Barry L King v. Oakland County Prosecutor ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
BARRY L. KING, UNPUBLISHED
December 13, 2016
Plaintiff-Appellant,
v No. 328403
Oakland Circuit Court
OAKLAND COUNTY PROSECUTOR, LC No. 2014-144272-CZ
Defendant-Appellee.
Before: JANSEN, P.J., and CAVANAGH and BOONSTRA, JJ.
PER CURIAM.
Plaintiff appeals by right the opinion and order of the trial court denying his motion for
reconsideration of the court’s order granting summary disposition pursuant to MCR 2.116(C)(7)
and (C)(8). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff has twice previously appealed to this Court trial court orders issued in cases filed
against this defendant. See King v Oakland Co Prosecutor, 303 Mich App 222, 224; 842 NW2d
403 (2013) (King I), and King v Oakland Co Prosecutor, unpublished opinion per curiam of the
Court of Appeals, issued July 31, 2014 (Docket No. 314779) (King II). Plaintiff has also filed
multiple suits against other defendants, of which some were and others were not appealed to this
Court. See King v Michigan State Police Dep’t, 303 Mich App 162, 841 NW2d 914 (2013); In
re Barry L King I (Oakland Circuit Court LC No. 2011-122050-CZ), and In re Barry L King II
(Oakland Circuit Court LC No. 2012-124677-AW). In this opinion, King I and King II refer to
prior cases filed against defendant and appealed to this Court, while In re Barry L King I and In
re Barry L King II refer to prior circuit court actions filed against the 48th District Court from
which no appeal was taken.
King II summarized the pertinent background facts as follows:
Plaintiff was the father of Timothy King, who, in March 1977, was 11
years old when he went missing after he made a trip to a drugstore in
Birmingham. Timothy’s body was later discovered and Timothy, along with
three other young children, were suspected to have been victims of the ‘Oakland
County Child Killer,’ who has yet to be identified and prosecuted. However,
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various agencies have continued to investigate leads in the matter over the
decades.
In 2008, the police followed up on new leads and focused the investigation
on Christopher Busch, who, in the 1970s, resided in Bloomfield Township. The
police obtained search warrants for the house where Busch had been living, to
search for trace evidence that could be connected to the murders. The search
warrants were issued by the 48th District Court. In 2010, defendant advised
plaintiff that Busch was no longer considered a suspect in the murder of his son.
[King II, unpub op at 1.]
This crime remains the subject of an ongoing investigation by the Oakland County Child
Killer (OCCK) Task Force. Plaintiff has filed several requests for documents under the Freedom
of Information Act (FOIA), MCL 15.231 et seq., from the agencies involved, presumably
seeking answers to questions concerning the death of his son. He has also sought copies of the
2008 search warrant and affidavit in support of the warrant relating to the search of Busch’s
former residence in Bloomfield Township. In 2011, the 48th District Court entered a temporary
order and subsequent extensions of that order suppressing that evidence. However, on April 1,
2013, plaintiff was given access to those documents. Plaintiff has also been permitted to discuss
the status of the OCCK Task Force investigation with authorities directly involved with the
investigation. Nevertheless, plaintiff continues to seek information relating to the filing and
entry of the warrant and affidavit, as well as various other documents concerning the
investigation, and requests an explanation for numerous decisions of defendant relating to the
investigation.
In the instant case, plaintiff filed suit seeking an order compelling the Oakland County
prosecutor to confer with plaintiff regarding the status of the investigation pursuant to the Crime
Victim’s Rights Act (CVRA), MCL 780.751 et seq. Plaintiff also sought to invalidate the 48th
District Court’s order temporarily suppressing the 2008 search warrant and affidavit, and to have
sanctions imposed on defendant for allegedly obtaining this order in violation of numerous court
rules and the Michigan Rules of Professional Conduct. Defendant moved the trial court for
summary disposition under MCR 2.116(C)(7) (barred by prior judgment) and MCR 2.116(C)(8)
(failure to state a claim). Plaintiff responded to defendant’s motion, contending that he was
entitled to discovery relating to defendant’s apparent improper actions in investigating the
underlying case and in defending against plaintiff’s lawsuits, and restating various requests for
admission that he had directed to defendant.
The trial court granted defendant’s motion, finding that plaintiff had failed to provide
legal support for his asserted right to confer with defendant and that this Court had previously
determined that the CVRA provided no such right. It further found that the issues regarding the
search warrant and affidavit had been fully litigated and were barred by prior judgment and that
plaintiff’s challenge to the propriety of the entry of the suppression order was an impermissible
collateral attack on the lower court’s order. Regarding the request for discovery, the trial court
concluded that plaintiff’s attempt to obtain discovery through requests for admission and
interrogatories went beyond the context of a valid legal claim. It also denied plaintiff’s related
request to amend his complaint. Thereafter, the trial court denied plaintiff’s motion for
reconsideration. This appeal followed.
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II. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a motion for summary disposition. Anzaldua
v Neogen Corp, 292 Mich App 626, 629; 808 NW2d 804 (2011). Summary disposition under
MCR 2.116(C)(7) is appropriate when a claim is barred because of a prior judgment. Hanley v
Mazda Motor Corp, 239 Mich App 596, 599; 609 NW2d 203 (2000). A court reviewing a
motion brought under this subrule must “consider affidavits, pleadings, depositions, admissions,
and documentary evidence filed or submitted by the parties when determining whether a genuine
issue of material fact exists.” Id. “The motion should not be granted unless no factual
development could provide a basis for recovery.” Jones v State Farm Mut Auto Ins Co, 202
Mich App 393, 397; 509 NW2d 829 (1993).
“A motion under MCR 2.116(C)(8) tests the legal sufficiency of the claim on the
pleadings alone to determine whether the plaintiff has stated a claim on which relief may be
granted. Summary disposition under subrule (C)(8) is appropriate if no factual development
could justify the plaintiff’s claim for relief.” Summer v Southfield Bd of Ed, 310 Mich App 660,
668; 874 NW2d 150 (2015) (quotation marks and citation omitted). We accept as true all well-
pleaded factual allegations and construe them in a light most favorable to the nonmovant.
Genesee Co Drain Comm’r v Genesee Co, 309 Mich App 317, 323; 869 NW2d 635 (2015).
We review de novo the applicability of the equitable doctrine of collateral estoppel.
Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
Generally, we review a trial court’s decision to grant or deny discovery for an abuse of
discretion.” Shinkle v Shinkle (On Rehearing), 255 Mich App 221, 224; 663 NW2d 481 (2003).
We review unpreserved issues for plain error affecting substantial rights. In re HRC, 286 Mich
App 444, 450; 781 NW2d 105 (2009).
III. RIGHT TO CONFER
In his brief on appeal, plaintiff fails to address the trial court’s rulings that form the basis
of this appeal. Rather, plaintiff asserts six issues that he deems to require further discovery.
These assertions relate to plaintiff’s claim discussed in Part V, below. Plaintiff thus offers no
specific argument concerning his right to confer with defendant. Nonetheless, we note that the
trial court did not err by dismissing plaintiff’s complaint because the issues were barred by prior
judgment and the complaint failed to state a claim on which relief may be granted.
In his complaint, plaintiff alleged that he was entitled to confer with the prosecutor under
the CVRA and sought an order to compel such a meeting. Crime victims are entitled “to confer
with the prosecution” under the Michigan Constitution, Const 1963, art 1, § 24. The Legislature
enacted the CVRA to prescribe the manner of affording this constitutional right to crime victims.
King I, 303 Mich App at 241. In that prior action before this Court, plaintiff argued that the
Oakland County Prosecutor violated a constitutional duty to confer with him. Id. at 239. We
rejected plaintiff’s claim, stating:
Because it is undisputed that the crime at issue here was committed in March
1977 and because article 1 of the CVRA only applies to crimes committed after
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October 9, 1985, the CVRA does not apply to the present case. Nonetheless, even
assuming that the CVRA did apply, plaintiffs have failed to identify any provision
that requires a prosecutor to confer with victims before charges are filed.
MCL 780.756 prescribes the duties owed by the prosecutor to each victim after
the criminal defendant has been arraigned for the crime. No charges have been
filed and no arraignment has occurred in this matter. Accordingly, plaintiffs have
failed to establish that defendant has violated any constitutional or statutory duty
to confer with plaintiffs . . . . [Id. at 242.]
The reasoning of King I remains sound. The record indicates that the investigation of the OCCK
crimes is ongoing, and there have been no charges filed. Under the facts and current
interpretation of the CVRA, plaintiff cannot state a viable claim for the right to confer with the
prosecutor in the instant case. MCR 2.116(C)(8).1
Further, this same claim is barred by collateral estoppel based on a prior judgment.
“Collateral estoppel, or issue preclusion, precludes relitigation of an issue in a subsequent,
different cause of action between the same parties or their privies when the prior proceeding
culminated in a valid final judgment and the issue was actually and necessarily determined in the
prior proceeding.” Ditmore v Michalik, 244 Mich App 569, 577; 625 NW2d 462 (2001). Again,
we have previously rejected the exact claim that plaintiff alleged in his complaint in this case.
King I, 303 Mich App at 236, 242. Accordingly, we conclude that the trial court did not err by
granting defendant’s motion for summary disposition relative to this claim. MCR 2.116(C)(7).
IV. SUPPRESSION ORDER
Plaintiff also claimed before the trial court that defendant acted in bad faith in obtaining
an order of suppression for evidence relating to a 2008 search warrant and affidavit. In its 2011
order, the 48th District Court suppressed the search warrant and affidavit executed at a
Bloomfield Township address under MCL 780.651. Thereafter, plaintiff filed a complaint in the
Oakland Circuit Court against the Clerk of the 48th District Court. In In re Barry L King I,
plaintiff alleged that the district court was subject to the FOIA and violated the Act by denying
his request to examine the search warrant and affidavit issued in the OCCK investigation. In an
amended complaint, plaintiff sought to be permitted to review the suppressed search warrant and
affidavit, as well as documents related to the filing of the suppression order and its renewals.
Plaintiff contended that the defendant did not follow the proper procedures for filing and
renewing a suppression order. On January 4, 2012, the circuit court affirmed the legality of the
order by granting summary disposition in favor of the district court and dismissing plaintiff’s
lawsuit.
The circuit court reached the same conclusion in the case of In re Barry L King II. On
April 17, 2012, it dismissed plaintiff’s complaint, noting that the proper remedy to challenge the
1
We note additionally that plaintiff has been provided at least one opportunity to meet with
members of the OCCK task force to discuss the investigation.
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previous court order was to appeal the circuit court’s ruling in that case. The circuit court also
denied plaintiff’s motion for reconsideration of this matter.
Plaintiff also challenged the suppression order as part of his FOIA claims in King II. We
affirmed the circuit court’s order dismissing plaintiff’s case, noting in relevant part the invalidity
of this claim that the search warrant and affidavit were improperly suppressed. King II, unpub
op at 1-2. We ruled that the issue was moot because plaintiff admitted that he was given access
to the entire 48th District Court file on April 1, 2013. Id. at 2. We further noted the FOIA action
was not the proper avenue for challenging the district court’s suppression decision. Id. at 2, n 3.
Plaintiff’s claims regarding whether defendant properly obtained the 2011 suppression
order is an improper collateral attack on the circuit court’s orders issued regarding the district
court order. Generally, any error that may be challenged through a direct appeal may not be
challenged later in a collateral attack. In re Hatcher, 443 Mich 426, 439-440; 505 NW2d 834
(1993). If such delayed attacks were permissible, there would be no finality of judgment. Id. at
440. Plaintiff initially challenged the legality of the now-expired suppression order through a
direct attack against the 48th District Court in a lawsuit filed in the circuit court. Plaintiff chose
not to appeal that ruling to this Court and cannot now seek a different result by mounting an
attack in a separate case. In In re Barry L King II, the circuit court properly held that plaintiff’s
sole course of action was in an appeal from the circuit court’s order in the first case. Because
plaintiff’s allegations related to the suppression order were an improper collateral attack, not a
direct appeal, the trial court did not err by granting defendant’s motion for summary disposition
and dismissing this claim as one for which no relief may be granted, and in declining to impose
sanctions on defendant. MCR 2.116(C)(8).
V. FURTHER DISCOVERY
Finally, plaintiff’s complaint sought discovery regarding certain other matters relating to
the OCCK investigation. In his response to defendant’s motion for summary disposition,
plaintiff claimed that summary disposition was improper because certain issues required further
discovery. Although the trial court did not directly address each of plaintiff’s enumerated issues,
it held that “plaintiff’s attempt to gain discovery by way of request to admit and interrogatories
[was] improperly outside the context of a valid legal claim . . . .” Accordingly, this matter of
plaintiff’s claim for further discovery is preserved for appeal, and we will address the specific
claims that were left undecided. See Hines v Volkswagen of America, Inc, 265 Mich App 432,
443-444; 695 NW2d 84 (2005) (“[W]here the lower court record provides the necessary facts,
appellate consideration of an issue raised before, but not decided by, the trial court is not
precluded.”).
We hold that none of the six issues raised by plaintiff as requiring further discovery
present a claim on which relief may be granted. First, plaintiff claims that an explanation is
required where defendant submitted two non-identical copies of the April 29, 2011 order of
suppression to the judges in his FOIA cases and a court copy of the suppression order was
undated. Plaintiff has attached copies of orders that the 48th District Court issued relating to the
suppression of the 2008 search warrant and affidavit. There is a dated and an undated copy of
the order granting the motion to clarify the suppression order, as well as a dated copy of a
different order that renewed the suppression and clarified the trial court’s intent regarding the
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information to be suppressed. The dated orders were issued on April 29, 2011, were stamped as
“a true copy,” and were signed by the clerk of the district court. Plaintiff appears to argue that
the issuance of two different orders of suppression on April 29, 2011 renders the orders invalid.
Plaintiff cites no authority to support this legal position. “This Court will not search for
authority to sustain or reject a party’s position. The failure to cite sufficient authority results in
the abandonment of an issue on appeal.” Hughes v Almena Twp, 284 Mich App 50, 71-72; 771
NW2d 453 (2009) (citation omitted). In addition, the second order appears to be a clarification
of the court’s ruling on the suppression of the information, indicating that the warrant and
affidavit are to be suppressed as a nonpublic record and specifying certain agencies that must
comply with the order as long as the investigation is ongoing. There is no legal authority
prohibiting a court from issuing more than one order in a case on the same day.
Plaintiff also appears to argue that the undated copy invalidates the stamped and signed
copies. He states that “[i]n 56 years of practice [he] has never seen the case in which an alleged
true copy did not fully conform with the Court copy.” Again, he cites to no rule or case in
support of this legal argument, and there is no such authority holding that a court clerk’s failure
to date the court’s copy of an order invalidates the true copy of that order. Even if a true copy
could be deemed invalid in this manner, it would have no effect on this case. In King II, we held
that plaintiff’s challenge to the suppression order was moot because plaintiff had been provided
with access to the documents that were the subject of the now-expired order. Id. at 2. Further, as
discussed above, the instant case is not the proper vehicle for an attack on the suppression order.
Accordingly, this argument has no legal merit.
Second, plaintiff finds error in the procedure used in filing and entering the suppression
order and the subsequent extensions of that order. Again, plaintiff should have sought a direct
appeal of the circuit court’s decision, not attempted a delayed attack in a separate action. In re
Hatcher, 443 Mich at 439-440. Accordingly, plaintiff’s claim for further discovery of this matter
lacks legal merit.2
Third, plaintiff asserts that defendant must disclose its error in stating it could not
provide, in response to his FOIA request, certain Michigan State Police (MSP) and Federal
Bureau of Investigation (FBI) reports because they had been returned to the agencies, when
defendant in fact subsequently produced some of the records. In particular, plaintiff claims to
have received more than 300 pages of MSP documents involving Busch and two companions
after defendant had claimed it could not produce the records. Plaintiff references the affidavit of
Chief Assistant Prosecutor Paul Walton attached to the Bill of Particulars issued by defendant in
2012 as part of King II. Walton’s affidavit concerned the records he reviewed in order to
2
Even if this were the proper venue for plaintiff’s claim, there is no merit to his assertion that the
48th District Court violated the FOIA, because the Act does not apply to the judiciary. See
MCL 15.232(d)(v) (“The judiciary, including the office of the county clerk and employees
thereof when acting in the capacity of clerk to the circuit court, is not included in the definition
of public body.”). In addition, plaintiff’s citations to authority do not pertain to or establish the
requirements for temporary search warrant suppression orders issued under MCL 780.651.
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complete a PowerPoint presentation summarizing the investigation for law enforcement
agencies. Walton claimed that investigators from the two agencies were present with their
records during his review and that, following the completion of his review, he returned all the
MSP and FBI records that he used for the presentation to the government agencies. In King II,
unpub op at 5-6, this Court found no errors in defendant’s Bill of Particulars. Further, Walton’s
statement does not preclude the possibility that records from the MSP might have already been
part of the investigatory file that was later provided to plaintiff; rather, Walton only stated that
records he reviewed from the MSP and FBI in preparing a PowerPoint presentation were
returned to those agencies. Therefore, the record does not support plaintiff’s argument that a
discrepancy in defendant’s claims of exemption requires further discovery.
Fourth, plaintiff claims that he is entitled to discovery regarding defendant’s allegedly
false accusation that plaintiff disclosed the existence of the grand jury to a reporter from Channel
4 news. Plaintiff seeks the identity of the person alleging his involvement and the factual basis
for the assertion against him. Plaintiff brought this exact claim in his prior appeal in King II,
unpub op at 2-3. We determined that the then-existing record did not establish that the requested
documents existed and affirmed the trial court’s dismissal. Id. Here, plaintiff has merely
restated the same arguments and has provided no further facts that warrant a change in our
holding. We accordingly see no reason to revisit our holding in King II. Ditmore, 244 Mich
App and 577.
Fifth, plaintiff contends that defendant should be required to explain (presumably through
some discovery procedure, although plaintiff does not specify one) its actions in releasing
information regarding Busch and his two companions to local news media sources while
proclaiming to plaintiff and the trial court that this same information was exempt from public
disclosure. In the body of his brief, plaintiff fails to elaborate on the specifics of this argument
and offers no supportive legal authority. “An appellant may not merely announce his position
and leave it to this Court to discover and rationalize the basis for his claims, nor may he give
only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231
Mich App 627, 640-641; 588 NW2d 480 (1998). In addition, the release of documents relating
to the OCCK crimes was addressed and determined in King II, unpub op at 5-6, where we found
“nothing erroneous in defendant’s following the circuit court’s ruling by filing the Bill of
Particulars and . . . nothing erroneous in the Bill of Particulars itself.” Plaintiff provides no
reason for us to revisit this issue. Ditmore, 244 Mich App and 577.
Finally, plaintiff argues that defendant cannot unilaterally determine which suspects to
charge with a crime. In particular, plaintiff asserts that defendant must provide an explanation
(again, presumably during a discovery process) for its decision not to further pursue and charge
Busch and his companions with the crimes at issue. Plaintiff speculates that defendant’s decision
derives from a myriad of political abuses and disparate treatment of suspects. He also contends
that an explanation is required for defendant’s inconsistent treatment of the victims’ families.
Again, plaintiff provides no legal authority to support this assertion, and we will not search for
such authority. Hughes, 284 Mich App at 71-72. Further, in King I, this Court ruled, when
presented with similar assertions regarding credibility and speculation about motive (for
withholding information regarding Busch) that compelling the deposition of the prosecutor was
not essential to prevent injustice and would have amounted to nothing more than a “fishing
expedition.” King I, 303 Mich App at 238. This Court also ruled that the CVRA did not apply
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to the case and, even if it did, would not require the prosecutor to confer with any victims before
charges were filed. Id. at 242. Thus, to the extent that plaintiff seeks a conference with
defendant where defendant provides him with the explanations he demands, we find no legal
basis upon which to compel that meeting.
Further, to the extent that plaintiff seeks documentary information regarding defendant’s
decision not to prosecute certain suspects, the issue is settled. In King II, unpub op at 3-4, this
Court upheld the trial court’s finding that the work product privilege entitled defendant to
withhold information relating to defendant’s decision that Busch and a companion were not
involved in the murder of plaintiff’s son. It found the case of People v Gilmore, 222 Mich App
442, 446, 454-457; 564 NW2d 158 (1997), instructive because this Court denied the defendant’s
request for the “disposition record” relating to the failure to prosecute a park ranger whom the
defendant claimed had assaulted him, after concluding that the document was prepared in
anticipation of litigation. King II, unpub op at 3-4. In Messenger v Ingham Co Prosecutor, 232
Mich App 633, 641 n 2; 591 NW2d 393 (1998), we indicated that both factual and deliberative
materials may be exempted from disclosure under the FOIA. Thus, we conclude that plaintiff’s
claims regarding defendant’s charging decisions do not warrant further discovery.
For these reasons, the trial court properly declined to order further discovery. The record
indicates that further discovery would not give rise to a viable legal claim. Therefore, the trial
court did not err in granting summary disposition in favor of defendant.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Mark T. Boonstra
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