Lead Opinion
In Docket No. 298088, plaintiff, Thomas Petipren, alleged that defendant Rodney Jaskowski, the police chief for the village of Port Sanilac, assaulted him without provocation and wrongfully arrested him for resisting and obstructing and disorderly conduct. In Docket No. 301125, Petipren filed a counterclaim in a separate lawsuit brought by Jaskowski, alleging that Jaskowski negligently and intentionally inflicted emotional distress upon Petipren and acted negligently. Jaskowski appeals as of right the orders denying his motions for summary disposition that were brought pursuant to MCR 2.116(C)(7) on the basis of governmental immunity. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On July 19, 2008, the village of Port Sanilac hosted a fundraising event in a park that included a number of
From here, the parties’ portrayals of the facts sharply diverge. Petipren testified that he had been busy assembling his drum set on stage and did not know that the concert had been canceled. Petipren was in the midst of playing his usual warmup routine when he observed Jaskowski for the first time. Jaskowski appeared to be very angry, so Petipren stopped playing to determine what Jaskowski wanted. Petipren asserted that he held his drumsticks in his lap and did not say anything. According to Petipren, Jaskowski barged through Petipren’s drum set, knocked over a cymbal, grabbed Petipren’s drumsticks, and flung them away. Jaskowski then grabbed Petipren by the collar and pushed him backward off of his seat and into a pole.
Testimony from the organizer of the event and the statements of other witnesses generally corroborated Petipren’s account of the incident. Jaskowski, on the other hand, reported that when he told Petipren to stop playing, Petipren refused, swore at him, and punched him in the jaw when he tried to take Petipren’s drumsticks. Jaskowski stated that Petipren continued to resist while Jaskowski attempted to handcuff him.
Petipren filed suit against Jaskowski individually and as the police chief for assault and battery and false arrest.
II. STANDARD OF REVIEW
We review de novo a trial court’s determination regarding a motion for summary disposition. Odom v
III. STATUTORY INTERPRETATION
This appeal involves, in part, an issue of statutory construction. The primary goal of statutory interpretation is to “ascertain the legislative intent that may reasonably be inferred from the statutory language itself.” Griffith v State Farm Mut Auto Ins Co,
IV GOVERNMENTAL IMMUNITY
The governmental tort liability act (GTLA), MCL 691.1401 et seq., shields a governmental agency from tort liability “if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). “The existence and scope of governmental immunity was solely a creation of the courts until the Legislature enacted the GTLA in 1964, which codified several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency.” Duffy v Dep’t of Natural Resources,
V MCL 691.1407(5)
Jaskowski argues that he is absolutely immune from plaintiffs claims because he holds the highest appointive office at the pertinent level of government and his actions were taken within the scope of his authority. Governmental immunity from tort liability is governed by MCL 691.1407. Of particular relevance in this case, MCL 691.1407(5) provides:
A judge, legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.
A police chief is generally recognized as the highest appointive official in the police department. See Payton v Detroit,
The Port Sanilac Village Council set forth the “Essential Duties and Responsibilities” of the police chief in the job description for the position:
• Recruit, train, and monitor officers!’] performance.
• Coordinates activities by scheduling work assignments, setting priorities, and directing the work of subordinate employees.
• Plan, develop, and monitor work schedules to ensure efficient use of personnel.
“When the Legislature was considering amendments of the governmental immunity statute in 1985 and 1986, it always provided for immunity forjudges, legislators, elective officials, and the highest appointive executive officials when they are acting within the scope of their judicial, legislative, or executive authority. See House Legislative Analysis, HB 5163 Substitute H-2, November 19, 1985; Senate Analysis, HB 5163 (S-3), March 20, 1986; House Legislative Analysis, HB 5163, July 23, 1986. This is in direct contrast to the treatment of lower level governmental employees. With respect to lower level governmental employees, the Legislature considered various intent-based standards, such as ‘acting in good faith’ and ‘not acting in bad faith.’ See House Legislative Analysis, HB 5163 Substitute H-2, November 19,1985; House Legislative Analysis, HB 5163, January 16, 1986. The proposed intent requirements were in addition to other prerequisites to immunity in lower level employees; the employee’s ‘reasonable belief that he was acting within the scope of his authority and the ‘gross negligence’ standard. Id Ultimately, however, the specific intent requirement for lower level governmental employees was omitted from the bill as passed. See MCL 691.1407(2); MSA 3.996(107)(2). Thus, although the Legislature considered various intent-based factors for lower level governmental employees, such an intent factor was never considered or included with respect to high level governmental employees.”
*428 • Makes decisions and takes necessary actions. Identifies and solves administrative problems.
• Communicates effectively with others.
• Identify staff development and training needs and ensures that training is obtained.
• Oversees communication and public relations practices, and directs the dissemination of requested information and/or materials to requestors.
• Maintains records, prepares reports, and composes correspondence relative to the work to include but not limited to; [Michigan Incident Crime Reporting] state report, death and custody reports, officers killed report, [1982 PA 302 criminal justice training] fund expenditures report.
• Prepares and presents a monthly report to council at regular council meetings and attends monthly finance committee meeting.
• Reviews request for service, determines feasibility of requests according to resource capabilities; then proceeds to either execute the request or suggest other means to secure the requested service.
• Provides input into the development of long-range budget and planning information.
• Issues various licenses and permits handled by the police department (ie., Liquor licenses)!.]
• Prepares time sheets and presents to bookkeeper in a timely manner in accordance with pay dates for all officers.
• Maintains and updates policies and procedures within the police department.
• Maintains complete inventory and requisitions of materials and supplies.
• Vehicle fleet maintenance.
• Maintains records of all vehicles to establish repair/replacement.
• Maintains inventory of department of vehicles.
*429 • Provide leadership and mentoring to subordinate employees while carrying out police activities.
• Record and secure all evidence.[3 ]
A review of the duties assigned to the chief of police reveals that the chiefs duties generally involve policy, procedure, administration, and personnel matters. Generally, opinions interpreting MCL 691.1407(5) have involved either defamation lawsuits that arose from public comments made by the highest executive official of a level of government or lawsuits that arose from personnel or employment decisions made by the highest executive official of a level of government. Those cases have concluded that acts such as commenting on an official governmental matter and making personnel or employment decisions clearly fall within the scope of the executive authority of the highest executive officials of local government. For example, in Bennett, a suspended police officer brought an action for wrongful discharge against the chief of police and the mayor. This Court concluded that the chief had express legal authority to suspend police officers from duty and, therefore, was entitled to governmental immunity for suspending the police officer for operating an Internet website in violation of police department rules and regulations. Bennett,
In Washington v Starke,
In Meadows v Detroit,
We find that the Scozzari reasoning best reflects the legislative intent expressed in the words of MCL 691.1407(5). Scozzari was more faithful in construing the plain language of the statute and recognized that it refers to immunity for acts taken by the highest executive official of a level of government when the official is
Affirmed.
Notes
Petipren also filed suit against the village of Port Sanilac. The trial court dismissed the claims against the village.
In American Transmissions,
The specific job duties of the police chief do not refer to making arrests.
We note that in Meadows two different defendants functioned as chief police during the relevant time period. Although one defendant was responsible for the police officer’s suspension and another for the allegedly defamatory remarks, it was irrelevant with respect to the governmental immunity analysis as both were acting as chief of police during the complained about actions.
The duties of an ordinary police officer can he gleaned from the responsibilities of the police department generally as set forth by the Port Sanilac Village Council:
Patrol the streets of the Village of Port Sanilac, . . . observe and investigate persons, situations or things which require attention and which affect enforcement of laws or prevention of crime. Preserve the peace and protect life and property, control public gatherings and perform miscellaneous services relative to public health and safety including property checks of private residences (upon request) and commercial establishments. Receive and process complaints by citizens, arrest offenders, prepare reports and testify in court. Traffic duties shall consist of enforcing the traffic ordinances of the Village of Port Sanilac and the State of Michigan. ... Investigate traffic accidents and prepare proper reports.
We acknowledge that Jaskowski submitted an affidavit in which he averred that he did at times perform those functions that are within the scope of the duties of employees of the police department generally. This fact is not in dispute. However, the fact that Jaskowski performed those functions does not place the functions within the scope of the executive duty of the police chief; rather, they remain within the scope of the functional responsibilities of the police department generally.
Under MCL 691.1407(2) employees of a governmental unit are immune from state tort claims if all the following conditions are met:
Dissenting Opinion
(dissenting). The trial court held that defendant Rodney Jaskowski was not entitled to absolute governmental immunity under MCL 691.1407(5) because (1) Jaskowski acted outside the scope of his executive authority as chief of police and (2) Jaskowski was motivated by a “personal vendetta” against plaintiff. Because Michigan law provides no support for such a conclusion under the undisputed material facts presented to the trial court, I respectfully dissent from the majority’s decision to affirm the trial court’s order denying Jaskowski’s motion for summary disposition.
As acknowledged by the majority, MCL 691.1407(5) provides that judges, legislators, “and the elective or highest appointive executive official of all levels of
*433 (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.
Jaskowski submitted an affidavit in which he attested that his executive authority as the chief of police included, amongst many other things, the duty to “arrest offenders.” This testimony was based in part on the job description for the chief of police (which was also submitted to the trial court), which sets forth both the “functional responsibilities of the Police Department” as well as the “essential duties and responsibilities” of the position. The majority has quoted the “essential duties” but ignores the “functional responsibilities,” which, according to the chiefs affidavit, included the general aspects of the job he actually performed while serving as chief. And as noted, Jaskowski testified that some of the tasks he was expected to, and did perform, were to “control public gatherings and perform miscellaneous services relative to public health and safety including .. . [t]o arrest offenders.” Importantly, plaintiff failed to submit any evidence to contradict Jaskowski’s affidavit and documentary evidence, so the material facts about what Jaskowski was expected to do (and actually did) as chief of police were undisputed before the trial court.
Furthermore, the Legislature has given all police officers the authority to pursue, arrest, and detain persons suspected of committing a crime. See Payton,
Plaintiff spends a significant amount of time arguing that Jaskowski was not entitled to absolute immunity because he was motivated by a “personal vendetta” against plaintiff and because Jaskowski “was acting upon his personal biases against individuals who looked different from him and played music that was unacceptable to him.” And as noted earlier, the trial court’s decision was in part based on Jaskowski being motivated by this perceived “personal vendetta.” However, whether any of these allegations are true is of no moment, and any facts pertaining to these allegations are certainly not material, for they have no bearing on the legal issue presented. A unanimous Supreme Court held more than a decade ago that there is no “malevolent heart” exception to absolute immunity, American Transmissions,
Based on the foregoing, Jaskowski was entitled to absolute immunity under MCL 691.1407(5), and I would reverse and remand for entry of an order granting Jaskowski’s motion for summary disposition.
Contrary to plaintiffs arguments, the conclusion that the police department is a level of government emanates from the definitions contained within the governmental tort liahility act, MCL 691.1401 et seq. A police department is a level of government because a “department” of a municipal corporation is a “political subdivision,” MCL 691.14010b), and a “political subdivision” is a “governmental agency” for purposes of governmental immunity, MCL 691.1401(d). Mack v Detroit,
The majority has effectively ignored Jaskowski’s affidavit, preferring instead to rely on its own reading of the job description. However, because Jaskowski’s affidavit is undisputed and it reveals that his actual duties extended to those matters listed under the “functional responsibilities” of the department, we must accept as true the factual statements of his actual job duties.
While the majority finds that the reasoning of Scozzari v City of Clare,