On June 20, 2013, the Michigan Supreme Court issued a 3-2 Opinion (Justices McCormack and Viviano not participating) holding that “absolute immunity” for executive level government officials applied as well to the performance by these officials of the duties and powers that subordinate governmental employees have in the same governmental department. This is a remarkable holding that provides some context and extends further the scope and breadth of “absolute” executive immunity under MCL 691.1407(5) of the Governmental Tort Liability Act (GTLA). Here the Chief of Police of Port Sanilac conducted an ordinary public arrest of an individual under somewhat controversial circumstances. The individual who was arrested filed suit alleging counts in negligence and intentional tort (false arrest and assault and battery), and claiming the police chief was acting in both his individual and official capacity.
The legal issue concerned whether the “absolute immunity” to which executive level officials are entitled under the GTLA would shield the police chief as an “executive” exercising “executive authority” in a situation in which he acted in a capacity analogous to a “lower level” governmental employee. In the latter circumstances, such employees are entitled to immunity from suit unless it is plead and proved that they acted with “gross negligence” under MCL 691.1407(2) and (7), or that they committed an “intentional tort” under MCL 691.1407(3).
After my successful defense of a deputy sheriff in the case of Odom v. Wayne County, 482 Mich. 459 (2008), this latter “immunity” came to be known as “good faith” immunity. This case is discussed extensively in the instant case by both the majority and dissent.
Here, the slim majority holds that an executive level official is entitled to “absolute” immunity under MCL 691.1407(5) even if he or she is performing his executive authority in a manner that is similar to the performance of the duties of lower level employees within his or her governmental department.
Justice Cavanagh writes a very detailed and well-researched dissent. Joined by Justice Markman, Justice Cavanagh explains the anomaly in providing “absolute” tort immunity to executive officials performing lower-level employee functions. In cases in which such officials commit “gross negligence” or “intentional torts”, they are not subject to suit under MCL 691.1407(5)’s grant of “absolute immunity” according to the majority’s interpretation and holding.
This is an extremely critical case. Much like my case, Odom, it provides a modern (perhaps overreaching) interpretation of the meaning of “absolute” immunity. Now, rather than such immunity being extended to the executive, judicial or legislative official acting and performing his “official” executive duties only, the immunity now extends to his or her acts and conduct that would ordinarily be subject to the “gross negligence” and “intentional tort” exceptions to immunity explored in Odom as applied to lower-level governmental employees.
Given the split nature of the opinion, the rare joinder in dissent between Justices Cavanagh and Markman, and that Justices McCormack and Viviano sat out, it is difficult to suggest this case, although precedent for the time being, will survive as a lasting interpretation of MCL 691.1407(5)’s grant of “absolute immunity”.
Perhaps this is an instance in which the Legislature should step in to clarify the true breadth and extent of “absolute” immunity for the highest-level officials serving the three branches of government. It would seem unwise to extend “absolute” immunity to these officials when performing the actions of lower-level employees, when the latter would be subject to suit if they acted with “gross negligence” or committed an intentional tort in the asserted performance of the very same functions and duties.
Read the opinion here: Petipren v Jaskowski.Opinion.06.20.2013