§ 1983 which was never alleged, pursued or appealed. The claim

was not even mentioned until very close to the end of the state

appellate process.

In their Petition, the Martins essentially contest — but never

mention — the March 29, 1996 refusal of the Michigan Court

of Appeals to allow their negligence case against private social

workers to be reinvented as a 42 U.S.C. § 1983 cause of action

simply for appellate enhancement.

The complex procedural history of this case, recited below,

is born of the Petitioners’ attempts over a decade to cast and

recast their action into whatever form necessary to pursue a Civil

remedy against virtually every organization, private person, or

public official that implemented the Michigan Probate Court's

directive following the unanimous finding of a jury in January

of 1986 that Petitioners abused their daughter. The finding of

abuse has never been disturbed.

B. The Abuse Proceedings

On December 18, 1984, a medical examination of Ashley

Martin, then 13 weeks old, revealed numerous broken ribs,

possibly as many as 18, in various stages of healing, fractures

of both femurs, a bruise on the lower back and a bruise on the

left leg. Ashley was placed in a foster home pursuant to the

jurisdiction of the Wayne County Michigan Probate Court

Juvenile Division.

Oe ET ee TE ORE

2

Mich. Comp. Laws § 712A.2 creates the juvenile division

of the probate court and charges it with broad jurisdiction,

including protecting the child in case of parental abuse.

§ 712A.2(b). The probate court has jurisdiction to obtain custody

of the child pending a hearing, detain and place the child in a

foster home, and receive advice from agencies as to placement

of children. §§ 712A.15, 712A.16, 712A. 18. It also requires that

the probate court receive service plans as to further handling of

the child’s case from an agency, § 712A.18(f)(2)(3), and requires

that review hearings and supplemental orders of disposition be

made. § 712A.19. The probate court is required to conduct

permanency planning hearings every 364 days if the child

remains in foster care and parental rights have not been

terminated. § 712A.19a.

After Ashley’s placement in a foster home, the Michigan

Department of Social Services (hereinafter “DSS”) filed a

petition seeking to have Ashley made a ward of the court. In

January of 1986, a jury trial was held in the Wayne County

Probate Court relative to the DSS abuse allegations. The

unanimous decision of the jury was that Ashley had been abused.

Ashley was accordingly made a temporary ward of the court.

Over the next three years, the probate judges of Wayne

County conducted numerous hearings and continued the

temporary foster care of Ashley Martin. Following the finding

of abuse, the probate court set certain conditions which had to

be met before the child could be returned to her natural parents.

One of those conditions was that the natural parents accept

responsibility for the injuries sustained by Ashley. The

Petitioners refused to accept such responsibility then and to this

day. The abuse proceedings remained at a standstill for over

two years as a result of their refusal.

Pursuant to statute and probate court orders, the DSS had

legal responsibility for Ashley. DSS frequently carries out its

3

duties in these cases by contracting with private organizations

to provide the primary case services. CAS is a non-profit child

care organization, licensed by the State of Michigan. Pursuant

to contract, CAS works with the DSS and the court to render

primary case services to abused children. CAS arranges

temporary foster care, undertakes to reintegrate the child into

the family, prepares treatment plans for the child and the family,

and provides court testimony, recommendations, and reports to

the court upon request by the court or the DSS. The CAS

activities are an integral part of the probate court’s statutory

duties and powers. In Ashley’s case, Respondents, CAS and its

individual employees Zak, Travis-Ewing, Clayton and Stoval

(hereinafter “CAS Defendants”), performed these primary case

services.

Dr. Bennie Stoval is the Director of CAS. It is solely by

virtue of this position that she is a party to this suit, although

Petitioners have sued her both as the Director and individually.

Celia Clayton, Andrea Zak and Kim Travis-Ewing were three

case workers employed by CAS who were assigned to the Ashley

Martin case.

The Petitioners appealed the January 1986 finding of abuse

by the probate court jury and the subsequent continued

placement of Ashley in foster care. The appellate process and

the probate proceedings relative to continued temporary foster

care proceeded contemporaneously in the following two years.

On April 5, 1988, the Michigan Court of Appeals affirmed

the abuse finding of the jury, but found that the Wayne County

Probate Court had been too rigid in its insistence that the

Petitioners admit responsibility for Ashley’s injuries as a

condition of her return to their custody. Matter of Martin, 167

Mich. App. 715, 423 N.W. 2d 327 (1988). CAS and the individual

Respondents then fully carried out their duties, as directed by

4

the court of appeals, the probate court, and DSS to return and

integrate Ashley into the Petitioners’ family.

C. Civil Proceedings

The procedural history of this case is extensive, involving

review of — at a minimum — four separate lawsuits, at least

eight different complaints or amended complaints, eight

dispositive motions, seven docketed appellate proceedings and |

more than twenty litigants, each with their own unique set of

facts and law.

A fully annotated procedural history is contained at two

points in the record below, namely the Appellees’ Brief and

Cross-Appellants’ Brief filed March 24, 1994 in the Michigan

Court of Appeals, together with its Appendix, Volumes I-III,

(hereinafter “Appeal App.”). Additional factual and procedural

history is contained in pages one through thirty-nine of

Defendants-Appellees’ Brief in Opposition to Appellants’

Application for Leave to Appeal in the Michigan Supreme Court,

and accompanying Addendum (hereinafter “Add.”).

However detailed the procedural odyssey of the litigants in

this case, two simple truths emerge from a review of the record.

First, the lengthy procedural history of this case essentially

involves Petitioners’ attempts to remanufacture their claims in

order to survive the various motions of Respondents and others

requiring a plain statement of Petitioners’ basis for liability.

Second, despite these efforts by Respondents and others which

essentially afforded Petitioners every opportunity to raise a

§ 1983 claim against CAS or any CAS Defendant in the trial

court, Petitioners did not do so until their Motion for Rehearing

in the Michigan Court of Appeals on February 2, 1996.

Petitioners’ omission of a § 1983 claim against the CAS

0 = Mine TCI

a a a a a pecan ecient oa met,

5

Defendants was deliberate. In fact, before this action was

initiated, on November 16, 1987, Petitioners brought a § 1983

action against certain CAS Defendants and others in federal

court. The case was quickly and voluntarily dismissed by

Petitioners on November 29, 1987. Contrary to representations

of the Petitioners to this Court, the § 1983 claim was never again

pled against Respondents.

On March 10, 1988, the Petitioners filed a Complaint in

Wayne County Circuit Court, naming Respondents CAS, Stoval,

Clayton, the DSS and several of their employees as Defendants

(hereinafter “1988 case”). The 1988 case contained no 1983

claim. (Appeal App. 8.)

On March 2, 1989, the Petitioners filed a second action in

the Wayne County Circuit Court (hereinafter “1989 case”). As

time went on, more persons had become involved with the

probate court proceeding and, consequently, Petitioners joined

more litigants. Originally, the 1989 case contained no § 1983

claim. (Appeal App. 10.)

The factual basis for both the 1988 and 1989 cases (as well

as the federal suit) was that the Defendants had implemented

the probate court directive that the Petitioners accept

responsibility for Ashley’s injuries.

On May 1, 1989, the CAS, Stoval, and Clayton filed a

Motion for Summary Disposition in the 1988 ease. The

Defendants sought dismissal under the common law doctrine

of absolute judicial immunity.

On July 14, 1989, the circuit court judge ruled that most of

the CAS conduct alleged in the Complaint was “integrally

involved in the judicial process and relative to that investigation

and decision making process” and thus subject to the protection

of judicial immunity. However, the court questioned whether

6

all actions of the CAS were so protected. Petitioners’ counsel

then suggested that, in light of the motions filed thus far and the

rulings made by the court, a new pleading was needed “to set

forth the facts and claims more specifically.” (Appeal App. 14,

at 23.)

Subsequently, additional confusion developed as to exactly

which claims remained against the CAS Defendants, and on

September 18, 1989, the Petitioners sought leave to amend the

1988 Complaint. In their formal motion for leave, Petitioners’

counsel stated:

Admittedly, Plaintiffs’ Complaint and First Amended

Complaint could be construed (or misconstrued) to

inartfully state a myriad of vaguely-asserted legal

theories: constitutional deprivations under 42 USC

1983 and 42 USC 1985; negligence; third-party

contractual beneficiary and intentional infliction of

emotional distress. The proposed Second Amended

Complaint eliminates some of these theories while

specifying and detailing the breaches of duty and

contract which Plaintiffs assert subject Defendants to

liability.

(Appeal App. 15, at 5.)

Petitioners’ motion for leave to amend was granted and, on

September 19, 1989, Petitioners filed their Second Amended

Complaint in the 1988 cases, alleging only negligence due to

the breaches of duty and contract Petitioners had referenced in

the above statement. Also, consistent with that statement,

§ 1983 was neither pled nor mentioned.

The Petitioners also sought leave to amend the 1989

Complaint on February 14, 1990. Subsequently, additional

individual motions for summary disposition and consolidation

7

ensued, and the court delayed cates on Petitioners’ motion for

leave to amend.

On February 22, 1991, the circuit court held a hearing on

numerous pending motions for both the 1988 and 1989 cases.

Applying Michigan law, the court ruled that none of the

Defendants were entitled to absolute judicial immunity, that all

of the Defendants were entitled to qualified immunity, that the

Defendants’ qualified immunity could be defeated only by proof

of bad faith, and that the undisputed facts showed no bad faith

on the part of DSS Defendants, Swiehart, Green, or Hart. DSS’

Motion for Summary Disposition was accordingly granted.

The court also ruled that because there were questions of

fact as to the bad faith of the CAS Defendants, the actions of

the CAS Defendants might not be protected by qualified

immunity. By Order dated March 14, 1991, the Motions for

Summary Disposition of the CAS Defendants were denied. A

similar motion by Dr. Schornstein, a doctor who had examined

Ashley at the request of the probate court, was also denied. The

court also granted the Petitioners’ 1989 case Motion for Leave

to File Second Amended Complaint, and ruled that the 1988

and 1989 cases were consolidated for all subsequent

proceedings.

CAS and Dr. Schornstein separately appealed the March

14th orders denying their Motions for Summary Disposition.

The CAS appeal was refused, but a different panel of the

Michigan Court of Appeals granted Dr. Schornstein leave to

appeal. By Order dated October 17, 1991 Dr. Schornstein’s case

was remanded with instructions relative to immunity of

witnesses. Dr. Schornstein and Respondents both renewed their

dispositive motions based on the ruling.

On January 10, 1992, the trial court granted Dr.

8

Schornstein’s motion and denied Respondents’ motion. During

oral argument on these motions, Petitioners defined their claim

as one in negligence. Section 1983 was not mentioned.

Also on January 10, 1992, Respondents filed a Motion in

Limine. (Appeal App. 46.) The Respondents protested that the

Petitioners had never disclosed the specific origins of

Respondents’ alleged duty to the Petitioners. Respondents

- challenged Petitioners to define any statutory or other duty. The

Petitioners’ February 18, 1992 Response to the Motion in Limine

did not even mention § 1983. (Appeal App. 47, at 6.) The

following day, Respondents filed a Reply to the Petitioners’

Response to the Motion in Limine reiterating that Respondents

had been unable to ascertain any legal basis for the duties

generally alleged by the Petitioners in the Second Amended

Complaint.

On February 21, 1992, the circuit court held a hearing on

the Respondents’ Motion in Limine. At the hearing, the

Petitioners’ counsel again asserted that Petitioners’ claim was

for negligence based on a breach of contractual duty pursuant

to service plans and a statutory duty pursuant to a yet unspecified

State statute:

THE COURT:

{[O)kay, anything else?

MR. SCHREIER [The Petitioners counsel]:

Only that we did not address duty because as the

updated service plans as well as case law as well as

Statutes make abundantly clear, the responsibility of

the social worker was to attempt to unify the family,

and all social workers including Miss Clayton, who

9

we focus our attack upon if you will, indicate that there

are a number of steps that we need to take with the

Martins. ...

MR. KEATING [Respondents’ counsel]:

[I]}t’s not up to the defendants, your Honor, to create a

duty for the plaintiffs in this case. We have perused

the statute. If I can review the statute, the statute says

that the purposes of the statute are to take such actions

as will be conducive to the child’s welfare and the best

interest of the state... .

(Appeal App. 49, at 14-16.)

MR. KEATING:

[T]hat’s going to be an issue of law, though, Judge.

Duty is an issue of law.

THE COURT:

I’ve got that, Counsel. And until somebody gives me

the Jury instructions which should include the statutes,

I can’t rule on that and I’m not going to. .. .

(Appeal App. 49, at 22.)

Respondents submitted a proposed order relating to the

court's ruling and Petitioners objected. On March 24, 1992, the

trial court held a hearing to resolve objections to the order, decide

jury instructions, and settle pre-trial order disputes. As promised

in February, the court revisited the issue of Respondents’ alleged

duty to the Petitioners. Petitioners’ counsel unequivocally stated

that Petitioners claim sounded only in ordinary negligence

10

arising from violation of the Child Protection Law (Mich. Comp.

Laws § 722.628) and the CAS and DSS service manuals. Section

1983 was not mentioned. (Appeal App. 54, at 7-8.)

The trial court then ruled that there was no statutory or

contractual duty owed the Petitioners and that the only cause of

action remaining was ordinary negligence. Petitioners contested

only the nature and extent of the negligence duty, but again

mentioned nothing about § 1983. (Appeal App. 54.)

The court next focused on which witnesses would be

testifying concerning the issue of the sole duty the court saw as

remaining to the Petitioners, i.e., ordinary care under common

law negligence. Respondents’ counsel sought a recess to consider

the court’s request:

MR. KEATING:

[Mjay I briefly have time to think about it? The

complaint does not allege ordinary care duties arising

from common law. It alleges only a breach of statute.

THE COURT:

I don’t have the complaint with me anymore. I have

seen it in its third incarnation.

(Appeal App. 54, at 20-22.) (emphasis added).

After considerable discussion on the record, the court

became increasingly convinced that in addition to the common

law negligence ciaim, Petitioners might be attempting to state a

claim in professional negligence. Michigan court rules relating

to professional negligence were then addressed:

1]

THE COURT:

[CJounsels, why isn’t that a claim filed under 3.001,

professional negligence. Nobody’s asked for 3.001.

So I'm fascinated. If, in fact, this is a duty imposed

upon a professional based upon the standard of care,

and a pleading of that, by the way, which we never

had.

(Appeal App. 54, at 23-26.)

After lengthy colloquy, the court concluded no common

law negligence duty could be gleaned from the Complaint, and

that professional negligence was not alleged. The court

adjourned the proceedings indicating that an order of dismissal

would likely follow. Section 1983 was not mentioned. (Appeal

App. 54, at 26.)

By written order entered April 29, 1992, the trial court

ordered summary disposition. The court ruled that: (1) the

Petitioners had not presented a statute upon which a negligence

claim could be predicated; (2) the Petitioners did not plead or

give notice of a claim of professional negligence; (3) the

Petitioners had no standing to enforce a contractual claim: and

(4) an amendment to the Complaint at this time would severely

prejudice the defendants. Section 1983 was never mentioned.

D. Proceedings Before the Michigan Court of Appeals

The Petitioners appealed the April 24, 1992 Order Granting

Summary Disposition to the Michigan Court of Appeals claiming

various procedural infirmities generally relating to their claim

that negligence and/or malpractice had been alleged throughout

the proceedings. On a substantive level, Petitioners urged only

that summary disposition was improper because there was a state

12

statute upon which the Respondents were arguably liable and

because the Petitioners had stated a valid professional

malpractice claim.

While a cross-appeal filed by Respondents urged that

Respondents were entitled to absolute quasi-judicial immunity

as a defense to any common law claim, and cited some federal

cases as persuasive authority, (Add. B), Petitioners’ brief on

appeal cited no federal cases under 42 U.S.C. § 1983. In fact,

Petitioners’ brief did not make reference to any federal authority

at all. (Add. A, at ii.)

E. The Michigan Court of Appeals Decision

]. The Initial Decision

On January 12, 1996, the Michigan Court of Appeals held

that under state law, Respondents were entitled to absolute quasi-

judicial immunity in defending Petitioners’ common law claim.

Accordingly, the court did not reach the only issues raised in

Petitioners’ appeal which concerned whether malpractice or

statutory negligence claims had been properly raised below.

Martin v. Children’s Aid Soc’y, 215 Mich. App. 88, 95, n.3, 544

N.W. 2d 651, 654, n.3 (1996). The majority, as well as the

dissent, took note of the circumstance that Petitioners had not

alleged a cause of action against Respondents under 42 U.S.C.

§ 1983. Martin, 215 Mich. App. at 96, n.5, 544 N.W. 2d at 655,

n.5

2. The Rehearing

On February 2, 1996, Petitioners filed a Motion for

Rehearing in the Michigan Court of Appeals, contending a 42

U.S.C. § 1983 claim had been asserted against Respondents all

along and that federal law mandated that social workers are not

entitled to absolute immunity.

ON AE AO EE A A OE Te TEE | TI I A Be ETI I EA OO CO i mE a I ye RO TN LTC ECCT I CG a TN RN A I I RE Ne ee

13

Respondents urged that § 1983 was never alleged against .

any CAS Defendants, and that to the extent any such action was

ever pled, it was waived in the course of the litigation. On March

29, 1996, the court of appeals granted rehearing, and the majority

opinion was revised as follows: Footnote one was revised to

read:

The DSS defendants may also be protected by judicial

immunity as discussed in part II of this opinion.

However, because we conclude in this part that the

DSS defendants were protected from liability for other

reasons, it is unnecessary to consider whether they

were also protected by judicial immunity.

Footnote four was revised to make the following finding:

We find the appellate court precedents cited hereafter

to be compelling notwithstanding concerns raised by

Justice Thomas regarding social worker immunity in

his dissenting opinion in Hoffman v Harris, 511 US

—_; 114 S Ct 1631; 128 L Ed 2d 354, 355-356 (1994)

(Thomas, J., dissenting). We do not believe that the

Hoffman dissent provides sufficient authority to

conclude that the federal precedents we rely upon, all

of which involved § 1983 claims, were wrongly

decided. Further, Justice Thomas’ concerns only apply

to immunity afforded to social worker against § 1983

claims. Jn the instant case, we conclude that plaintiffs

did not allege § 1983 claims against the CAS

defendants and, if the pleadings could be interpreted

to conclude otherwise, any § 1983 claims against the

CAS defendants were waived and abandoned following

the dismissal of the DSS defendants.

(Michigan Court of Appeals March 29, 1996 Order on Rehearing,

App. 1.) (emphasis added).

14

F. Proceedings Before the Michigan Supreme Court

The Petitioners subsequently sought leave to appeal the

January 12, 1996 Michigan Court of Appeals opinion to the

Michigan Supreme Court. In their application, the Petitioners

challenged social worker immunity in a 42 U.S.C. § 1983 action

and in a state law tort claim, but did not otherwise address the

lengthy record described, supra. The Petitioners neither

challenged nor appealed from the March 29, 1996 Order.

On April 1, 1997, the Michigan Supreme Court denied

Petitioners’ Application for Leave to Appeal stating:

We note that the Court of Appeals majority described

its decision as being limited to the facts of this case,

“in which the close oversight of the social worker’s

placement recommendations by the probate court is

especially noteworthy.”

Martin v. Zak, 562 N.W. 2d 782 (1997). Motion for

reconsideration was denied on June 30, 1997. Martin v. Zak,

562 N.W. 2d 244 (1997).

REASONS FOR DENYING THE WRIT

I.

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DISMISSED FOR WANT OF

JURISDICTION.

Petitioners contend that they brought a 42 U.S.C. § 1983

claim against the Respondents but that the Michigan Court of

Appeals determined “without elaboration” that a § 1983 claim

was not alleged. Both assertions are entirely false and based

upon a plain misreading of the record below.

ee Se

15

It can not be seriously claimed that a § 1983 action was

raised or pursued against any CAS Defendant. Respondents fully

briefed this position, and it was adopted by the Michigan Court

of Appeals on March 29, 1996. In their Petition, the Petitioners

do not even mention the March 29, 1996 Order and virtually

ignore the fact that a § 1983 claim was never raised against the

CAS Defendants, just as they ignored the issue in the courts

below even as it was briefed by Respondents and addressed by

the courts.

A. A Claim Under 42 U.S.C. § 1983 was Never Made

1. The Circuit Court

a. The Pleadings Applicable to CAS did not Contain a

42 U.S.C. § 1983 Claim

Only one of the two cases on appeal before this Court

contains a § 1983 claim at all. The 1989 Second Amended

Complaint attempts to assert a civil rights claim the DSS

Defendants only. This language is quoted extensively at pages

six and seven of the Petition. That Complaint does not raise a

§ 1983 claim against CAS.'

1. Paragraph 51 of the Petitioners’ Second Amended Complaint in

the 1989 case expressly limits the allegations of Count III, which makes

the § 1983 claim, to “Defendants GREEN, SWIEHART, FENISON and

HART, individually.” Paragraph 6 of the Second Amended Complaint

defines these individuals as the “DSS Defendants.” The conspiracy

language in paragraph 51 merely defines the actions of the DSS

Defendants and does not state a cause of action against the parties who

are not named in capital letters. The fact that two of the non-DSS parties

named (Children’s Aid Society and Dr. Schornstein) are not even

Defendants in the 1989 case shows that the names supplied are intended

merely to be descriptive of the alleged conspiracy by the DSS Defendants.

The Second Amended Complaint in the 1988 case. (Appeal App. 18),

(Cont'd)

16

b. Waiver and Abandonment

The Michigan Court of Appeals held on March 29, 1996

that to the extent that the Petitioners may actually have pled a

valid 42 U.S.C. § 1983 cause of action against one or more of

the Respondents, such a claim was waived and abandoned during

the subsequent course of the litigation. (App. A, n.4.) That ruling

is as totally supported by the record as it is ignored by the

Petitioners.

Particularly telling is the conduct of Petitioners on March

24, 1992 — just before the scheduled trial — when the

Petitioners were required by the Court to present the legal basis

for their claims under penalty of dismissal. No § 1983 claim is

made by the Petitioners in their portion of the Joint Pre-Trial

Statement, filed on or about March 24, 1992. No jury instruction

relating to a § 1983 claim was proposed. In their argument before

the court of appeals that their complaints stated a claim upon

which relief could be granted, the Petitioners stood by their

March 24, 1992 assertions that their pleadings alleged only a

state statutory violation and social worker malpractice. (See

Plaintiffs-Appellants’ Brief on Appeal, Add. A, at 22-23.)

The issue of the nature of the legal basis of the duty which

the Petitioners claimed the Defendants owed them was a subject

of constant litigation in this case. See discussion of civil

proceedings, supra. Each of the amendments to all of the

complaints in this case were the result of either a concession by

the Petitioners’ attorney, or a ruling by the trial court, that the

complaint in force failed to properly or clearly allege the duty

(Cont'd)

which is the operative pleading relating to the Defendants CAS, Stoval,

and Clayton, contains no § 1983 claim, a particularly significant fact

since, according to Petitioners, Defendant Clayton always was the person

“who we focus our attack upon if you will.” (Appeal App. 49, at 14.)

‘

4

Mabe eae a raea it a cee

17

claimed by the Petitioners. Still, the theories claimed by the

Petitioners were constantly changing. For example, by February,

1992, the chimerical duty had evolved into unspecified

contractual duties arising from “updated service plans” and a

negligence action arising from breach of duties required by an

unspecified statute. (Appeal App. 49, at 14-16.) See discussion,

supra at p.9.

As discussed previously, on February 21, 1992, the trial

court and the parties agreed that the issue of the duties claimed

by the Petitioners would be finally resolved at the pre-trial in

the context of the proposed jury instructions. (Appeal App. 49,

at 14-16, 23.)

Subsequently, at the March 24, 1992 pretrial hearing, the

Petitioners stipulated that their only cause of action was in

ordinary negligence. The Petitioners also conceded that the

duties, whose alleged breach gave rise to the negligence action,

were created by the Michigan Child Protection Law and the CAS

and DSS manuals. Section 1983 was not mentioned.

This stipulation and concession was made to the trial court

on the record, in unequivocal terms:

THE COURT:

The next issue I believe that comes to me has to do

with what are the Jury instructions that would be given

to the trier of fact before the commencement of proofs.

It is agreed, I believe by the parties, that this is a case

which is being posed as a case of ordinary negligence;

is that correct?

MR. SCHRIER:

Yes.

18

THE COURT:

Plaintiff asserts that this duty of ordinary care arises

in part from statutes; is that correct, sir?

MR. SCHRIER:

Yes, it is.

THE COURT:

And would you speak to those statutes upon which

you believe your negligence claim is based?

MR. SCHREIR:

I’m speaking to a statute that requires by its express

terms the department of social services —

THE COURT:

The statute number for the record.

MR. SCHRIER:

As I was saying, the Plaintiffs rely at least in part or

every part upon the child protection law, in particular

the plaintiffs rely upon M.C.L. 722.628. That statute

by its terms appears to pertain specifically to the

department. It’s our understanding that the department

would refer to the Department of Social Services. . . .

It’s not just that, the statute that the plaintiffs rely upon,

but also the very terms of the Children’s Aid Society

placement manual and the Michigan Department of

19

Social Services manual that the plaintiffs rely upon

for finding that the defendants owed them a duty.

(Appeal App. 54, at 7-8.)

The above statement is consistent with the Pre-Trial

_ Statement submitted by the parties which only requests jury

instructions relating to a claim of ordinary negligence allegedly

arising out of the child protection statutes and updated service

plans. (Appeal App. 53, at 9-10.)

Under Michigan law, Petitioners were conclusively bound

by admissions at a pre-trial hearing. Joy Oil Co. v. Fruehauf

Trailer Co., 319 Mich. 277, 280, 29 N.W. 2d 691, 692 (1947).

A party is not only bound by his concession as to what the issues

remaining for trial are, but also by the issues he has eliminated

from the case. In Michigan, this waiver and elimination may

occur in an informal document such as a trial brief and precludes

subsequently raising the eliminated issues on appeal. Kast v.

Citizens Mut. Ins. Co., 125 Mich. App. 309, 312-13, 336 N.W.

2d 18, 20 (1983); Ass’n of Hebrew Teachers of Metro. Detroit v.

Jewish Welfare Fed’n of Detroit, 62 Mich. App. 54, 57-58, 233

N.W. 2d 184, 186 (1975).

Under Mich. Court Rule 2.401(C)(1)(a), the trial court and

the parties may simplify the issues in the case at the pre-trial

hearing. This procedure is intended to allow a judge to require

a far more specific statement of the issues to be litigated than

merely directing the amendment of pleadings. The pre-trial

controls the subsequent course of a case. Ministrelli Constr. Co.

v. Monroe County Road Comm'n, 153 Mich. App. 144, 149, 395

N.W. 2d 38, 40 (1986); Banaszewski v. Colman, 131 Mich. App.

92, 94-95, 345 N.W. 2d 647, 648-49 (1983); Ashley v. St. Joseph

Mercy Hosp. of Detroit, 14 Mich. App. 289, 165 N.W. 2d 429

(1968). The issues were set forth in the written Pre-Trial

20

Statement presented to the trial judge and unequivocally stated

on the record by the Petitioners’ counsel. Such an agreement at

pre-trial supercedes even those issues that were actually pled in

the Complaint.

2. The Court of Appeals

In their Plaintiffs-Appellants’ Brief on Appeal, (Add. A),

Petitioners primarily contended that “[t}he Complaint Stated A

Claim Upon Which Relief Can Be Granted.” The brief focused

on Petitioners’ claim that the Second Amended Complaint

contains a malpractice claim. No claim of a 42 U.S.C. § 1983

cause of action was mentioned.

In Michigan and elsewhere, the appellate tribunal generally

declines to consider any issues which were not preserved for

appeal by being raised prior to the court of appeals. Long v.

Pettinato, 394 Mich. 343, 349, 230 N.W. 2d 550, 553 (1975).

The issue which the Petitioners seek to raise before this Court

was not only waived or abandoned in the trial court to the extent

it may ever have been asserted against Respondents, but the issue

was also waived in the claim of appeal process and most

subsequent proceedings before the Michigan Court of Appeals.

Joplin v. University of Mich. Bd. of Regents, 184 Mich. App.

497, 498-99, 459 N.W. 2d 70, 71 (1990).

B. Petitioners Have Not Appealed or Addressed Essential

Portions of the Court of Appeals Decision on the 42 U.S.C.

§ 1983 Issue.

Petitioners have postured the issues in their Petition as if

the Michigan Court of Appeals had denied the Petitioners’

Motion for Rehearing. In fact, the March 29, 1996 Order of the

Michigan Court of Appeals granting rehearing, (App. 1), is

neither referenced, attached, nor otherwise addressed by

21

Petitioners. However, as previously discussed, the court of

appeals granted the rehearing and made two central findings

relating to the Petitioners’ purported § 1983 claim. First, the

court ruled that the Petitioners did not plead a § 1983 claim

against Respondents. Second, the court ruled that to the extent

the pleadings may be interpreted to assert such a claim, the claim

was waived and abandoned by the Petitioners. This decision

followed extensive briefing of the issue by Respondents, and

was hardly “without elaboration” as now claimed by Petitioners.

The entire Petition presupposes that an action under § 1983

exists in this case. Petitioners treat Respondents’ briefs and two

specific findings by the court of appeals directly addressing this

issue as if they are non-existent.

The two critical findings by the Michigan Court of Appeals

on rehearing were not appealed to the Michigan Supreme Court,

nor were the issues of whether a § 1983 claim was pled or

subsequently waived presented in Petitioners’ subsequent

application to that court.

C. The Jurisdictional Requirements of 28 U.S.C. § 1257 Are

Unsatisfied.

28 U.S.C. § 1257(a) states:

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United

States is drawn in question or where the validity of a

statute of any State is drawn in question on the ground

of its being repugnant to the Constitution, treaties, or

laws of the United States, or where any title, right,

privilege, or immunity is specially set up or claimed

22

under the Constitution or the treaties or statutes of, or

any commission held or authority exercised under, the

United States.

In reviewing the judgments of state courts under the

jurisdictional grant of § 1257, this Court has, with very rare

exception, refused to consider petitioner’s claims not raised or

addressed below. Yee v. Escondido, 503 U.S. 519, 533, 112 S.

Ct. 1522, 1531, 118 L. Ed. 2d 153 (1992); Adams v. Robertson,

117 S. Ct. 1028, 1029, 137 L. Ed. 2d 203 (1997).

This is a case where Petitioners did not even attempt to

appeal the March 29, 1996 Order of the Michigan Court of

Appeals, which expressly held that:

[P]laintiffs did not allege § 1983 claims against the

CAS Defendants and, if the pleadings could be

interpreted to conclude otherwise, any § 1983 claims

against the CAS defendants were waived and

abandoned following dismissal of the DSS defendants.

ee

(App. 1.)

[When] the highest state court has failed to pass upon

a federal question, it will be assumed that the omission

was due to want of proper presentation in the state

courts, unless the aggrieved party in this Court can

show the contrary.

Board of Directors of Rotary Int'l v. Rotary Club of Duarte,

481 U.S. 537, 550, 107 S. Ct. 1940, 1948, 95 L. Ed. 2d 474

(1987). The aggrieved party bears the burden of defeating this

assumption. Webb v. Webb, 451 U.S. 493, 501, 101 S. Ct. 1889,

1894, 68 L. Ed. 2d 392 (1981).

Fy

bg

23

We have described in different ways how a petitioner

may satisfy this requirement. See Street v. New York,

394 U.S. 576, 583-85, 89 S.Ct. 1354, 1361-2, 22

L.Ed.2d 392 (1969). In some cases, we have focused

on the need for petitioners either to establish that the

claim was raised “at the time and in the manner

required by the state law,” Bankers Life & Casualty

Co. v. Crenshaw, 486 U.S. 71, 77-78, 108 S.Ct. 1645,

1650, 100 L.Ed.2d 62 (1988) (quoting Webb, supra, at

501, 101 S.Ct., at 1894), see, e.g., Exxon Corp. v.

Eagerton, 462 U.S. 176, 181, n. 3, 103 S.Ct. 2296,

2301, n.3, 76 L.Ed.2d 497 (1983): Beck v. Washington,

369 U.S. 541, 549-54, 82 S.Ct. 955, 959-63, 8 L.Ed.2d

98 (1962), or to persuade us that the state procedural

requirements could not serve as an independent and

adequate state law ground for the state court’s

judgment, see, e.g., Hathorn v. Lovorn, 457 U.S. 255,

262-265, 102 S.Ct. 2421, 2426-28, 72 L.Ed.2d 824

(1982). In other cases, we have described a petitioner’s

burden as involving the need to demonstrate that it

presented the particular claim at issue here with “fair

precision and in due time,” New York ex rel. Bryant v.

Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed.

184 (1928): Prune Yard Shopping Center v. Robins, 447

U.S. 74, 85, n. 9, 100 S.Ct. 2035, 2043, n. 9, 64 L.Ed.2d

741 (1980). See generally, 16B C. Wright, A. Miller,

& E. Cooper, Federal Practice and Procedure § 4022,

pp. 322-339 (1996).

Adams, 117 S. Ct. at 1029-30.

Similar to this Court’s determination in Adams, however

the requirements are phrased in the instant case, Petitioners have

failed to satisfy them. Petitioners have done nothing to

demonstrate that they complied with the applicable state rules

24

for raising their § 1983 claim before the trial court, the Michigan

Court of Appeals, or even the Michigan Supreme Court. Under

such circumstances, they have totally failed to show why the

failure to satisfy the numerous rules involved would not be an

adequate and independent ground for the state court to disregard

that claim. See Adams, 117 S. Ct. at 1030.

REVIEW BY THIS COURT WOULD RESOLVE NO

IMPORTANT QUESTION OF FEDERAL LAW.

Sup. Ct. R. 10 provides in pertinent part:

A petition for a writ of certiorari will be granted only

for compelling reasons. The following, although

neither controlling nor fully measuring the Court's

discretion, indicate the character of the reasons the

Court considers: . . . (b) a state court of last resort has

decided an important federal question in a way that

conflicts with the decision of another state court of

last resort or of a United States court of appeals; (c) a

State court or a United States court of appeals has

decided an important question of federal law that has

not been, but should be, settled by this Court, or has

decided an important federal question in a way that

conflicts with relevant decisions of this Court.

A. Judicial Immunity Under Michigan Law Does Not

Constitute An Important Question of Federal Law.

1. Decision Under State Law

Because Petitioners essentially pursued a negligence action

through the trial courts, because the only issues properly raised

25

by the Petitioners on appeal related to whether proper negligence

or malpractice claims had been brought, and because any

immunity discussion in this case pertains only to state common

law immunity from those actions, there is no important federal

law in question in this case. Even the portion of the court of

appeals opinion most Supportive of Petitioners’ position

specifically disavows the possibility that any federal issue might

exist in this case. See Martin v. Children’s Soc’y, 215 Mich.

App. 88, 112, n.12, 544 N.W. 2d 662-63, n.12 (1996) (White,

J., concurring in part and dissenting in part) (discussing the

distinction).

It is undisputed that numerous citations to federal civil rights

cases are found within the record of the circuit court, briefs

submitted to the Michigan Court of Appeals, decision of the

court of appeals, and briefs submitted to the Michigan Supreme

Court.

Respondents have cited federal civil rights cases throughout

this litigation, but always as only persuasive authority on the

issue of absolute quasi-judicial immunity for social workers in

the context of a state negligence claim. Recognizing that federal

civil rights cases on the immunity issue were not binding on

Michigan courts in this litigation, Respondents have indicated

that the federal law in accord with Michigan law could be used

by the Michigan courts as a guidance for application of state

law. (See Respondents’ Cross- Appellants’ Brief to the Michigan

Court of Appeals, Add. B, at 15-16, 19-20.)

Consistent with this, Respondents have contested cases such

as Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d

271 (1986), on the basis that the case only provided persuasive

authority, while the Michigan cases directly on point cited by

Respondents provided mandatory authority. (See Defendants’

Reply Brief to Plaintiffs’ Response to Defendants’ Motion in

26

Limine, Appeal App. 48, at 3-4; Cross-Appellants’ Brief, Add.

B, at 24.)

The Michigan Court of Appeals applied the same approach,

citing federal cases only as persuasive authority where they

found “no Michigan precedent regarding this question.” Martin

v. Children’s Aid Soc’y, 215 Mich. App. 88, 97, 544 N.W. 2d

651, 655 (1996). In fact, the footnote to the federal civil rights

cases cited by the court of appeals states that these cases are

persuasive despite being civil rights cases. Martin, 215 Mich.

App. at 96, n.5, 544 N.W. 2d at 655, n.5.

The court of appeals dissenting opinion illustrates the point.

The dissent distinguished federal cases involving 42 U.S.C.

§ 1983 from the Petitioners’ case on the ground that Petitioners’

case involves state, not federal law. Id. at 112-13, 544 N.W. 2d

at 662-63 (White, J., concurring in part and dissenting in part).

Obviously, the dissent did not realize that Petitioners would soon

claim their case was a § 1983 case after all.

Petitioners’ arguments regarding the appropriateness of

immunity for social workers is specifically confined to the

context of a 42 U.S.C. § 1983 claim itself. However, as should

now be apparent, § 1983 was never an issue in this case.

Therefore, Petitioners essentially seek this Court’s review of a

state court’s decision made under state law.

2. This Case was Decided on Specific Facts Unrelated to

the Blanket Immunity Doctrine

The state law immunity issues and the rulings of the

Michigan state courts in relation to those issues were carefully

related to the specific facts of this case. The specific facts of

this case are particularly unsuitable to test the Petitioners’

question presented:

27

Whether foster care workers employed by private

corporation under contract with the State of Michigan

to provide services under state law to parents and

children and foster care to children alleged in a Probate

Court proceeding to have been abused, are absolutely

immune from a suit for damages under 42 U.S.C.

§ 1983 with respect to all their activities.

(Brief for Petitioners, at i.) (emphasis added).

Petitioners seek to challenge the line of authority

exemplified by Kurzawa v. Mueller. 732 F.2d 1456 (6th Cir.

1984) and Coverdell y. Department of Social Servs., 834 F.2d

758 (9th Cir. 1987) to the extent such § 1983 cases provide

Respondents with what Petitioners term as “an all-inclusive

blanket absolute immunity” for social workers. Petitioners even

Suggest the Michigan Court of Appeals found such “blanket

absolute immunity” to exist in this case. The Michigan Court of

Appeals decision itself expressly refutes this contention. The

majority specifically stated:

[While Kurzawa has been described as granting

“blanket absolute immunity” to social workers, as the

dissent notes, our decision is not properly so described.

It is limited to the facts of this case, in which the close

oversight of the social workers placement

recommendations by the Probate Court is especially

noteworthy.

Martin, 215 Mich. App. 88, 96, 544 N.W. 2d 651, 655 (1996)

(emphasis added).

Hence, the court of appeals majority expressly indicated

that its decision to grant immunity arose out of Respondents’

Status “in operating as an arm of the probate court to protect

28

abused. children.” Martin, 215 Mich. App. at 97-98, 544 N.W.

2d at 655-56. This reference to the highly supervised nature of

Respondents’ activities was made just as the court of appeals

limited its holding, rejecting the very proposition Petitioners

now wish to have reviewed.

In effect, the state court’s determination reflects that “this

case has a central, unbending reality which the court has

requested to consider — Plaintiff's alleged damages flow from

the actions of the Probate Court.” (Brief in Support of

Defendants’ Motion for Summary Disposition, Appeal App. 42,

at 5).

In the opinion denying leave to appeal from the Michigan

Court of Appeals, the Michigan Supreme Court also noted:

[T}hat the Court of Appeals majority described its

decision as being limited to the facts of this case “in

which the close oversight of the social worker's

placement recommendations by the probate court is

especially noteworthy.”

Martin v. Zak, 562 N.W. 2d 782 (1997).

Hence, and as reflected at every stage of the litigation below,

this case could never present a proper basis for review of any

federal blanket immunity doctrine. To the contrary, the fact that

the Respondents did exactly what they were ordered to do by

the probate court has been noted at each stage of the litigation,

and consistently noted by each state appellate court even while

refusing to extend Michigan’s common law immunity to include

blanket immunity.

OE OT

29

3. This Court has Declined to Review the Issue Whether

Social Workers are Immune from 42 U.S.C. § 1983 Liability.

Even if the many attempts delineated above by Petitioners

to recast both the factual and legal underpinnings of this case as

a § 1983 claim were successful, recent decisions of this Court

would suggest that the hypothetical case thereby created would

not be appropriate for review by this Court. As Petitioners note,

similar Petitions for Certiorari have been denied in the recent

past. See, e.g., Hoffman vy. Harris, 511 U.S. 1060, 114 S. Ct.

1631, 128 L. Ed. 2d 354 (1994); Doe v. Bennett, 510 U.S. } 164,

114 S. Ct. 1189, 127 L. Ed. 2d 539 (1994).

CONCLUSION AND RELIEF REQUESTED

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

THOMAS H. KEATING

Counsel of Record

VALERIE H. MOCK

REUBEN M. WATERMAN, JR.

JENKINS & KEATING

Attorneys for Respondents CAS

18720 Mack Avenue

Suite 110

Grosse Pointe Farms, MI 48236

(313) 884-4200

SAS A. EEO TM CNTR a ERS. asl ieee na isa ial

PE et eee tai he 5

=

+

Bi

Es

a

4

2

%

|

*]

la

APPENDIX A — ORDER OF THE COURT OF APPEALS

FOR THE STATE OF MICHIGAN

DATED MARCH 239, 1996

Court of Appeals, State of Michigan

Michael Martin

Vv

Warren Swiehart

Docket # 140360, 152486, 152489

L.C. # 88-805900, 89-905474-CZ, 89-905475

Helene N. White

Presiding Judge

Richard A. Bandstra

Walter P. Cynar

Judges

ORDER

The Court orders that the motion for rehearing is granted

and that footnotes | and 4 of the majority opinion issued January

12, 1996 are revised to read as follows:

1. The DSS defendants may also be protected by judicial

immunity as discussed in part II of this opinion. However,

because we conclude in this part that the DSS defendants were

protected from liability for other reasons, it is unnecessary to

consider whether they were also protected by judicial immunity.

2a

Appendix A

4. We find the appellate court precedents cited hereafter to be

compelling notwithstanding concerns raised by Justice Thomas

regarding social worker immunity in his dissenting opinion in

Hoffman v. Harris, 511 US __; 114 S Ct 1631; 128 L Ed 2d 354,

355-356 (1994) (Thomas, J., dissenting). We do not believe that

the Hoffman dissent provides sufficient authority to conclude

that the federal precedents we rely upon, all of which involved

§ 1983 claims, were wrongly decided. Further, Justice Thomas’

concerns only apply to immunity afforded to social workers

against § 1983 claims. In the instant case, we conclude that

plaintiffs did not allege § 1983 claims against the CAS

defendants and, if the pleadings could be interpreted to conclude

otherwise, any § 1983 claims against the CAS defendants were

waived and abandoned following the dismissal of the DSS

defendants.

A true copy entered and certified by Ella Williams, Chief Clerk

on

MAR 29 1996 s/ Ella Williams

Date Chief Clerk

{seal}

STATE OF MICHIGAN

COURT OF APPEALS

am re

bial