Plaintiff appeals as of right from a July 28, 1987, order granting summary disposition to defendant Calhoun County Prosecutor Conrad Sindt. We affirm.
On July 23, 1985, plaintiff entered into an employment contract with the Village of Tekonsha to be a police officer. In August, 1985, the Tekonsha village attorney was advised by defendant that plaintiff had been the subject of a police investigation for possible criminal activities three to four years previously. At the request of the village attorney, defendant obtained and forwarded a copy of the police investigation report.
The report, dated April 13, 1981, indicated that plaintiff had approached two teen-age girls and asked to take pictures of them in bikini bathing suits. Plaintiff was in a parked van when he *804 approached the girls and had from ten to fifteen bathing suits in the van. The girls tried on the suits. The report further indicated that plaintiff had been involved in a similar incident one year earlier. The report advised that defendant had determined that insufficient evidence of a commission of a crime was presented in the report and accordingly did not initiate criminal proceedings against plaintiff.
Following receipt by the village attorney of the incident report and a subsequent meeting of the Tekonsha village council, plaintiff’s services were terminated. On August 13, 1985, plaintiff filed this action against defendant seeking damages for alleged slander and libel, intentional interference with contractual and prospective contractual rights, and public disclosure of private facts. The trial court granted summary disposition to defendant on the basis of common-law prosecutorial immunity.
Prior to 1986, the law of governmental immunity as it applied to individual governmental officers, employees, and agents was a creature of judicial decision-making. In an attempt to delineate the law of governmental individual immunity, the Supreme Court, in
Ross v Consumers Power Co (On Reh),
[J]udges, 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 *805 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. [Ross, supra, pp 633-634.]
The standard for individual governmental immunity is now prescribed by statute.
(2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency shall be immune from tort liability for injuries to persons or damages to property caused by the officer, employee, or member while in the course of employment or service or volunteer while acting on behalf of a governmental agency if all of the following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence” means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
(5) Judges, legislators, and the elective or highest appointive executive officials of all levels of government are immune from tort liability for injuries to persons or damages to property when *806 ever they are acting within the scope of their judicial, legislative, or executive authority.
The amendment applies to cases filed on or after July 1, 1986,
The Legislature adopted the Ross distinction between higher and lower level governmental employees. While modifying the Ross standard as it applies to lower level employees, the immunity standard for higher level officials virtually parallels the Ross holding. MCL 691.1407(5); MSA 3.996(107)(5).
We hold defendant to be immune from liability under subsection (5) of the governmental immunity statute. Defendant prosecutor is the chief law enforcement officer of the county.
Genesee Prosecutor v Genesee Circuit Judge,
Plaintiff contends that the governmental immunity statute is inapplicable where damages are sought for an intentional tort. In
Smith v Dep’t of Public Health,
Subsection (2) shall not be construed as altering the law of intentional torts as it existed prior to the effective date of subsection (2).
While arguably subsection (3) evinces legislative intent to except intentional torts from the governmental immunity defense with respect to suits against lower level officials, we think the fact that no reference was made to subsection (5) in subsection (3) strongly indicates that the Legislature intended to immunize judges, legislators, and the elective or highest appointive executive officials from all tort liability, including that for intentional torts.
Plaintiff alternatively argues that, in releasing the police report to plaintiff’s employer, defendant was not performing a judicial or quasi-judicial function, and therefore the absolute immunity defense is unavailable to defendant.
Apart from the development of the doctrine of governmental immunity there developed the concept of judicial immunity or privilege. That privilege has been extended to prosecuting attorneys on the theory that they act in a quasi-judicial capacity.
Belt v Ritter,
"The public interest requires that persons occupying such important positions and so closely identified with the judicial departments of the government should speak and act freely and fearlessly in the discharge of their important official functions.”
In
Imbler v Pachtman,
The Court reasoned that such activities were "intimately associated with the judicial phase of the criminal process,” and thus were activities which deserved the same degree of immunity as that provided under common law. Imbler, supra, p 430. The Court identified various considerations in support of its holding. The threat of suits, for example, would undermine the prosecutor’s performance in that every decision would be clouded by considerations of his own potential liability for damages. Further, "unique and intolerable burdens” would be imposed if prosecutors were required to defend a decision requiring the exercise of discretion. Imbler, supra, pp 424-426. Thus, in considering the applicability of the defense of absolute immunity, the focus is on the functional nature of the prosecutor’s activities which are the basis of the lawsuit rather than his status as a prosecutor. Imbler, supra, p 430. [Emphasis in original.]
*809
See also
Davis v Eddie,
As we noted in
Payton, supra,
p 367, the federal courts, in applying the rule established in
Imbler,
have distinguished activity which is quasi-judicial in nature, and therefore absolutely immune, from prosecutorial activity which is essentially investigative or administrative and therefore entitled to only the protection of the qualified immunity. See
Manion v Michigan Bd of Medicine,
765 F2d 590, 594 (CA 6, 1985);
Windsor v The Tennessean,
719 F2d 155, 164 (CA 6, 1983), reh den 726 F2d 277 (CA 6, 1984), cert den
"[T]he physical and temporal relationship of the activity in question to the judicial process, the degree to which the acts depend upon legal opinions and/or discretionary judgments, and the extent to which the acts at issue are primarily concerned with the prosecutor’s role as an advocate.” (Footnotes omitted.) Wilkinson v Ellis,484 F Supp 1072 , 1081 (ED Pa, 1980).
Plaintiff argues that application of the noted factors to this case shows that the conduct of defendant, in advising the village attorney of the police report and releasing it to him, is not the kind of quasi-judicial activity entitled to absolute immunity. We think that a federal court, applying the federal standard, might well agree with plain *810 tiff. See, e.g., Windsor, supra, where a majority of the Sixth Circuit panel, over a vigorous dissent, held that a United States Attorney was performing an administrative, not quasi-judicial, function in recommending the dismissal of an assistant United States Attorney. 2
Our decision, however, in this case does not rest on the common-law doctrine of prosecutorial immunity, but rather on the governmental immunity doctrine as codified in MCL 691.1407; MSA 3.996(107). We are not prepared to read into the statutory provision a distinction between quasi-judicial and administrative or investigative activity. Subsection (5) provides absolute immunity to the covered executive officials whenever they are acting within the scope of their executive authority. Notice of plaintiffs hiring by the village came to defendant in his capacity as prosecutor and, as the chief law enforcement officer in the county, the prosecutor was acting within the scope of his executive authority in acting to ensure that a potential police officer in his county was a fit person for that job. 3 Defendant is immune from liability to plaintiff for defendant’s having advised *811 the Tekonsha village attorney of the April 13, 1981, police incident report concerning plaintiff.
The order awarding summary disposition to defendant is affirmed.
Notes
Stoick v Caro Community Hospital,
We do not think, however, that a federal court would necessarily reverse the order of summary disposition. Even if the complained-of activity is interpreted as administrative, rather than quasi-judicial, it is still protected by qualified immunity. Qualified immunity shields government officials performing discretionary functions from civil liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Harlow v Fitzgerald,
Our conclusion is buttressed by MCL 37.2205a; MSA 3.548(205a), which exempts a law enforcement agency of the state or a political subdivision of the state from the general prohibition against requesting, making, or maintaining, in connection with an application for employment, a record regarding an arrest, detention, or disposition of a violation of law in which a conviction did not result.