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A Better Partnership
June 21, 2013

MSC holds governmental immunity stretches to all tasks within an agency leader's power

In Petipren v. Jaskowski, the Michigan Supreme Court held that an official's 'executive authority,' and the absolute governmental immunity that comes with it, encompass tasks that a lower-level employee may also perform. Accordingly, the defendant Police Chief was protected by governmental immunity even when he performed an ordinary arrest.

This case arose out of a charity concert that went wrong. The plaintiff's band was supposed to perform at a concert in the village of Port Sanilac. Attendees complained about the style of music, and a decision was made to stop the bands' performances. The plaintiff was warming up and had continued playing his drums when the Police Chief approached him. An altercation followed, and the plaintiff was arrested. The plaintiff later sued the Police Chief for assault and negligent and intentional infliction of emotional distress. The Circuit Court denied the defendant's motion to dismiss based on governmental immunity, concluding he was only entitled to qualified immunity and the Court of Appeals affirmed.

The Michigan Supreme Court reversed, holding the Police Chief was entitled to immunity because arrests were within his 'executive authority.' To establish governmental immunity, MCL 691.1407(5) requires a showing that the employee (1) is a judge, legislator, or elective or highest appointive executive official of a level of government, and (2) that he or she acted within the scope of his or her judicial, legislative, or executive authority. The Court noted the statute includes no indication that the immunity granted to high-ranking officials is not absolute when the official's authority encompasses conduct that might also be performed by a lower-level employee. The Court instructed that an objective inquiry into the scope of the actor's executive authority is necessary to decide whether a particular action will be subject to immunity. However, the Court cautioned that the inquiry does not include analysis of the actor's subjective state of mind.

Justices Cavanagh and Markman dissented. The dissent would have held that "executive authority" includes only a specific subset of authority that a high-level executive must be acting within the scope of to obtain the benefit of absolute immunity from tort liability under MCL 691.1407(5).


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