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### STATE OF MICHIGAN

COURT OF APPEALS

CHASE STRICKLAND,

Plaintiff-Appellant, UNPUBLISHED April 27, 2017

v No. 332446 Court of Claims STATE OF MICHIGAN, LC No. 15-000242-MM

Defendant-Appellee.

Before: B ECKERING , P.J., and M ARKEY and S HAPIRO , JJ.

P ER C URIAM

. Plaintiff, Chase Strickland, appeals by right a February 26, 2 016 final order of the Court of Claims granting summary disposition to defendant, State of M ichigan. We affirm.

I. PERTINENT FACTS

This case arises in the context of plaintiff’s attempts to obt ain unsupervised parenting time with his minor child. Plaintiff’s parenting time has been supervised since 2011. He filed a motion for unsupervised parenting time in the Kent County Circu it Court on April 7, 2015. Judge Paul Denenfeld heard the motion on or around April 25, 20 15, and subsequently denied it. Plaintiff filed an unsuccessful d elayed application for leave t o appeal the court’s order in this Court. Billie Jo DeBoer v Charles Strickland , unpublished order of the Court of Appeals, entered September 30, 2015 (Docket No. 327867). He then filed an application for leave to appeal our decision in the Mic higan Supreme Court. See DeBoer v Strickland , 498 Mich 952; 872 NW2d 482 (2015) (denying plaintiff’s application). With hi s application still pending in the Supreme Court, plaintiff filed another motion for unsupervised parenting time in the circuit court, which Judge Denenfeld h eard and subsequently denied in a n order issued October 6, 2015.

Plaintiff initiated the instant case on October 22, 2015, by f iling a complaint in the Court of Claims, 1 the gist of which plainti ff summarized as follows:

1 On March 10, 2017, plaintiff filed an unsuccessful motion with this Court to allow him to amend his complaint in the Court of Claims. Chase Strickland v State of Michigan , unpublished order of the Court of Appeals , entered March 21, 2017 (Docket N o. 332446).-2- Circuit Court Judge Denenfeld has displayed a severe abuse of discretion, failed to comply with due process of law as it pertains to a fi tness hearing requirement and the clear and convincing threshold that would a llow such extreme and prolonged government i ntrusion; and has both slande red and defamed the Plaintiff’s character, based on the judges [sic] pe rsonal perception of the Plaintiff’s personality and character, which is 100% subjec tive, and discriminatory, and a direct infringement of Art I, § 2 of the Michigan Constitution of 1963.

After providing examples of Judge Denenfeld’s alleged slander and defamation of him, plaintiff stated his theories of liability against the state as follows:

The Plaintiff is sueing [sic] th e State of Michigan for person al injury due to Judge Denenfeld’s abuse of discresion [sic] and bias judgeme nts [sic], that led to severe Constitutional infringements that resulted in depriva tion of Parental Rights, and irreparable harm to the relationship of father and child due to the excessive amount of time during t he Plaintiffs daughter’s childhood.

The Plaintiff is also sueing [sic] the State of Michigan for p unitive damages due to Judge Denenfeld’s misconduct, slander and defama tion of character, both on the recor d on 4/25/15 and in his written opi nion on 10/6/15

. . . . Defendant moved for summary disposition pursuant to MCR 2.116( C)(7) (immunity granted by law) on the ground that plaintiff’s complaint did no t plead a claim within one of the statutorily enumerated exceptions to the state’s sovereign immu nity. In a thoughtful and wellwritten opinion, the Court of Claims provided three grounds for granting defendant’s motion for summary disposition. First, perceiving plaintiff’s complaint a s a collateral attack on the circuit court’s parenting-time orders, th e court explained that the pro per procedure for challenging the order was to file a motion for r ehearing of the order in the ci rcuit court, MCR 2.119(F), or pursue appellate remedies in this Court. Accordingly, the court concl uded that it was “without jurisdiction to reverse the fi ndings of the Kent County Circuit Court.” MCR 2.116(C)(7). Next, the court dismissed plaintiff’s complaint pursuant to MCR 2.116 (C)(8), reasoning that, to the extent that plaintiff had attempted to plead a constitutional t ort, summary disposition was appropriate because plaintiff had failed to allege a state cust om or policy that mandated action in violation of the state constitution, an element necessary to es tablish a constitutional tort. Finally, the court found that, to the ext ent that plaintiff had alleged or implied that the state is directly or vicariously liable for Judge Denen feld’s allegedly defamatory s tatements, such claims were barred by governmental immunity, MCR 2.116(C)(7). Subsequent t o entry of the court’s order dismissing his complaint, plain tiff filed this timely appeal.

II. ANALYSIS

A. STANDARD OF REVIEW

The Court reviews de novo a trial court’s ruling on a motion f or summary disposition. Kendricks v Rehfield , 270 Mich App 679, 681; 716 NW2d 623 (2006). “A motion for su mmary disposition under MCR 2.116(C)(8) te sts the legal sufficiency o f a claim by the pleadings alone.”-3- Averill v Dauterman , 284 Mich App 18, 21; 772 NW2d 797 (2009) (quotation marks and citation omitted). We review a trial court’s decision to dismiss a comp laint under MCR 2.116(C)(8) “to determine whether the claim is so clearly unenforceable as a ma tter of law that no factual development could establish the claim and justify recovery.” Id . (quotation marks and citation omitted). We accept as true all factual allegations supporting the claim, and any reasonable inference or conclusions drawn from those facts. Id . Likewise, the applicability of governmental immunity is a question of law that we review de no vo. Co Rd Ass’n of Mich v Governor , 287 Mich App 95, 118; 782 NW2d 784 (2010). When reviewing a grant of summary disposition based on a finding that governmental immunity bars the claim, MCR 2.116(C)(7), we consider all documentary evidence submitted by the parties, acc epting all well-pleaded allegations as true and construing them most favorably to the n on-moving party. Summers v City of Detroit , 206 Mich App 46, 48; 520 NW2d 356 (1994). “To survive a moti on for summary disposition, the plaintiff must a llege facts that justify the a pplication of an exception to governmental immunity.” Id

.

B. CONSTITUTIONAL TORT

Plaintiff first contends that he properly pled the elements ne cessary to sustain a constitutional tort claim against the state and, therefore, tha t the Court of Claims erred in dismissing his claim pursuant to MCR 2.116(C)(8). We disagree.

Governmental immunity is not available in a state court action alleging that a state governmental agency, by custom or policy, violated a right conf erred by the Michigan Constitution. Smith v Dep’t of Public Health , 428 Mich 540, 544, 641; 410 NW2d 749 (1987) (B OYLE , J), aff’d sub nom Will v Mich Dep’t of State Police , 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989). The constitutional violation must arise from a custom or policy of the agency rather than from an unauthorized act of an employee. See Smith , 428 Mich at 642-643; Reid v State of Michigan , 239 Mich App 621, 629; 609 NW 2d 215 (2000) (“The state will b e liable for a violation of the state constitution only in cases where a sta te custom or policy mandated the official’s or employee’s actions.).

Plaintiff misconstrues the requirement that a constitutional t ort claim against the state arise from a custom or policy of the state that mandates conduc t in violation of the state’s constitution. See Smith , 428 Mich at 642-643; Reid , 239 Mich App at 629. The “policy” and “custom” to which plaintiff refers are, respectively, the paren ting-time guidelines recommended by the State Court Administrativ e Office (SCAO), and United Sta tes Supreme Court decisions that, according to plaintiff, establish that “parents who have already established a bond with their child have a right to privacy (wi thout constant government intr usion) within their family life.” Thus, the gravamen of plaintiff’s constitutional tort argument is not that a state policy or custom required Judge Denenfeld to act in violation of the state’s con stitution, but that Judge Denenfeld’s decisions violated the state’s cons titution because they were inconsistent with policy and custom. Such allegations cannot sustain a constitutional t ort claim. See Smith , 428 Mich at 642-643; Reid , 239 Mich App at 629. Accordingly, we affirm dismissal of pla intiff’s constitutional tort claim pursuant to MCR 2.116(C)(8).-4- C. IMMUNITY

Plaintiff next contends that the Court of Claims erroneously d ismissed his claim because Judge Denenfeld’s conduct exposed the state to liability pursua nt to MCL 691.1407(2). We disagree.

MCL 691.1407(2) provides:

Except as otherwise provided in this section, and without rega rd to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on beh alf of a governmental agency, and each member of a board, council, commi ssion, or statutorily created task force of a governmental agency is immu ne from tort liability for an injury to a person or damage to property cause d by the officer, employee, or member while in the course of employment or servic e or caused by the volunteer while acting on behalf of a governmental agency i f all of the following are met:

(a) The officer, employee, member, or volunteer is acting or re asonably believes he or she is acting within the s cope of his or her authority.

(b) The governmental agency is engaged in the exercise or disch arge of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury o r damage.

Plaintiff’s claim that Judge Denenfeld’s allegedly slanderous and defamatory statements exposed the state to liabilitypursuant to MCL 691.1407(2) fail s because he overlooks the exception supplied by MCL 691.1407(5). It is well settled in M ichigan that statements made during the course of judicial p roceedings are absolutely privil eged. Couch v Schultz , 193 Mich App 292, 294; 483 NW2d 684 (1992). Further, if absolute privil ege applies, there can be no action for defamation. Id

. In the present case, plaintiff acknowledges that the comments of Judge Denenfeld that serve as the basis for plaintiff’s complaint occurred in the co ntext of a judicial hearing on plaintiff’s parenting-time motions, but argues that, because th ey were “lies” they were not within the scope of his authority. U nderlying plaintiff’s argument is the assumption that absolute judicial immunity is not absolute. Plaintiff cites no authorit y for his position, and we decline to “search for authority to sustain or reject [his] position.” Hover v Chrysler Corp , 209 Mich App 314, 319; 530 NW2d 96 (1994) (“A party may not leave it to this Court to search for authority to sustain or reject its position.”). We note, however, that abso lute judicial immunity that is not absolute would not serve the doc trine’s purpose of insulating “ judges from vexatious actions prosecuted by disgruntled litigants.” Forrester v White , 484 US 219, 225; 108 S Ct 538; 98 L Ed-5- 2d 555 (1988). 2 Nor would it serve the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and witho ut fear of consequences,” Pierson v Ray , 386 US 547, 554; 87 S Ct 1213; 18 L Ed 2d 288 (1967). Accord ingly, to the extent that plaintiff bases his claim against the state on judicial comment s that cannot give rise to liability, plaintiff’s claim against the state must fail. Further, even i f the judge’s comments made during the course of the April hearing were not cloaked by absolute ju dicial immunity, the state would nevertheless be immune from claims based on those comments. To the extent that slander and defamation are intentional torts, “[t]here is no ‘intentional t ort’ exception to governmental immunity.” Smith , 428 Mich at 544. Thus, because plaintiff has not pled in avo idance of governmental immunity, his claim against the state must fail. Genesee Co Drain Comm’r , 309 Mich App 317, 328; 869 NW2d 635 (2015) (“[I]f a governmental ag ency commits an intentional tort during the exercise or di scharge of a governmental functio n, the governmental agency is immune from tort liability.”).

D. JURY TRIAL AND DUE PROCESS

Plaintiff also contends that he is entitled to a jury trial on his complaint, and that the trial court violated his right to due process by failing to provide h im notice “of the sessions of the Court of Claims that resulted i n the orders now appealed from.” These claims are without merit.

Plaintiff does not have an absol ute right to a jury trial in a civil action under Michigan’s Constitution because such right is permissive and not absolute. Davis v Chatman , 292 Mich App 603, 616; 808 NW2d 555 (2011), citing Const 1963, art 1, § 14. In addition, there is no fundamental right to a jury trial in the Court of Claims. See Freissler v State Hwy Comm , 53 Mich App 530, 535-536; 220 NW2d 141 (1974). 3 Further, as the preceding analysis of plaintiff’s claims has shown, his demand for a jury trial prove d irrelevant, as he lacked a factually disputed and legally su fficient claim to present to ajury.

Plaintiff also contends that the failure of the Court of Claim s to hold a hearing on defendant’s summary disposition motion violated his right to du e process by denying him the opportunity to be heard. It did no t. The fundamental require ments of procedural due process

2 This is not to say that plaintiff is without remedy. If the j udge based his ruling on factual inaccuracies, plaintiff’s remedy, as the Court of Claims pointe d out, is to file a motion for reconsideration in the circu it court, MCR 2.119(F), or to pursu e appellate remedies in this Court. Fieger v Cox , 274 Mich App 449, 459; 734 NW2d 602 (2007) (“[I]f a litigant wishes to challenge a ruling by a court, the appropriate remedy is to see k a rehearing of the decision or file an appeal.”); MCR 7.204 (filing an appeal by right); MCR 7.205 (application for leave to appeal). If plaintiff believes t he judge is not treating him “ fairly, with courtesy and respect,” Code of Judicial Conduct, Canon 3, plaintiff can file a request for investigation with the Judicial Tenure Commission, see MCR 9.207.

3 Although this panel is not bound by decisions issued prior to November 1, 1990, MCR 7.215(J)(1), they nevertheless can b e considered persuasive aut hority. See Superior Hotels, LLC v Mackinaw Twp , 282 Mich App 621, 641; 765 NW2d 31 (2009).-6- are notice and an opportunity to be heard by an impartial decis ion maker. Cummings v Wayne Co. , 210 Mich App 249, 253; 533 NW2d 13 (1995). In the present ca se, the Court of Claims record demonstrates that plaintiff had the opportunity to be he ard through his written pleading, his brief in opposition to defendant ’s motion for summary dispo sition, and a further brief in reply to defendant’s reply brief.

In addition, “MCR 2.119(E)(3) specifically authorizes a court, in its discretion, to dispense with or limit oral argument with regard to motions.” Fast Air, Inc , 235 Mich App 541, 550; 599 NW2d 489 (1999). This Court reviews such decisions fo r an abuse of discretion. See id . There is no abuse of discreti on where a court’s decision fal ls within the range of principled
outcomes. Macomb Co Dep’t of Human Services v Anderson , 304 Mich App 750, 754; 849 NW2d 408 (2014). In this case, nothing in the record indicates , and plaintiff has not argued, that the Court of Claims was not fully informed of the parties’ resp ective legal positions prior to granting defendant’s motion fo r summary disposition. In additi on, as analysis of the issues raised on appeal has shown, the legal infirmities of plaintiff’ s complaint are such that no hearing could have resuscitated it. Accordingly, the court did not abu se its discretion by rendering its decision without holding a hearing. See Fast Air, Inc , 235 Mich App at 550.

Finally, plaintiff evokes the federal Supremacy Clause, US Con st, art VI, § 2, as somehow operating to his advantage. The Supremacy Clause gives the United States Congress the authority to preempt state laws, and renders state appellat e courts bound by federal statutes. Packowski v United Food & Commercial Workers Local 951 , 289 Mich App 132, 139; 796 NW2d 94 (2010). Plaintiff does not explain how either operatio n works to his advantage in this case. “A party abandons a claim when it fails to make a meanin gful argument in support of its position.” Berger , 277 Mich App 700, 712; 747 NW2d 336 (2008).

III. CONCLUSION

Because plaintiff failed to state a constitutional tort claim upon which relief could be granted and to plead in avoidan ce of governmental immunity, we conclude that the Court of Claims properly granted defendant ’s motion for summary disposit ion of plaintiff’s complaint, and that plaintiff has suffer ed no violation to his rights of d ue process.

Affirmed

/s/ Jane M. Beckering /s/ Jane E. Markey /s/ Douglas B. Shapiro