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March 29, 2015

COA adopts SCOTUS’ functionality approach to determine whether a legislator’s acts are immune from civil liability

The Court of Appeals adopted the U.S. Supreme Court’s functionality approach to determine whether a public official’s decisions should be granted immunity from suit under Michigan’s Speech and Debate Clause in Cotton v. Banks, No. 319001. With the new approach in mind, the Court of Appeals affirmed the trial court’s order denying Banks’ motion for summary disposition because he was not immune from suit when he terminated one of his personnel.
Michigan representative Brian Banks hired Tramaine Cotton in 2013. According to Cotton, Banks hired him as his driver and continuously requested to have a romantic relationship, but Cotton rejected his advances. Cotton alleges that after he rejected Banks, Banks retaliated and Cotton was constructively discharged from his job. Cotton subsequently brought an action against both Banks and the State of Michigan for wrongful termination, sexual harassment, and retaliation under the Elliot-Larsen Civil Rights Act. Cotton also claimed intentional infliction of emotional distress against Banks only.
Banks’ defenses on appeal were three-fold, that (1) he is protected from any liability under Michigan’s Speech or Debate Clause, (2) Cotton did not allege that he reported sexual harassment to a supervisor, and (3) Cotton’s emotional distress claims should be dismissed because the Civil Rights Act is Cotton’s exclusive remedy.
The Court of Appeals first held that the Legislature did not waive its immunity under Michigan’s Speech or Debate Clause by passing the Civil Rights Act.  Thus, the Clause grants certain officials immunity from criminal and civil action, and may afford a legislator immunity from liability under the Civil Rights Act. The Court then adopted the “functionality approach” stated in Forrester v. White, 484 US 219 (1988), which, in order to determine whether the Speech or Debate Clause applies to a public official, a court must determine if the official’s acts were legislative acts or were merely administrative. Based on that test, the Court held that Banks was not immune from liability because his decision to terminate Cotton did not involve any legislative concerns.
The Court then concluded that Cotton properly alleged in his pleadings that he reported harassment to his superiors because he factually asserted that he went to his superiors, which was incorporated into all of his claims. Finally, the Court held that Cotton could properly allege intentional infliction of emotional distress because relief under the Civil Rights Act and for common law emotional distress vindicate different rights, and there is no evidence that the legislature intended to abrogate any common law claims where facts may give rise to a claim both under the Civil Rights Act and under common law.
Therefore, the Court of Appeals affirmed the trial court’s denial of Banks’ motion for summary disposition.

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