Complaint moves ahead in federal court

By: Alex Szwarc | C&G Newspapers | Published August 24, 2020

 On Aug. 10, it was determined that a case will proceed in federal court. The case was filed by former Macomb County Chief Assistant Prosecutor James Langtry. One of the defendants is former Macomb County Prosecutor Eric Smith, seen here in 2019.

On Aug. 10, it was determined that a case will proceed in federal court. The case was filed by former Macomb County Chief Assistant Prosecutor James Langtry. One of the defendants is former Macomb County Prosecutor Eric Smith, seen here in 2019.

File photo by Alex Szwarc

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MACOMB COUNTY — A case involving former and current top officials from the Macomb County Prosecutor’s Office will proceed in federal court.

The case was filed in U.S. District Court for the Eastern District of Michigan June 1 by former Macomb County Chief Assistant Prosecutor James Langtry. The defendants are Macomb County, former Macomb County Prosecutor Eric Smith and acting Macomb County Prosecutor Jean Cloud.

In his Aug. 10 opinion and order denying the county’s motion to dismiss, U.S. District Judge Bernard Friedman wrote that Langtry is a career prosecutor who worked for many years in the Macomb County Prosecutor’s Office.

Macomb County had filed the motion to dismiss on June 18.

In January, Langtry said he retired but was immediately rehired as a “special prosecutor.”

The case centers on Langtry’s claims that the county retaliated against him for exercising his constitutional right to free speech, for violations of the Michigan Whistleblowers’ Protection Act and for tortious interference with a beneficial employment relationship.

Friedman said Macomb County sought the dismissal of count one — First Amendment Retaliation — on the grounds that Langtry failed to identify any county policy or custom as the root cause of his termination.”

The court rejected that argument because, in part, the unconstitutional decisions in the matters were allegedly made by the county’s prosecuting attorney, Smith, being the elected prosecutor, and Cloud, being the acting or interim prosecutor.”

Langtry had been a member of the prosecutor’s office since 1988.

In his lawsuit, Langtry claims that, by a statutory office succession process determined by Smith, he was, prior to his retirement, next in line to hold the prosecuting attorney position if Smith should no longer be able to serve. Cloud and then-chief of operations Derek Miller followed Langtry as next in line.

The complaint states that, in March, Langtry engaged in protected activity by becoming a witness and participating in the criminal investigation by the Michigan State Police and the Michigan Attorney General’s Office into Smith and his use of forfeiture funds.

The charges are related to Smith allegedly misusing county asset forfeiture funds.

Smith, Miller and former chief of staff Benjamin Liston were targets of the investigation.

Sometime during the week of March 16, just days before Smith was charged with 10 felonies, Smith and Cloud, as Langtry alleges, learned that Langtry had participated in the investigation as a witness.

“On March 25, after learning of plaintiff’s participation in the investigation, defendant Smith executed a document and filed with the county clerk a new statutory statement of appointments, removing plaintiff as his successor and replacing him with defendant Cloud,” the complaint reads. “Thereafter and in retaliation for plaintiff’s protected activity, plaintiff’s duties and responsibilities were severely limited.”

It also alleges that approximately one hour after Smith was arraigned, Cloud stated that Langtry would no longer be involved in any office decision making, with Cloud referring to Langtry as a “snitch” to staff members.

On April 1, Cloud placed Miller, who is charged with official misconduct in office and conspiracy to commit a legal act in an illegal manner, on paid administrative leave and assigned a special prosecutor to handle Miller’s responsibilities. Later that month, Cloud advised Langtry that he was terminated due to a “reorganization.”

The lawsuit includes that the actions of defendants in diminishing Langtry’s duties and terminating him were in retaliation for his having participated as a witness in a government investigation into criminal activities of Smith and others from his office.

“Defendant Smith has a history of threatening and retaliating against individuals he views as being in opposition to him,” it states.

For the tortious interference count, Langtry claims that Smith intentionally and improperly interfered with their business relationship by removing Langtry’s designation as next in line, removing his duties and subsequently telling Cloud that he should be terminated.

Langtry’s lawsuit concludes that he has suffered injuries and damages including loss of career opportunities and mental anguish.

In its motion to dismiss, Macomb County says that Langtry alleged a violation of his First Amendment rights and a violation of Michigan’s Whistleblower Protection Act, in what the county calls Langtry’s failure to “state a claim upon which relief may be granted.”

The county states that Langtry fails to plead any manner of particularized factual basis to support either his First Amendment retaliation claim or his state law whistleblower claim against the county.

For count one, the court dismissed the county’s argument because, if Smith and Cloud did not have final authority to make the decisions at issue, Macomb County will have an opportunity to make this showing in a properly supported motion for summary judgment.

Friedman said Macomb County seeks to dismiss count two because Langtry’s “manifest failure to plead the factual basis causally connecting the county to the harms he alleges constitutes a failure to state a claim upon which relief may be granted.”

Friedman rejected the argument.

Friedman said Smith argues that counts one and two should be dismissed because he was not employed by the county, and therefore had no power as a state actor, when Langtry’s duties were reduced or when he was discharged.

Smith also argued that he did not have the power to select his successor because the power to fill a vacancy in the office of county prosecutor lies with the county circuit court.

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