Opinion
No. 348987
05-21-2020
TAMMY MCNEILL-MARKS, Plaintiff-Appellant, v. MIDMICHIGAN MEDICAL CENTER-GRATIOT, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Gratiot Circuit Court
LC No. 14-011876-NZ Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ. BOONSTRA, P.J. (dissenting).
With utmost respect for my colleagues in the majority, I respectfully dissent. As the adage goes, "the perfect is the enemy of the good." In my judgment, prior panels of this Court should not be judged by the standards of the perfect world. Rather, we should recognize that we judges are not always prescient about all issues that might arise at a later point in time. As a result, we sometimes belatedly realize that we have used language that in retrospect is broader than what we would have used with perfect knowledge of the future. When that becomes apparent, we should not rotely and mechanically apply the law-of-the-case doctrine to compel a result that was not intended. We should instead be guided by judicial realities, common sense, and the interests of justice.
Voltaire, Dictionnnaire philosophique (1770 ed) ("Il meglio è l'inimico del bene").
The majority concludes that the law-of-the-case doctrine compels us to reverse the trial court. I disagree, because this Court did not, in its prior opinion in this case, either explicitly or implicitly decide the issue that is now before us. To the contrary, that issue was neither raised in nor considered by this Court before today. Additionally, I would hold that, not being bound by the law-of-the-case doctrine on that issue, the trial court correctly concluded that plaintiff did not engage in "reporting" under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq. Accordingly, I would affirm the trial court's order granting summary disposition in favor of defendant MidMichigan Medical Center-Gratiot (MMCG).
As described later in this opinion, the WPA uses the verb "reports." The parties agree that to the extent the Court construes that statutory term, we should construe it in verb form ("reports") rather than in noun form ("report"). But the English language being what it is, it is sometimes difficult to craft a sentence that properly flows using the verb form "reports." I will therefore sometimes use the term "reporting" to describe the issue with which we are wrestling in this case, but in doing so my intent is to convey a meaning consistent with the WPA's use of the verb form "reports."
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Briefly stated, MMCG terminated plaintiff's employment after it concluded that she had violated the Health and Insurance Portability and Accountability Act, codified at 29 USC 1181 et seq., 42 USC 300gg, and 42 USC 1320d et seq., and MMCG's privacy policies, by disclosing that Marcia Fields was a patient of MMCG. Plaintiff had previously obtained a personal protection order (PPO) against Fields, and on December 27, 2013 obtained a new PPO extending the prohibitions of the earlier PPO until December 31, 2014. On January 13, 2014—before serving Fields with the new PPO—plaintiff (while working at MMCG) encountered Fields in a hospital hallway. Fields was being transported (by a hospital worker) in a wheelchair. Plaintiff first informed her supervisor, who knew of the PPO, of the encounter.
At oral argument, defense counsel described Fields as being wheeled down the hospital hallway on a gurney. Whether plaintiff was in a wheelchair or on a gurney does not, however, matter to our analysis.
The factual summary I set forth in this opinion is largely taken from plaintiff's own deposition testimony.
Plaintiff later called her attorney, Richard Gay, who had left her messages over the weekend to call him back as soon as possible. Gay told her that he was having trouble serving the new PPO on Fields, and asked plaintiff what she wanted to do with the case. Plaintiff responded that Fields and her daughter had approached her at a funeral and had asked her about the case. According to plaintiff, the daughter stated that Fields was "really, really ill and going to require heart surgery." Plaintiff told Gay that "maybe if we dropped it she wouldn't have been so much of a threat, but then she showed up today at my workplace." Ultimately, during that call, plaintiff instructed Gay not to serve Fields with the new PPO:
I said not to serve [Fields] at all because she was so ill, maybe we should just hold off on this and see if it's a moot point, that she's going to pass on if she's as ill as she says she is.Notwithstanding plaintiff's instruction to Gay not to serve Fields with the new PPO, the record reflects that within 24 hours Fields was served with the new PPO in the intensive care unit of the hospital.
The record suggests that Gay's secretary may have independently seen Fields at the hospital, told her boyfriend (who was Gay's process server), and retrieved the paperwork from the office, and that the process server then served the new PPO on Fields at the hospital.
After the termination of her employment, plaintiff filed suit under the WPA. MMCG moved for summary disposition, arguing that Gay was not a "public body" as defined in the WPA, which provides, in pertinent part:
An employer shall not discharge . . . an employee . . . 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. . . . [MCL 15.362 (emphasis added).]The trial court was persuaded by that argument, and granted summary disposition in favor of MMCG. Plaintiff appealed to this Court, and this Court described the issue before it as follows:
[T]he crucial inquiry is whether plaintiff reported Fields's conduct to a public body before she was terminated or was about to do so at the time of termination. The trial court decided that she did not, reasoning that plaintiff's telephone conversation with Gay was not "a communication to a public body." Plaintiff argues that the trial court's decision was erroneous because, as a licensed Michigan attorney, Gay qualifies as a member of a "public body" for WPA purposes. [McNeill-Marks v MidMichigan Medical Center-Gratiot, 316 Mich App 1, 21; 891 NW2d 528 (2016) (emphasis added).]Addressing that question, this Court reversed, holding that under the plain language of the WPA, specifically MCL 15.361(d)(iv), Gay, as a member of the State Bar of Michigan, qualified as a member of a "public body" for WPA purposes.
MCL 15.361(d) states:
"Public body" means all of the following:
* * *
(iv) Any other body which is created by state or local authority or which is primarily funded by or thorough state or local authority, or any member or employee of that body.
MMCG then sought leave to appeal in our Supreme Court, and that Court heard oral argument on the application and directed the parties to file supplemental briefs addressing the following issues:
[W]hether the communication from the plaintiff to her attorney regarding Marcia Fields's presence at MidMichigan Medical Center-Gratiot amounted to a "report," as that word is used in Section 2 of the Whistleblowers Protection Act (WPA), MCL 15.362. In answering this question, the parties shall, at a minimum, address whether: (1) the plaintiff's communication must be to an individual with the authority to address the alleged violation of law; (2) the WPA requires that a plaintiff employee specifically intend to make a charge of a violation or suspected violation of law against another; and (3) privileged communications between a client and his or her attorney can constitute a report under the WPA. [McNeill-Marks v. MidMichigan Med Ctr-Gratiot, 500 Mich 1031; 897 NW2d 176 (2017).]
By an apparent 3-2 vote, the Court thereafter issued an order denying the application for leave to appeal because it was "not persuaded that the questions presented should be reviewed by this Court." McNeill-Marks v. MidMichigan Med Ctr-Gratiot, 502 Mich 851; 912 NW2d (2018). Justice Zahra, joined by Justice Markman, issued an extensive opinion dissenting from the denial of the application for leave to appeal. He recognized that this Court had not considered the "reporting" component of a WPA claim, stating:
Justice Wilder did not participate because he was on the Court of Appeals panel. Justice Clement also did not participate.
The Court of Appeals failed to give meaning to the term "report" under the WPA. The panel assumed that plaintiff's communication with her attorney was reporting. "It is undisputed that Gay was a licensed Michigan attorney and a member in good standing of the [SBM] when plaintiff called him and reported her contact with Fields." But an employee that simply communicates an illegality to a person falling under the broad definition of "public body" has not engaged in protected activity under the WPA. Giving the term "report" such broad meaning would ignore the textual requirements for a protected activity and would not further the purported purposes of the WPA. The WPA contains no textual basis for adopting the broadest definition for the undefined term "report." [McNeill-Marks, 502 Mich at ___; 912 NW2d at 187-188 (ZAHRA, J., dissenting) (footnotes omitted).]
Justice Zahra further concluded that the term " 'report' under the WPA requires that the whistleblower employee intend to denounce an illegality or make a charge of misconduct to a 'public body,' " and that "plaintiff's communication with her private attorney was not 'reporting' under the WPA because plaintiff did not intend to denounce an illegality or make a charge of misconduct to a 'public body.' " Id. at 187, 194.
Given the short-form nature of the Supreme Court's order denying MMCG's application for leave to appeal, there is no way to discern why the Court, after holding oral argument and directing the parties to file supplemental briefs as indicated, decided simply to deny the application. Perhaps it recognized that the pertinent "reporting" issue had not been addressed in the lower courts (just as it had not been addressed in the initial briefing in the Supreme Court) and concluded, as it so often does, that the issue should be addressed in the lower courts first. Perhaps it felt that the issue merited review by a full contingent of the Supreme Court (rather than the five participating Justices). Perhaps there was another reason or combination of reasons.
In any event, the case then proceeded in the trial court. MMCG again moved for summary disposition, but on a different ground than had been raised and decided before. Flagging the issue that had been raised in the Supreme Court's order directing supplemental briefing, and that then was addressed in substantive detail in Justice Zahra's dissenting opinion, MMCG argued—for the first time—that plaintiff, in her communication with Gay, did not "report" within the meaning of the WPA. By this time, this Court had issued its published opinion in Rivera v SVRC Indus, Inc, 327 Mich App 446; 934 NW2d 286 (2019), lv pending (Docket No. 159857), which addressed as a matter of first impression the "reporting" issue that previously had eluded the parties and the prior panel in this case, and that theretofore had not been decided in any case by this Court.
Plaintiff concedes that the "reporting" issue had not been raised in this case until the Supreme Court raised it sua sponte in its order directing supplemental briefing.
Considering that issue for the first time in this case, the trial court then granted summary disposition in favor of MMCG on that entirely new ground, stating:
So it[']s not often that I get an invitation to be reversed twice by the appellate court's [sic] on the same case in Michigan[,] and quite frankly this clash between these broad principles of the law of the case doctrine[,] and in addition the doctrine of following existing law[,] and recognizing that action on an application for leave to appeal is not a substantive decision one way or another on the issues included in the application as supplemented by additional briefing directives by the Supreme Court. When I really look at this case, frankly I am considering today for the first time whether this is a report. I took this stuff home. I studied it. I looked at it and frankly looking at Rivera and then looking at this case, I'm looking at things that I never considered before. Now I don't know what that means in the great scheme of things. It's clear to me as I read the Court of Appeals opinion that they were either [sic] unduly restricted by me and I'll own that mistake, although I blame it on the people who filed the initial briefs if I had to [sic], and I dealt with it as argued here in terms of whether Mr. Gay is a public body. I didn't deal with it separately with regard to the character of the communication in whether it constituted a report. [This case] [w]ent up to the Court of Appeals[,] and as I read Judge Wilder's opinion again, I think in large measure that was his focus as well. When I read the initial directive from the Supreme Court, it seems to me that that was their view when they signed the initial order at page 393 of volume 500 when they said the supplemental briefs will address whether the communication with her attorney constitutes a report to a public body within the meaning [sic]. I don't think that was about reporting. I think that was about the question of public body [sic]. When I take a look at their supplemental briefing directive, it reinforces that view because now for whatever reason the court says let's get some supplemental briefing on
whether or not the communication from the plaintiff to Mr. Gay constituted as a [sic] report as that's described in the Whistleblowers Protection Act[,] and so now I know the court is concerned about that. It might have come up sua sponte during oral arguments or questioning at oral arguments or a conference with respect to the outcome of the case. I don't know and I shouldn't speculate and I won't[,] but it seems clear to me that that was one of the issues that they wanted to hear arguments about and that they wanted to consider deciding[,] and then we have the order denying leave apparently approved, if I understand today's argument, by three justices to the two who were involved in Judge [sic] Zahra's dissent and it seems pretty clear to me that there those three justices, for whatever reason, didn't see any reason to grant leave and there's a hundred reasons why they might not do that[,] and Justice Zahra filed his opinion that was joined in by Justice Markman and dealt with this question of reporting[,] and the Rivera case returns for the first time to that issue. It seems clear to me that this is a situation where this question hasn't been decided in conflicting ways by an court to this point and it seems clear to me that this "report" to one's own attorney is not within the definition of the worker's whistleblowing act—the Whistleblowers Protection Act and I'm satisfied[,] therefore[,] for that reason that the motion should be granted. [Emphases added, alterations for clarity made.]
This appeal followed.
II. LAW OF THE CASE
The majority holds that notwithstanding the limited nature of the issues that were presented to (and decided by) the earlier panel of this Court in this case (i.e., whether Gay was a "public body" by virtue of his status as a licensed attorney) we are now required by the law-of-the-case doctrine to reverse the trial court on the issue of "reporting." In other words, the majority holds that this Court's earlier opinion precluded MMCG from raising, and the trial court from deciding, whether plaintiff's discussion with her attorney constituted "reporting" under the WPA. The majority maintains that the earlier panel of this Court determined, at least implicitly, "that plaintiff made a 'report' to a member of a public body." But the majority reaches this conclusion simply because the earlier panel, after deciding the singular pertinent issue that was before it (i.e., Gay's status as a "public body"), went further and concluded (albeit without any further analysis of any of the other required components of "protected activity" that were then not at issue) that plaintiff therefore had "presented sufficient evidence to establish a prima facie case under the WPA." McNeill-Marks, 316 Mich App at 24.
The trial court and the earlier panel of this Court also addressed other issues that are not pertinent to this appeal. Because those other issues are extraneous to the issue now before us, I will not endeavor to characterize or address them.
The majority finds it "axiomatic that, had this Court not definitively determined that plaintiff made a 'report' (as is clearly indicated by its opinion), this Court could not have held that she presented sufficient evidence to satisfy her prima facie case, particularly that she established the protected activity element." What I find axiomatic about that statement, however, is the circularity of its reasoning. As I will describe in this opinion, it is clear to me that the earlier panel in this case decided the narrow issue before it and, having decided it, then jumped forward to the ultimate conclusion of a prima facie case, skipping over any other issues that may have lain between them (e.g., "reporting") because those other issues had not then been raised or considered.
I disagree that the law-of-the-case doctrine is properly applied in this context to such draconian effect. Indeed, I conclude that the ramifications of the majority's holding are both far-reaching and detrimental to the interests of justice. Often in litigation, while wearing the blinders that frame the questions that are at issue at any given, particular moment in time, it is difficult both for litigants and courts to discern or anticipate all of the additional issues might come down the pike. Cases evolve, after all, as facts are developed and legal issues are narrowed and refined. What the majority's holding means, however, is that any time this Court decides a narrow issue presented to it without fully anticipating all possible future issues that might arise, while perhaps failing to qualify its conclusion with sufficient precision to expressly allow for future consideration of those additional, as-yet unperceived issues, the parties, lower courts, and this Court itself are then forever barred from raising, considering, or deciding issues that had not by then even been imagined. That cannot properly be how the law-of-the-case doctrine should be applied.
As the majority facially notes, "[t]he law of the case doctrine provides that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue, but only if the facts remain materially the same." Brownlow v McCall Enterprises, Inc, 315 Mich App 103, 110; 888 NW2d 295 (2016) (quotation marks and citation omitted, emphases added). As our Supreme Court has described it, quoting Justice Holmes, the doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided" and is "not a limit to their power." Locricchio v Evening News Ass'n, 483 Mich 84, 109-110; 476 NW2d 112 (1991), quoting Messenger v Anderson, 225 US 436, 444; 32 S Ct 739; 56 L Ed 1152 (1912); Foreman v Foreman, 266 Mich App 132, 138; 701 NW2d 167 (2005); Duncan v Michigan, 300 Mich App 176, 189; 832 NW2d 761 (1995).
Consequently, the law-of-the-case doctrine "is discretionary, rather than mandatory." Bennett v Bennett, 197 Mich App 497, 500; 496 NW2d 353 (1992). "The doctrine is 'directed to a court's common sense" and is not an 'inexorable command.' " Hanover Ins Co v American Engineering Co, 105 F 3d 306, 312 (CA 6, 1997) (citation omitted). See also Petition of United States Steel Corp, 479 F 2d 489, 493-494 (CA 6, 1973) (stating that the doctrine is "[d]irected to a court's good sense so as to relieve a court of rigid adherence to its former decisions"). And courts therefore may decide when it is appropriate to apply the law-of-the-case doctrine, or when, for example, it "must yield to a competing doctrine," see Locricchio, 483 Mich at 109-110, or should not be invoked because of an "intervening change of law," Freeman v DEC Int'l, Inc, 212 Mich App 34, 38; 536 NW2d 815 (2002), or because "constitutional rights are at risk," see People v Spinks, 206 Mich App 488, 491; 522 NW2d 875 (1994). Further, this Court has described the doctrine as one that is "not inflexible, that is "designed for judicial convenience," that "need not be applied if it will create an injustice." People v Phillips, 227 Mich App 28, 33-34; 575 NW2d 784 (1997) (further stating, "we decline to apply a doctrine designed for judicial convenience in fairly administering the obligation to do justice so as to work an injustice"). Merely concluding that a previous decision was erroneous is not "sufficient by itself to justify ignoring the law-of-the-case doctrine," Bennett, 197 Mich App at 500; see also Driver v Hanley (After Remand), 226 Mich App 558, 565; 575 NW2d 31 (1997), nor will every change in the intervening law warrant ignoring the doctrine, Reeves v Cincinnati, Inc, 208 Mich App 556, 559-560; 528 NW2d 787 (1995). However, the law-of-the-case doctrine "does not apply if the court is convinced that [its prior decision] is clearly erroneous and would work a manifest injustice." Pepper v United States, 562 US 476, 506-507; 131 S Ct 1229; 179 L Ed 2d 196 (2011) (internal quotations and citations omitted).
Decisions of lower federal courts are not binding on this Court, but may be persuasive. See Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
Some of this Court's cases, such as Reeves and Duncan, have inconsistently referred to the law-of-the-case doctrine in terms that suggest a lack of discretion, such as "a bright-line rule," Reeves, 208 Mich App at 560, or as a "mandatory obligation," Duncan, 300 Mich App at 189. However, those cases also acknowledge that the doctrine was not intended to limit a court's power—in context, I read these statements in Duncan and Reeves simply as reiterating the principle that the correctness of a prior decision does not alone dictate whether it stands as law of the case.
I do not mean to suggest that the earlier panel's decision in this case was erroneous. However, to the extent that the earlier panel's decision can be interpreted (as the majority opinion interprets it) to mean that, for law-of-the-case purposes, the panel could properly decide the "reporting" issue sub silentio, i.e., by assumption rather than legal analysis, then indeed it would be in error and further would "work a manifest injustice."
Importantly, the law-of-the-case doctrine applies "only to issues actually decided, either implicitly or explicitly, in the prior appeal." Grievance Administrator v Lopatin, 462 Mich 235, 260-261; 612 NW2d 120 (2000) (declining to apply the doctrine when, in previously denying the plaintiff's application for leave to appeal, the Court had "expressed no opinion on the merits" of the plaintiff's claims); see also Webb v Smith, 224 Mich App 203, 209; 568 NW2d 378 (1997) ("The doctrine applies to questions specifically decided in an earlier decision and to questions necessarily determined to arrive at that decision); see also Driver, 226 Mich App at 566 (noting that, on remand, the "key fact" relied upon by the circuit court in dismissing the plaintiff's case was "not among the facts apparently relied on by this Court" in the prior appeal, and therefore that the law-of-the-case doctrine was not applicable); see also Hanover Ins, 105 F 3d at 312 ("the 'law of the case' doctrine precludes a court from "reconsideration of identical issues' ") (citation omitted, emphasis added).
At some level, the issue before us boils down to what "issues" the earlier panel of this Court decided. In the majority's view, the pertinent issue the panel decided was broadly whether plaintiff had established a prima facie case under the WPA. In fact, however, the pertinent issue that panel decided was whether plaintiff's attorney was a "public body" under the WPA. From its determination of that issue, the panel then summarized what it assumed to be the logical conclusion (thereby being no other pertinent issues before it at that time), i.e., that plaintiff had established a prima facie case. The issue decided, however, for law-of-the-case purposes, was the "public body" issue.
Given these inherent limitations, and the inescapable fact that the earlier panel of this Court did not address the "reporting" issue," the majority holds that the earlier panel must have implicitly decided that plaintiff's call to her attorney constituted "reporting" under the WPA. It reaches that conclusion merely because the panel went beyond its "public body" holding to further state that plaintiff had established a prima facie case under the WPA. I do not agree.
In a footnote, the majority suggests that the earlier panel's mere quotation of trial court's use of the word "communication" (rather than "report") indicates that the earlier panel conveyed "not only that the trial court erroneously concluded that plaintiff's attorney did not constitute a 'public body,' but also that the that the trial court mischaracterized plaintiff's conduct as a mere communication of conduct that did not violate any law, minimizing the nature of Fields's conduct and plaintiff's action to support its erroneous conclusion that plaintiff never engaged in protected activity." The majority thus appears to infer that the earlier panel may actually have considered whether plaintiff's call to Gay constituted "reporting" under the WPA and decided that it did. But there is no proper basis for any such inference, and I find the majority's suggestion of one to be strained at best. The record clearly reflects that the "reporting" issue was never raised, considered, or decided in or by either the trial court or this Court until after the Supreme Court raised it and the case then went back to the trial court for further proceedings. Yet the effect of the majority opinion is to dictate that the theretofore-unraised "reporting" issue never can or will be considered or decided by either the trial court or this Court, at least until such time, if any, as our Supreme Court decides to address it anew.
This Court is an error-correcting court. See People v Woolfolk, 304 Mich App 450, 475; 848 NW2d 169 (2014). As such, it is only obliged to decide issues that have been properly preserved below, see Napier v Jacobs, 429 Mich 222, 227; 414 NW2d 862 (1987); see also People v Carines, 460 Mich 750, 761-762; 597 NW2d 130 (1999), and presented on appeal, see MCR 7.212(C)(5); see also Hunt v Drielick, 298 Mich App 548, 554 n 3; 828 NW2d 441 (2012). Because the error alleged must be that of the trial court, and not one "to which the aggrieved appellant has contributed by planned or neglectful omission of action on his part," Smith v Musgrove, 372 Mich 329, 337; 125 NW2d 869 (1964), a party must preserve a claim of error in the trial court. See Napier, 429 Mich at 222. An issue is generally not properly preserved if it is not raised before, addressed, and decided by the trial court, see Gen Motors Corp v Dep't of Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010), although we may in our discretion address an issue that was raised before the trial court but not decided in order to avoid penalizing a litigant for the trial court's inaction. See Peterman v Dep't of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994).
This Court may even address issues sua sponte, if it desires. See City of Dearborn v Bacila, 353 Mich 99, 117; 90 NW2d 863 (1958). However, concern for the parties' procedural due process rights, if nothing else, requires us to afford them an opportunity to address the issue before we decide it. See Al-Maliki v LaGrant, 286 Mich App 483, 489; 781 NW2d 853 (2009); see also MCR 7.212(F); MCR 7.216(A)(9).
In the earlier appeal in this case, this Court was presented with, and decided, the issue of whether the trial court had erred by determining that plaintiff's telephone conversation with her attorney was not a communication to a public body. McNeill-Marks, 316 Mich App at 23. The trial court was not presented with, and never determined, the further issue of whether plaintiff's communication with her attorney constituted "reporting" under the WPA. Indeed, the earlier panel of this Court characterized the party's arguments, as presented to the trial court, as follows:
MMCG argued that plaintiff had failed to establish a prima facie case of unlawful retaliation under the WPA because (1) plaintiff never reported Fields's alleged violation of the PPO to a "public body" as defined under the WPA and (2) plaintiff could not have reasonably suspected that Fields's conduct—encountering plaintiff by accident while being transported in a wheelchair—violated the "stalking" prohibition in the PPO. MMCG further argued that, even if plaintiff could state a prima facie case under the WPA, she had failed to introduce any evidence that MMCG's stated reason for terminating her—i.e., its conclusion that she had violated HIPAA privacy regulations—was pretextual. . . .
In response, plaintiff argued that (1) under the WPA, Gay qualifies as a member of a "public body" because he is, as an attorney, an officer of the court and therefore a "member or employee of the judiciary," (2) likewise, Gay qualifies as a member of a "body which is created by state ... authority," specifically the State Bar of Michigan, (3) as such, plaintiff's telephone conversation with Gay constituted a report to a member of a "public body" of a violation, or suspected violation, of law, (4) plaintiff's activity was also protected under the WPA because, at the time she was terminated, she was "about to report" Fields's conduct to the circuit court, was threatened with termination if she did so, and was subsequently terminated under circumstances from which a reasonable inference of retaliation could be drawn, and (5) the stated reason for plaintiff's termination was pretextual because there is no evidence that plaintiff violated HIPAA by revealing Fields's patient status. [McNeill-Marks, 316 Mich App at 14.]
A careful read of this language confirms, as does the trial court record itself, that the parties' framing of the issues before the trial court at that time did not encompass whether plaintiff's conduct constituted "reporting" under the WPA; rather, the parties framed the pertinent issue as whether plaintiff's attorney was a "public body." Although a communication of a violation or suspected violation of the law is an element of a successful prima facie case under the WPA, it is not the only element, nor does it establish that a particular communication in fact constituted "reporting." See Rivera v SVRC Industries, Inc, 327 Mich App 446, 464; 934 NW2d 286 (2019) (concluding that the plaintiff at most "communicate[d] an illegality" to a public body and did not engage in protected activity under the WPA) (quotation marks, footnotes, and citations omitted).
Indeed, this reading of the record was later confirmed by the trial court itself, following the Supreme Court's denial of MMCG's application for leave to appeal. At that time, the trial court identified that there were two "big issues" in the case, only one of which had been addressed and decided during the initial proceedings:
One big issue is was Mr. Gay a public body and the law is [sic] yes. The second question is was the plaintiff's report to Mr. Gay a "report" for purposes of the Whistleblowers Protection Act and so that's what I'm assuming everybody is here to debate . . . .The trial court also observed that it had not previously considered whether plaintiff's communication with her attorney constituted "reporting" under the WPA, stating, "frankly I am considering today for the first time whether this is a report . . . I'm looking at things that I never considered before." And the trial court elaborated that the parties had not initially argued the "reporting" issue:
It's clear to me as I read the Court of Appeals opinion that they were either [sic] unduly restricted by me and I'll own that mistake, although I blame it on the people who filed the initial brief if I had to [sic], and I dealt with it as argued here in terms of whether Mr. Gay is a public body. I didn't deal with it separately with regard to the character of the communication in whether it constituted a report. . . . It seems clear to me that this is a situation where this question hasn't been decided in conflicting ways by any court to this point . . . .
Consistent with the parties' framing of the issues, as outlined earlier, the trial court did not, during the initial proceedings, decide the unraised "reporting" issue; rather, it held that plaintiff's call to her attorney was not a communication to a "public body." McNeill-Marks, 316 Mich App at 15-16. This Court, performing its duty to review and decide issues preserved and presented to it, then considered in the earlier appeal of this matter whether the trial court had erred. As noted earlier in this opinion, it then framed the issue on appeal, just as it had framed the issue as it had been presented to the trial court, as whether an attorney is a "public body" under the WPA:
[T]he crucial inquiry is whether plaintiff reported Fields's conduct to a public body before she was terminated or was about to do so at the time of termination. The trial court decided that she did not, reasoning that plaintiff's telephone conversation with Gay was not "a communication to a public body." Plaintiff argues that the trial court's decision was erroneous because, as a licensed Michigan attorney, Gay qualifies as a member of a "public body" for WPA purposes. [McNeill-Marks v MidMichigan Medical Center-Gratiot, 316 Mich App 1, 21; 891 NW2d 528 (2016) (emphasis added).]
The earlier panel of this Court then determined that the trial court had erred because plaintiff's attorney was, in its judgment, a "public body" under the WPA. Id. at 21 ("Plaintiff argues that the trial court's decision was erroneous because, as a licensed Michigan attorney, Gay qualifies as a member of a 'public body' for WPA purposes. We agree.").
Having thus corrected what it determined to be an error by the trial court, the earlier panel of this Court apparently failed to anticipate the separate "reporting" issue that was later identified and fleshed out in the Supreme Court's order for supplemental briefing, in Justice Zahra's dissent from the denial of MMCG's leave application, and then by this Court in Rivera. Instead, it assumed that there were no other pertinent issues and summarized what it believed to be the resulting conclusion, i.e., that plaintiff had therefore presented sufficient evidence to establish a prima facie case under the WPA. But, importantly, it reached that conclusion without considering, addressing, or deciding the later-raised "reporting" issue. And in my judgment, it therefore did so without implicating the law-of-the-case doctrine on that issue. See Smith, 224 Mich App at 209.
As reflected in that order and in its recitation of the issues to be addressed in supplemental briefing, the Supreme Court clearly considered that the "reporting" issue had many components beyond—and indeed that were separate and distinct from—the "public body" issue, and believed that the parties had not sufficiently addressed those components and distinctions in the lower courts or in their initial briefing in the Supreme Court. I note that, although the Court ultimately denied the application for leave to appeal, the law of the case cannot be established from the denial of leave. See Lopatin, 462 Mich at 260-261.
I mean no criticism of the earlier panel in this case. To the contrary, my experience, as one who has stood in similar shoes, leads me to empathize with it. As I have already said, it is difficult if not impossible to anticipate all unraised issues that might conceivably arise in the future. Consequently, and while we all strive for perfection in our choice of opinion language, it sometimes is such that it can later be used to imply a broader purpose than what we intended. This is such a case.
The earlier panel of this Court thus did not consider or decide, either explicitly or implicitly, whether plaintiff's communication with her attorney constituted "reporting" under the WPA. It is clear to me that both the Supreme Court and the trial court shared that view. The law-of-the-case doctrine therefore does not apply. See Smith, 224 Mich App at 209. In any event, at a minimum, I would hold that there is at least substantial ambiguity regarding whether the earlier panel in the prior appeal implicitly resolved this issue, and I therefore would, in the exercise of our discretion, decline to apply the doctrine. See Locricchio, 483 Mich at 109-110, Phillips, 227 Mich App at 34.
III. SUMMARY DISPOSITION
Having determined that the law-of-the-case doctrine does not apply to our decision in this case, I would further affirm the trial court's holding that plaintiff's communication with her attorney did not constitute a "report" under the WPA. As we discussed in Rivera, an attorney is an agent of his client. Rivera, 327 Mich App at 464. "[F]undamental to the existence of an agency relationship is the right to control the conduct of the agent with respect to the matters entrusted to him." Id. at 464-465, quoting St. Clair Intermediate Sch Dist v Intermediate Ed Ass'n/Mich Ed Ass'n, 458 Mich 540, 557-558; 581 NW2d 707 (1998) (citation omitted). In Rivera, this Court concluded that when the plaintiff communicated with her employer's attorney at its direction, she was essentially communicating with the employer itself. Rivera, 327 Mich at 465. That rationale is even stronger when, as here, a plaintiff is communicating with her own attorney in a circumstance in which the attorney-client privilege applies, such as seeking legal advice and discussing an ongoing legal matter. See Estate of Nash v City of Grand Haven, 321 Mich App 587, 593-594; 909 NW2d 862 (2017). Not only did plaintiff have the right to control her attorney's conduct with respect to the information she conveyed to him, but her attorney was forbidden by his professional ethical obligations from disclosing or acting on the information contrary to plaintiff's wishes, and would have been subject to disciplinary action for doing so. See Grievance Administrator v Deutch, 455 Mich 149, 157-158; 565 NW2d 369 (1997); see also MRPC 1.6. Therefore, plaintiff's mere communication with her own attorney, without more, cannot reasonably be termed "an attempt to bring the, as yet hidden, violation to light to remedy the situation or harm done by the violation" or as "charging" illegal conduct to a public body. Rivera, 327 Mich App at 464, 465.
Further, in this case, when plaintiff spoke with her attorney, she specifically directed him not to do anything with the information she had imparted to him. Therefore, even disregarding the agency relationship, I would consider plaintiff's conduct to be akin to that of the plaintiff in Hays v Lutheran Social Servs of Mich, 300 Mich App 54; 832 NW2d 433 (2013). In Hays, the plaintiff called law enforcement to inquire about the legal ramifications of reporting or failing to report a client's use of marijuana, and ultimately declined to file a report. Id. at 57. This Court held that the plaintiff had failed to make out a prima facie case that she was about to report a violation of the law because "[h]er conversations demonstrate[d] only that while plaintiff knew about the behavior and had a sufficiently long time to report the behavior, she declined to do so." Id. at 461. Similarly, although in the context of an actual report claim, plaintiff in this case discussed legal strategy with her attorney and ultimately decided against taking any further action. In my view, such conduct does not constitute "reporting" under the WPA. Had plaintiff directed her attorney to report a violation of the PPO to the authorities or to take some other action, my conclusion might be different. But this case is not that. Under the circumstances presented, I would therefore affirm.
In light of my dissenting status and the sufficiency of the grounds I have stated, I will not endeavor to further refine what may be the appropriate parameters or elements of "reporting" under the WPA. I note that MMCG proposes "three criteria for determining whether a communication constitutes a report under the WPA. First, the communication must be made to an independent third party. Second, the employee's communication must be to an individual with the authority to address the alleged violation of law. Third, the employee must specifically intend to make a charge of a violation or suspected violation of law against another." While I need not address those or other potential elements of "reporting" under the WPA, it seems to me that it would be helpful to both the bench and the bar for our Supreme Court (or perhaps this Court) in this or another case, to provide greater clarity in that regard. --------
For all of these reasons, I respectfully dissent, find the law-of-the-case doctrine to be inapplicable, and would affirm the trial court's order granting summary disposition in favor of MMCG.
/s/ Mark T. Boonstra