Frohriep v. Flanagan

754 N.W.2d 912 (2008) 278 Mich. App. 665

Eric C. FROHRIEP and All Others Similarly Situated, Plaintiffs-Appellants,
v.
Michael P. FLANAGAN, Jeremy M. Hughes, and Frank P. Ciloski, Defendants-Appellees. (On Remand)

Docket No. 273426.

Court of Appeals of Michigan.

Submitted January 7, 2008, at Lansing. Decided April 29, 2008, at 9:00 a.m.

Hubbard, Fox, Thomas, White & Bengtson, P.C. (by Michael G. Woodworth, Thomas A. Bengtson, and Mark T. Koerner), Lansing, for Eric C. Frohriep and others.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Denise C. Barton, Assistant Attorney General, for Jeremy M. Hughes and Frank P. Ciloski.

Before: MARKEY, P.J., and SAWYER and BANDSTRA, JJ.

ON REMAND

PER CURIAM.

This case returns to this Court on remand from our Supreme Court, which reversed in part our judgment in Frohriep v. Flanagan, 275 Mich.App. 456, 739 N.W.2d 645 (2007) (Frohriep I). Plaintiffs brought this action alleging defendants were liable for the intentional torts of libel per se, interference with business expectancy, intentional infliction of emotional distress, and false-light invasion of privacy. Although the trial court erred by granting defendants' motion for summary disposition under MCR 2.116(C)(6), we held that the trial court nevertheless properly granted defendants summary disposition because defendants were immune from tort liability under MCL 691.1407(2) and (5). In lieu of granting leave to appeal, our Supreme Court reversed this Court's judgment with regard to defendants Jeremy M. Hughes and Frank P. Ciloski, opining:

MCL 691.1407(2) does not apply to these defendants because they are individual government employees who are not provided immunity under MCL 691.1407(5), and because the plaintiffs alleged intentional torts for which liability was imposed before July 7, 1986. MCL 691.1407(3) and Sudul v. Hamtramck, 221 Mich.App. 455, 458 [562 N.W.2d 478] (Corrigan, J.); 480-481 (Murphy, J.) (1997). We remand this case to the Court of Appeals for consideration of these defendants' remaining arguments. [Frohriep v. Flanagan, 480 Mich. 962, 741 N.W.2d 516 (2007) (Frohriep II).]

On remand, we conclude that plaintiffs failed to allege facts in avoidance of common-law qualified immunity in existence before July 7, 1986, which protected government officers, agents, and employees from tort liability. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 625-635, 363 N.W.2d 641 (1984). Alternatively, in the event we have misconstrued the scope of the remand order, we also conclude that plaintiffs failed to allege facts for which relief may be granted under the pleaded tort theories. MCR 2.116(C)(8). Accordingly, we again affirm the trial court's grant of summary disposition with regard to defendants Hughes and Ciloski.

I. Factual Background

This case arose from the efforts of the Michigan Department of Education (MDE) to implement 2005 PA 130, which amended MCL 380.1535a, § 1535a of the Revised School Code,^[1] and 2005 PA 131, which added MCL 380.1230d, § 1230d of the Revised School Code. At the relevant time, subsection 7 of § 1230d provided:

The department of information technology shall work with the [MDE] and the department of state police to develop and implement an automated program that does a comparison of the [MDE]'s list of registered educational personnel with the conviction information received by the department of state police. Unless otherwise prohibited by law, this comparison shall include convictions contained in a nonpublic record. The [MDE] and the department of state police shall perform this comparison during January and June of each year until July 1, 2008. If a comparison discloses that a person on the [MDE]'s list of registered educational personnel has been convicted of a crime, the [MDE] shall notify the superintendent or chief administrator and the board or governing body of the school district, intermediate school district, public school academy, or nonpublic school in which the person is employed of that conviction. [MCL 380.1230d(7) (as enacted by 2005 PA 131).]

Subsection 15 of § 1535a provided as follows:

The department of information technology shall work with the [MDE] and the department of state police to develop and implement an automated program that does a comparison of the [MDE]'s list of individuals holding a teaching certificate or state board approval with the conviction information received by the department of state police. Unless otherwise prohibited by law, this comparison shall include convictions contained in a nonpublic record. The [MDE] and the department of state police shall perform this comparison during January and June of each year until July 1, 2008. If a comparison discloses that a person on the [MDE]'s list of individuals holding a teaching certificate or state board approval has been convicted of a crime, the [MDE] shall notify the superintendent or chief administrator and the board or governing body of the school district, intermediate school district, public school academy, or nonpublic school in which the person is employed of that conviction. [MCL 380.1535a(15) (as amended by 2005 PA 130).]

We refer to these acts and related legislation collectively as school-safety legislation, the obvious intent of which is to improve the safety of children attending Michigan's schools by removing persons with certain criminal convictions from school employment. Frohriep I, supra at 457 n. 1, 739 N.W.2d 645.

Defendant Michael P. Flanagan was, and apparently remains, the superintendent of public instruction, the MDE's principal executive officer. Defendant Hughes was the MDE's chief academic officer and deputy superintendent, and defendant Ciloski was the MDE's supervisor of client services.

In a letter from defendant Flanagan, the MDE distributed to the various school districts, intermediate school districts, public school academies, and nonpublic schools lists of employees in their respective school systems with criminal convictions and requested the various school administrators to advise defendant Ciloski of the status of the listed employees. The letter included instructions for correcting the records that were going to be furnished to those school employees who were matched with an entry in the criminal-history database. According to the letter, an employee with a conviction of a "listed offense" had to be dismissed; one with an unlisted felony conviction might be retained if the pertinent school board and superintendent so agreed in writing; and employees with convictions of unlisted misdemeanors might be retained without special action.

The named plaintiff is a certified teacher and a member of the Michigan Education Association (MEA). Alleging that defendants falsely identified him and others similarly situated as having criminal convictions, plaintiff Eric C. Frohriep brought suit, asserting theories of libel per se, interference with business expectancy, intentional infliction of emotional distress, and false-light invasion of privacy.

Plaintiff Frohriep attached to his complaint an affidavit by defendant Hughes attesting that the MDE "undertook an initial attempt ... before the legislation went into effect, to perform the database comparison" and acknowledged the expectation that the comparison would result in some "false hits." According to Hughes, a "false hit" could arise when the MDE database was compared to the state police criminal-history database through "crossmatching of various data fields, such as name or social security number," and "where some information matched but the person identified on the registry of educational personnel had not in fact been convicted of the associated conviction in the criminal history database." Hughes additionally stated that the MDE "expected that final resolution and final confirmation of the information disclosed on the comparison would be resolved by the school district, intermediate school district, or public school academy in consultation with the employee because this would be the most expeditious way to verify the conviction information." Hughes further averred that the MDE expected that once a school district and an employee were notified of a comparison "``hit', the district would confirm its accuracy and take appropriate action."

Defendants moved the trial court for summary disposition under MCR 2.116(C)(4), (6), (7), and (8). The trial court granted the motion pursuant to MCR 2.116(C)(6), on the ground that this action was precluded because other related litigation was then in progress, namely Michigan Ed. Ass'n v. Michigan Dep't. of Ed., Ingham Circuit Court (Docket No. 06-123-CZ), where the MEA sought injunctive relief to protect its members' reputations and declaratory relief to prevent public release of the comparison data concerning school employees.

On plaintiffs' appeal, this Court held that the trial court erred in failing to recognize that the instant lawsuit and the one cited in support of the motion under MCR 2.116(C)(6) involved different claims and different parties, so the pendency of the MEA action was no bar to this lawsuit. Frohriep I, supra at 464-466, 739 N.W.2d 645. Rather than reverse and remand to the trial court, however, we concluded that the trial court had properly granted summary disposition because "plaintiffs' tort claims were barred by immunity granted by law." Id. at 467, 739 N.W.2d 645. Specifically, we discussed the "common law of governmental immunity from tort liability for governmental agencies and their employees," which our Supreme Court discussed in Ross, supra. Frohriep I, supra at 467, 739 N.W.2d 645. Ultimately, we concluded that defendant Flanagan, because he was the highest executive official of the MDE, was absolutely immune from tort liability pursuant to MCL 691.1407(5).^[2]Frohriep I, supra at 469-472, 739 N.W.2d 645. With respect to defendants Hughes and Ciloski, we opined, id. at 473, 739 N.W.2d 645:

[P]laintiffs have failed to allege any specific action either defendant took in the furtherance of preparing or distributing the criminal history comparison lists that form the basis of plaintiffs' tort claims. To the extent that Hughes and Ciloski may have assisted the MDE, the MDE is a governmental agency that was engaged in the exercise or discharge of a governmental function. See MCL 691.1401(f).8 Further, plaintiffs have alleged no facts from which it can be inferred that either Hughes or Ciloski was acting outside the scope of his authority or that they acted in a grossly negligent manner. Accordingly, plaintiffs have failed to plead facts in avoidance of governmental immunity, Kendricks [v. Rehfield, 270 Mich.App. 679, 681, 716 N.W.2d 623 (2006)], and Hughes and Ciloski are immune from plaintiffs' tort claims. MCL 691.1407(2). Defendants were therefore entitled to summary disposition pursuant to MCR 2.116(C)(7).

8 MCL 691.1401(f) provides in part: "``Governmental function' is an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." Here, the conduct that forms the basis of plaintiffs' tort claims was expressly or impliedly authorized by the school safety legislation.

As noted above, in lieu of granting leave to appeal, our Supreme Court reversed this Court's judgment that MCL 691.1407(2) provided immunity to defendants Hughes and Ciloski. The Court's order stated that subsection 2 of § 1407 did not apply to defendants Hughes and Ciloski "because they are individual government employees who are not provided immunity under MCL 691.1407(5), and because the plaintiffs alleged intentional torts for which liability was imposed before July 7, 1986." Frohriep II, supra at 962, 741 N.W.2d 516. The Supreme Court remanded this case to this Court "for consideration of these defendants' remaining arguments." Id.

II. Analysis on Remand

A

First, we agree that MCL 691.1407(5) applies only to defendant Flanagan. Frohriep I, supra at 472, 739 N.W.2d 645.

Second, because plaintiffs allege intentional torts, we erred in Frohriep I in our citation of MCL 691.1407(2) as the legal basis for providing immunity to defendants Hughes and Ciloski. Instead, Ross, supra, should be the basis for our analysis regarding these two defendants. Although MCL 691.1407 provides the criteria for invoking statutory governmental immunity, subsection 7(3) provides: "Subsection (2) does not alter the law of intentional torts as it existed before July 7, 1986." Consequently, "an individual employee's intentional torts are not shielded by our governmental immunity statute...." Sudul, supra at 458, 562 N.W.2d 478 (Corrigan, J.). When an intentional tort is alleged against an officer or employee of a governmental agency, a governmental agency volunteer, or a member of a board, council, commission, or statutorily created task force of a governmental agency, the law, i.e., claims and defenses, must be analyzed "as it existed before July 7, 1986," i.e., prior to the effective date of subsection 2, which was added by 1986 PA 175. See Sudul, supra at 480-481, 562 N.W.2d 478 (Murphy, J.).

Third, we agree that plaintiffs have alleged intentional torts for which liability might have been imposed on governmental employees before July 7, 1986.^[3] On the other hand, this Court has held that "government employees are generally not protected against liability for intentional torts, Sudul [supra at 458, 562 N.W.2d 478], but that if the acts that are purportedly intentional torts were justified, governmental immunity applies." VanVorous v. Burmeister, 262 Mich.App. 467, 480, 687 N.W.2d 132 (2004), citing Brewer v. Perrin, 132 Mich.App. 520, 528, 349 N.W.2d 198 (1984). As the Court observed in Brewer, "at times, the government finds it necessary to do things that would normally be called intentional torts...." Brewer, supra at 528, 349 N.W.2d 198. Moreover, Ross, supra, was decided before July 7, 1986, and held that governmental employees were protected from tort liability by qualified immunity under the common law. Ross, supra, at 591-592, 633-634, 363 N.W.2d 641. Indeed, since it was decided, Ross has served as the cornerstone for legal analysis regarding governmental immunity and is the seminal pre-July 7, 1986, case for the law on governmental immunity from liability for any tort.

In Ross, the Court addressed nine individual cases^[4] in which it examined "the extent of immunity from tort liability which the governmental tort liability act [GTLA], MCL 691.1401 et seq.; MSA 3.996(101) et seq., and the common law provide to the state and its agencies, non-sovereign governmental agencies, and the officers, agents, and employees of these state and local governmental agencies." Ross, supra at 591, 363 N.W.2d 641 (emphasis added). The Court first noted that the Legislature in enacting the GTLA preserved the common law of "sovereign (state) immunity from tort liability as it existed at the time the statute was enacted." Ross, supra at 595, 363 N.W.2d 641, citing MCL 691.1407, now MCL 691.1407(1). The Court held that "the state enjoyed immunity from tort liability at common law whenever it was engaged in the exercise or discharge of a governmental function, unless a statutory exception was applicable" and that "[t]he immunity granted to the state by the first sentence of [MCL 691.1407(1)] is essentially coextensive with this common-law immunity." Ross, supra at 608, 363 N.W.2d 641.

With respect to individual government employees, the Ross Court observed that the GTLA, as it then existed, did "not address whether or when individual officers, employees, and agents are immune from tort liability." Id. at 628, 363 N.W.2d 641. "Thus, the existence and scope of individual immunity continues to be a creature of judicial decision-making." Id. at 629, 363 N.W.2d 641. The Court's discussion of the history of judicially created tort immunity with respect to government employees leads us to conclude that the principles the Ross Court announced apply to the intentional torts alleged against defendants Hughes and Ciloski.

The Ross Court observed that at the time of its decision, the scope of immunity from tort liability granted to government officers and employees and agents of governmental agencies was not clear, but before 1979, such "officers, employees, and agents were immune when engaged in discretionary, as opposed to ministerial, acts which were within the scope of their authority." Id. at 626, 363 N.W.2d 641. The Court opined:

Michigan's traditional "discretionary/ministerial" approach to individual immunity is somewhat different than [sic] that of other jurisdictions. Michigan case law affords absolute immunity to all public officials, employees, and agents for both intentional and negligent torts whenever they are engaged in discretionary acts within the scope of their authority.... Absolute immunity from tort liability is granted to judges, legislators, and the highest executive officials of all levels of government, even for malicious acts, as long as they are acting within their respective judicial, legislative, and executive authority. Lower level officers, employees, and agents are extended only qualified immunity. This immunity exists when the individual is engaged in discretionary acts which are performed in good faith. [Id. at 631-632, 363 N.W.2d 641 (emphasis added).]

Thus, in our view, the Ross Court held that the common law in Michigan extended immunity from both intentional and negligent torts to government officers, employees, and agents while engaged in discretionary acts within the scope of their authority. The Court then defined the scope of this common-law immunity, opining:

We therefore hold that judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their judicial, legislative, or executive authority. Lower level officials, employees, and agents are immune from tort liability only when they are

1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;

2) acting in good faith; and

3) performing discretionary, as opposed to ministerial acts.

Under this test, no individual immunity exists for ultra vires activities. [Id. at 633-634, 363 N.W.2d 641.]

The Court's differentiating between highest-level officials being "absolutely immune from all tort liability" and lower-level officials being "immune from tort liability" only under the specified circumstances, plainly means that lower level government officials remain potentially liable for either intentional or negligent torts if the conditions of qualified immunity are not satisfied. Indeed, in adopting these criteria, the Court quoted Littlejohn & DeMars, Governmental immunity after Parker and Perry: The king can do some wrong, 1982 Det. Col. L. R. 1, 27-28: "``The policy which only provides a limited immunity to lower level executive officials, unlike the justifications for absolute immunity, reflects a recognition that official immunity should not shield malicious or intentionally unlawful behavior when the actor is not engaged in broad, essential governmental decision-making.'" Ross, supra at 632-633, 363 N.W.2d 641.

Applying the Ross criteria for qualified immunity to plaintiffs' allegations against defendants Hughes and Ciloski, we conclude that plaintiffs assert no malicious or intentionally unlawful behavior by either defendant. While it may be inferred from plaintiffs' complaint that defendants Hughes and Ciloski played some role as MDE employees regarding the comparison lists, the school-safety legislation required the MDE to provide the lists to school districts. Consequently, plaintiffs' complaint contains no allegations from which it may be inferred that defendants Hughes and Ciloski were engaged in ultra vires activities. In sum, plaintiffs have not alleged facts sufficient to strip the activities of defendants Hughes and Ciloski of the common-law qualified governmental immunity outlined in Ross.

Specifically, with respect to the first Ross criterion, despite conclusory allegations to the contrary, the only inference that can be drawn from plaintiffs' complaint is that defendants Hughes and Ciloski were acting during the course of their employment with the MDE and acting, or reasonably believed they were acting, within the scope of their authority. Frohriep I, supra at 470-471, 739 N.W.2d 645. As we previously observed, "plaintiffs have alleged no facts from which it can be inferred that either Hughes or Ciloski was acting outside the scope of his authority...." Id. at 473, 739 N.W.2d 645. The second Ross criterion for qualified immunity is also satisfied because there are no allegations in plaintiffs' complaint that defendants Hughes and Ciloski acted in bad faith. The final Ross criterion is also satisfied because plaintiffs have not alleged that defendants Hughes and Ciloski performed only ministerial, rather than discretionary, acts with respect to distributing the comparison lists to school districts. As we stated previously, "plaintiffs have failed to allege any specific action either defendant took in the furtherance of preparing or distributing the criminal history comparison lists that form the basis of plaintiffs' tort claims." Id. Indeed, the essence of plaintiffs' complaint is that the MDE failed to first notify the individual school employees that the data comparisons identified them as having criminal convictions to verify the data matches before forwarding the match information to the local school districts. But to the extent defendants Hughes and Ciloski were involved in the MDE's decision in that regard, that decision was essentially a discretionary decision made to carry out the school-safety legislation.

In summary, although MCL 691.1407(2) does not provide immunity to lower-level governmental officers and employees in the face of a complaint alleging intentional torts pursuant to MCL 691.1407(3), common-law qualified immunity may apply. On the basis of the facts plaintiffs alleged here, we hold that defendants Hughes and Ciloski are entitled to common-law qualified immunity. We, therefore, again conclude that the trial court properly granted defendants summary disposition, albeit for the wrong reason. Frohriep I, supra at 473, 739 N.W.2d 645.

B

We also re-examine the merits of plaintiffs' intentional-tort claims against defendants Hughes and Ciloski. We note that defendants included MCR 2.116(C)(8) among their bases for seeking summary disposition. Defendants also asserted in opposition to plaintiffs' application for leave to appeal in our Supreme Court that plaintiffs' intentional-tort claims failed to state claims for which relief may be granted. Thus, examining the merits of plaintiffs' allegations is within the scope of the remand order to consider "defendants' remaining arguments." Frohriep II, supra at 962, 739 N.W.2d 645.

"A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. This Court reviews de novo a trial court's decision regarding a motion for summary disposition under MCR 2.116(C)(8) to determine whether the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery." Smith v. Stolberg, 231 Mich.App. 256, 258, 586 N.W.2d 103 (1998) (citation omitted). In reviewing a trial court's decision on a motion under MCR 2.116(C)(8), this Court accepts as true all factual allegations in the claim and reasonable inferences that may be drawn from them. Id.

1. Libel Per Se

The elements of a defamation action are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication (defamation per quod). Kefgen v. Davidson, 241 Mich.App. 611, 617, 617 N.W.2d 351 (2000). "A communication is defamatory if, under all the circumstances, it tends to so harm the reputation of an individual that it lowers the individual's reputation in the community or deters others from associating or dealing with the individual." Id. Here, because a false accusation of a criminal conviction could harm plaintiffs' employment, they have alleged libel per se. See Croton v. Gillis, 104 Mich.App. 104, 108-109, 304 N.W.2d 820 (1981).

Defendants argue that the comparison list was not published, but if it were, any participation by defendants was absolutely privileged, citing Parks v. Johnson, 84 Mich.App. 162, 269 N.W.2d 514 (1978). The Parks Court noted that the scope of absolute privilege is narrowly applied in Michigan and is generally limited to necessary functions associated with judicial, legislative, or military activities. Id. at 166, 269 N.W.2d 514; See also Oesterle v. Wallace, 272 Mich.App. 260, 264, 725 N.W.2d 470 (2006), and Froling v. Carpenter, 203 Mich.App. 368, 371-372, 512 N.W.2d 6 (1993). But the allegations of plaintiffs' complaint support the finding that defendants Hughes and Ciloski are protected by a qualified privilege. All government employees have a qualified privilege when acting within the scope of their employment. Parks, supra at 168, 269 N.W.2d 514.

A "qualified privilege extends to all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty and embraces cases where the duty is not a legal one but is of a moral or social character of imperfect obligation." Hall v. Pizza Hut of America, Inc., 153 Mich.App. 609, 619, 396 N.W.2d 809 (1986). A plaintiff asserting defamation must overcome a qualified privilege by showing that the alleged libelous publication was made with actual malice, i.e., with knowledge of its falsity or reckless disregard of the truth. Id. at 620, 396 N.W.2d 809; Prysak v. RL Polk Co., 193 Mich.App. 1, 15, 483 N.W.2d 629 (1992). General allegations of malice are insufficient to make this required showing. Hall, supra at 620, 396 N.W.2d 809; Prysak, supra at 15, 483 N.W.2d 629. Plaintiffs' allegation, supported by the Hughes affidavit, that defendants expected some "false hits" to arise from the data comparisons the school safety legislation required is insufficient to establish actual malice. "Reckless disregard for the truth is not established merely by showing that the statements were made with preconceived objectives or insufficient investigation." Grebner v. Runyon, 132 Mich.App. 327, 333, 347 N.W.2d 741 (1984).

Moreover, plaintiffs' complaint alleges that it was the Department of Information Technology and the Department of State Police, not defendants Hughes or Ciloski, that prepared the comparison lists. The matches resulting from comparing MDE records to criminal-history records that are generally available to the public was mailed to Michigan school districts by defendant Flanagan, not by defendants Hughes or Ciloski. Although plaintiffs allege all defendants "disseminated, or participated in the dissemination" of the comparison results, "Michigan has generally held that claims of libel must be pleaded with specificity." Royal Palace Homes, Inc. v. Channel 7 of Detroit, Inc., 197 Mich.App. 48, 52, 495 N.W.2d 392 (1992). As we observed in our prior opinion, plaintiffs do not specifically allege anything that either Hughes or Ciloski did in either preparing or distributing the criminal-history comparison lists. Frohriep I, supra at 470, 739 N.W.2d 645. Consequently, plaintiffs have failed to state a claim of libel per se against defendants Hughes and Ciloski on which relief may be granted.

2. Interference With a Business Expectancy

For plaintiffs to succeed on their claim of intentional interference with a business expectancy, they "must allege that the interferer did something illegal, unethical or fraudulent." Early Detection Ctr., PC v. New York Life Ins. Co., 157 Mich.App. 618, 631, 403 N.W.2d 830 (1986). Plaintiffs must, stated differently, "``allege the intentional doing of a per se wrongful act or the doing of a lawful act with malice and unjustified in law for the purpose of invading the contractual rights or business relationship of another.'" Prysak, supra at 12, 483 N.W.2d 629, quoting Stanton v. Dachille, 186 Mich.App. 247, 255, 463 N.W.2d 479 (1990). quoting Feldman v. Green, 138 Mich.App. 360, 378, 360 N.W.2d 881 (1984). Here, plaintiffs have not alleged that defendants Hughes and Ciloski did anything illegal, unethical, or fraudulent. Rather, in assisting the MDE to comply with the school-safety legislation, defendants acted lawfully and justifiably. Consequently, plaintiffs have failed to state a claim of tortious interference for which relief may be granted.

3. Intentional Infliction of Emotional Distress

To establish a claim for intentional infliction of emotional distress, plaintiffs must show (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Lewis v. LeGrow, 258 Mich.App. 175, 196, 670 N.W.2d 675 (2003). "Liability attaches only when a plaintiff can demonstrate that the defendant's conduct is ``so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.'" Id., quoting Linebaugh v. Sheraton Michigan Corp., 198 Mich.App. 335, 342, 497 N.W.2d 585 (1993). Plaintiffs have not alleged any conduct by defendants Hughes and Ciloski that is so extreme it could be called "outrageous." Thus, relief may not be granted on this claim.

4. False-Light Invasion of Privacy

False-light invasion of privacy requires a communication broadcast to the public in general or publicized to a large number of people that places the injured party in a light that would be highly offensive to a reasonable person. The actor must have had knowledge of or acted in reckless disregard of the falsity of the publicized matter and the false light in which the other would be placed. [Early Detection, supra at 630, 403 N.W.2d 830; See also Hall, supra at 617-618, 396 N.W.2d 809, and Porter v. Royal Oak, 214 Mich.App. 478, 486-487, 542 N.W.2d 905 (1995).]

Here, even if defendants Hughes and Ciloski published the comparison lists, the publication was not "to the public in general or publicized to a large number of people...." Early Detection, supra at 630, 403 N.W.2d 830. In fact, the comparison lists were sent only to the affected school districts with the expectation that if there were any erroneous matches, they would be appropriately corrected. Under these facts, plaintiffs' complaint fails to state a claim of false-light invasion of privacy against defendants Hughes and Ciloski on which relief may be granted.

In summary, plaintiffs' complaint fails to state a claim on which relief may be granted under the intentional-tort theories asserted against defendants Hughes and Ciloski. Therefore, we again conclude that the trial court properly granted summary disposition to defendants Hughes and Ciloski, albeit for the wrong reason. Frohriep I, supra at 473, 739 N.W.2d 645.

We affirm.

NOTES

[1] MCL 380.1 et seq.

[2] MCL 691.1407(5) provides: "A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority."

[3] See, e.g., Tocco v. Piersante, 69 Mich.App. 616, 245 N.W.2d 356 (1976), and Wynn v. Cole, 68 Mich.App. 706, 243 N.W.2d 923 (1976), holding that individual government employees did not enjoy immunity from defamation claims but might be protected by qualified privilege. But cf. Stewart v. Troutt, 73 Mich.App. 378, 384, 251 N.W.2d 594 (1977) (noting that a municipal employee would be entitled to an absolute privilege if the alleged defamatory statements were made in the course of carrying out an official duty). These decisions, however, cannot supersede the subsequent decision by our Supreme Court in Ross, supra, regarding common-law immunity protecting government employees from tort liability. Nor do we believe that our Supreme Court overruled Ross in its remand order in this case.

[4] Two of the cases in Ross involved allegations of intentional torts against individual government employees: Willis v. Nienow, 113 Mich.App. 30, 317 N.W.2d 273 (1982), and Trezzi v. Detroit, 120 Mich.App. 506, 328 N.W.2d 70 (1982). In Willis, this Court held that the plaintiff failed to properly state a claim for an intentional tort and our Supreme Court agreed. Ross, supra at 638-641, 363 N.W.2d 641. In Trezzi, this Court ruled that the plaintiff's intentional-tort claim was no more than a claim of gross negligence, and the issue was not further pursued in our Supreme Court. Ross, supra at 651-652, 363 N.W.2d 641.