Thomas J Petipren v. Rodney Jaskowski

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

Syllabus Robert P. Young, Jr. Michael F. Cavanagh

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:

prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis

PETIPREN v JASKOWSKI

JASKOWSKI v PETIPREN

Docket Nos. 144142 and 144143. Argued November 14, 2012 (Calendar No. 6). Decided

June 20, 2013.

Thomas J. Petipren brought an action in the Sanilac Circuit Court against Rodney

Jaskowski, who was the police chief for the village of Port Sanilac, and the village of Port

Sanilac, alleging that Jaskowski had assaulted and wrongfully arrested him for resisting and

obstructing and disorderly conduct (Docket No. 144142). Jaskowski filed a separate suit against

Petipren, alleging assault and negligent and intentional infliction of emotional distress. Petipren

filed a counterclaim in the separate lawsuit, alleging claims of negligence, negligent infliction of

emotional distress and intentional infliction of emotional distress against Jaskowski (Docket No.

144143). Petipren’s band had been scheduled to perform at a fundraiser hosted by the village of

Port Sanilac. Attendees complained about the style of music that was being performed before

Petipren’s performance. Jaskowski was called to the event, and a decision was made to stop the

bands’ performances. Petipren, who claimed that he was unaware of the decision to stop the

performances, was warming up on his drum set when Jaskowski approached him. Jaskowski

proceeded to arrest Petipren, but the parties’ respective versions of the circumstances

surrounding the arrest were completely different. Petipren alleged that he did not resist arrest,

but that Jaskowski barged through the drum set and then pushed him off his seat and into a pole

before pushing him off the stage and onto the grass where he was handcuffed. Jaskowski alleged

that Petipren refused to stop playing, swore at him, struck him in the jaw, and then resisted

arrest. Jaskowski filed motions for summary disposition pursuant to MCR 2.116(C)(7) in both

cases on the basis that under MCL 691.1407(5), Petipren’s claims were barred by governmental

immunity. The court, Donald A. Teeple, J., denied Jaskowski’s motions. Jaskowski appealed

both orders and the Court of Appeals consolidated the appeals. The Court of Appeals,

FITZGERALD and RONAYNE KRAUSE, JJ. (MURRAY, P.J., dissenting), affirmed. 294 Mich App

419 (2011). The Supreme Court granted leave to appeal. 491 Mich 913 (2012).

In an opinion by Justice KELLY, joined by Chief Justice YOUNG and Justice ZAHRA, the

Supreme Court held:

As used in MCL 691.1407(5), the term “executive authority” encompasses all authority

vested in the highest executive official of a level of government by virtue of his or her role in the

executive branch, including the authority to engage in tasks that might also be performed by

lower-level employees. Thus, the highest executive official of a level of government is entitled

to absolute immunity under MCL 691.1407(5) even when performing acts that might otherwise

be performed by a lower-level employee if those acts fall within the authority vested in the

official by virtue of his or her role as an executive official.

1. Under MCL 691.1407(5), a judge, a 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. To qualify for absolute immunity under the statute, the

governmental employee must establish (1) the he or she is a judge, legislator, or the 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. In context, the words

“executive authority” appear as a counterpart to the statute’s reference to judicial and legislative

authority, thereby referring to the division of power among the three branches of government.

Thus, “executive authority” means all authority vested in the highest executive official of a level

of government by virtue of his or her position in the executive branch. In arguing that the

immunity provided for in the statute is limited to a specific subset of authority, the dissent

departed from the statutory language, isolating the term “executive authority” from its context.

The official’s scope of authority is the extent or range of his or her delegated executive power.

Although lower-level employees and high-ranking officials may possess some overlapping

authority and engage in the same governmental conduct, 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. An objective

inquiry into the factual context is necessary to determine the scope of the actor’s executive

authority. Factors to consider include the nature of the specific acts alleged, the position held by

the official alleged to have performed the acts, the charter, ordinances, or other local law

defining the official’s authority, and the structure and allocation of powers in the particular level

of government. The inquiry does not include analysis of the actor’s subjective state of mind.

2. In this case, Jaskowski had the statutory authority to conduct an arrest and his job

duties included arresting offenders. There was no genuine issue of material fact with regard to

whether Jaskowski possessed the authority to conduct an arrest. When the highest appointive

executive official of a level of government acts within the authority vested in the official by

virtue of his or her executive position and there are no questions of material fact, the official is

entitled to absolute immunity as a matter of law. The circuit court erred when it denied

Jaskowski’s motions for summary disposition because it believed that Jaskowski had acted out of

personal animus. The actor’s intent has no bearing on the scope of his or her executive authority.

The Court of Appeals erred when it construed the term “executive authority” as including only

high-level tasks exclusive to an executive’s position. Because the power to arrest fell within the

scope of Jaskowski’s executive authority, he was absolutely immune from tort liability stemming

from Petipren’s arrest, and the lower courts erred by denying Jaskowski’s motions for summary

disposition.

Reversed and remanded for entry of judgment in favor of Jaskowski in Docket No.

144142, for entry of judgment in favor of Jaskowski on Petipren’s counterclaims in Docket No.

144143, and for further proceedings consistent with the Court’s opinion.

Justice CAVANAGH, joined by Justice MARKMAN, dissenting, would have held that the

word “executive” within the phrase “executive authority” refers to 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). The majority’s interpretation erroneously

construed the phrase “executive authority” as coextensive with the phrase “executive branch.” In

doing so, it failed to give effect to every word in the statute and broadened the scope of absolute

immunity beyond the intent of the Legislature. With regard to this case, a chief of police is not

entitled to absolute immunity simply because, as a police officer, the chief has the authority to

arrest. In carrying out the decision to arrest, Jaskowski was not acting within the scope of his

executive authority as the highest appointive executive official of a level of government. Instead

he was acting within his authority as an ordinary police officer. Accordingly, Jaskowski was

only entitled to seek qualified immunity under MCL 691.1407(2) and Ross v Consumers Power

Co (On Rehearing), 420 Mich 567 (1984).

Justices MCCORMACK and VIVIANO took no part in the decision of this case.

©2013 State of Michigan

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

FILED JUNE 20, 2013

STATE OF MICHIGAN

SUPREME COURT

THOMAS J. PETIPREN,

Plaintiff-Appellee,

v No. 144142

RODNEY JASKOWSKI,

Defendant-Appellant,

and

VILLAGE OF PORT SANILAC,

Defendant.

RODNEY JASKOWSKI,

Plaintiff/Counterdefendant-

Appellant,

v No. 144143

THOMAS J. PETIPREN,

Defendant/Counterplaintiff-

Appellee.

BEFORE THE ENTIRE BENCH (except MCCORMACK and VIVIANO, JJ.)

MARY BETH KELLY, J.

This case concerns “absolute” governmental immunity. Specifically, we consider

whether a village chief of police, the highest appointive executive official of a level of

government, acted within the scope of his “executive authority” when he performed the

duties of an ordinary police officer and is, therefore, entitled to absolute immunity under

MCL 691.1407(5) of the governmental tort liability act (GTLA), MCL 691.1401 et seq.

We hold that the term “executive authority,” as used in MCL 691.1407(5), encompasses

all authority vested in the highest executive official by virtue of his or her role in the

executive branch, including the authority to engage in tasks that might also be performed

by lower-level employees. Consistent with the plain meaning of “executive authority,”

the highest executive official is entitled to absolute immunity under MCL 691.1407(5)

even when performing acts that might otherwise be performed by a lower-level employee

if those actions fall within the authority vested in the official by virtue of his or her role

as an executive official. Because no factual dispute exists in this case with regard to

whether the village chief of police had the authority to conduct an arrest in his official

capacity as chief of police, we hold that the chief of police is absolutely immune from

tort liability arising from his arrest of the citizen in this case. The Court of Appeals

reached a contrary conclusion and, accordingly, we reverse the judgment of the Court of

Appeals and remand this matter to the circuit court for entry of summary disposition in

favor of village of Port Sanilac Chief of Police Rodney Jaskowski with regard to the

claims against him and for further proceedings not inconsistent with this opinion.

2

I. FACTS AND PROCEDURAL HISTORY

On July 19, 2008, the village of Port Sanilac held its annual “Bark Shanty

Festival,” an outdoor summer fundraising event involving a beer tent and several musical

acts. The band HI8US was among the acts scheduled to perform. Before HI8US’s

scheduled performance, volunteers working at the beer tent received numerous

complaints about the allegedly offensive music. Ron Smith, the Brown City Police

Chief, reported to the park after volunteers at the beer tent relayed to him the complaints

about the offensive music. The organizer of the musical portion of the event also

returned to the park after receiving a call informing her that festival patrons were

displeased with the music.

When Smith arrived at the park, he heard individuals in the beer tent heckling the

band then onstage. He also saw attendees, including families, leaving the festival, some

of whom voiced their displeasure with the musical performances as they left. Several

individuals also complained to Smith that they found the bands’ music “offensive,

disturbing, and not appropriate for the crowd.” The Village of Port Sanilac Fire Chief,

who was involved with beer tent operations, indicated he would close the beer tent if the

bands’ music continued to drive patrons away. He also warned Smith that he anticipated

trouble arising between the bands’ supporters and other festival attendees. Concerned

about the festival’s atmosphere, Smith contacted Jaskowski to report the potential

trouble. After speaking with Smith, Jaskowski went to the park and agreed with the

decision to stop the bands’ performances.

3

Thomas Petipren, a drummer for HI8US, claims that he did not know that

organizers decided to cancel the remaining musical performances and was onstage

playing his normal warm-up routine when Jaskowski approached him. Petipren noticed

Jaskowski appeared angry, so he stopped playing and held his drumsticks in his lap. He

claimed he said nothing and simply waited to find out what Jaskowski wanted.

Jaskowski then allegedly knocked over Petipren’s equipment, grabbed and threw

Petipren’s drumsticks to the ground, and assaulted him, grabbing Petipren by the collar

and pushing him off his seat and into a pole. Petipren claims he put his arms up and

asked, “What did I do?” Jaskowski then allegedly pushed him off the stage and down

onto the grass, yelling at Petipren to stop resisting. Once Petipren was face down,

Jaskowski handcuffed him. When a bystander asked why Petipren was being arrested,

Jaskowski had him arrested as well.

In contrast to Petipren’s version of events, Jaskowski insists that he told Petipren

to stop playing, to which Petipren responded by swearing at him and punching him in the

jaw. Jaskowski then arrested Petipren. Jaskowski maintains that Petipren continued to

resist while he was placed in handcuffs. Jaskowski arrested Petipren for resisting and

obstructing a police officer, assaulting a police officer, and disorderly conduct, but the

prosecutor ultimately declined to press any charges.

Following the incident, Petipren filed suit against the village of Port Sanilac1 and

Jaskowski, individually and in his capacity as the chief of police.2 Petipren alleged

1

The circuit court dismissed the claims against the village after determining that the

village was immune from liability under MCL 691.1407(1), which provides immunity to

governmental agencies engaged in governmental functions.

4

assault and battery and false arrest. Several months later, Jaskowski filed a separate suit

against Petipren, claiming assault and battery, intentional infliction of emotional distress,

negligence, and negligent infliction of emotional distress.3 Petipren, in turn,

counterclaimed against Jaskowski, alleging intentional infliction of emotional distress,

negligence, and negligent infliction of emotional distress.

Jaskowski moved for summary disposition under MCR 2.116(C)(7) in Petipren’s

original suit, and, at a later date, under MCR 2.116(C)(7), (8), and (10) in regard to

Petipren’s counterclaims. In both cases, Jaskowski asserted that he was absolutely

immune under MCL 691.1407(5) of the GTLA because, in executing the arrest, he acted

within his executive authority as the highest appointed executive official of a level of

government.4 To establish his claim, Jaskowski provided the circuit court with the job

description for the village of Port Sanilac chief of police and an affidavit in which he

attested to his occupational duties. The job description includes a list of “ESSENTIAL

DUTIES AND RESPONSIBILITIES” and identifies the “FUNCTIONAL

2

Sanilac Circuit Court Docket No. 09-032990-NO.

3

Sanilac Circuit Court Docket No. 10-033374-NO.

4

In regard to Petipren’s negligence-based counterclaims, Jaskowski also asserted that he

was entitled to the governmental immunity available to all officers and employees of

governmental agencies under MCL 691.1407(2) because Petipren failed to allege gross

negligence. See Odom v Wayne Co, 482 Mich 459, 479-480; 760 NW2d 217 (2008).

Relying on Odom, Jaskowski also maintained that Petipren’s intentional-infliction-of-

emotional-distress counterclaim must be dismissed because Jaskowski had acted in good

faith, he acted or reasonably believed he was acting within the scope of his authority, and

the arrest was discretionary in nature, thereby entitling him to the immunity available to

lower-level employees under MCL 691.1407(2).

5

RESPONSIBILITIES” of the police department, the latter of which include

“[m]aintenance of law and order in the Village of Port Sanilac” and “[t]he enforcement of

all laws of the United States, the State of Michigan, and all ordinance of such law, and

ordinances of the Village of Port Sanilac.”5 The functional responsibilities identified in

the job description also included

[p]atrol[ing] the streets of the Village of Port Sanilac, . . . and in doing so

observ[ing] and investigat[ing] persons, situations or things which require

attention and which affect enforcement of laws or prevention of crime.

Preserv[ing] the peace and protect[ing] life and property, control[ing]

public gatherings and perform[ing] miscellaneous services relative to public

health and safety including property checks . . . . Receiv[ing] and

process[ing] complaints by citizens, arrest[ing] offenders, prepar[ing]

reports and testify[ing] in court.[6]

Petipren opposed the motions for summary disposition, arguing that Jaskowski was not

the highest executive of a level of government and that Jaskowski had acted with an

improper motive, arresting Petipren because Jaskowski was prejudiced against Petipren

and his fans. The circuit court denied Jaskowski’s motion for summary disposition in

Petipren’s original suit, concluding that because Jaskowski had acted with a biased

motive, he had not acted within his executive authority as chief of police. On the record,

the circuit court explained, “I don’t think it’s acting in a Governmental function, I don’t

think it’s within the scope of authority of a Police Chief. I think it’s a personal vendetta,

someone who thinks there’s a Music Fair apparently and therefore immunity is not

5

Emphasis omitted.

6

The job description’s essential duties and responsibilities involve employment

decisions, administrative tasks, policy and procedural decisions, and the general authority

to “[m]ake[] decisions and take[] necessary actions.”

6

available to Rodney Jaskowski. That motion is denied.” The circuit court also denied

Jaskowski’s claim of absolute immunity in regard to Petipren’s counterclaims in the

second lawsuit.7

Jaskowski appealed each case as of right, disputing the circuit court’s application

of governmental immunity. The Court of Appeals consolidated the appeals and, in a

split, published opinion, affirmed, holding that “[w]hen a police chief acts as an ordinary

police officer—that is, when the nature of the act is outside the scope of his or her

executive duties—the chief is not entitled to absolute immunity simply because he or she

is also the police chief.”8 After noting that no binding Michigan case had considered

whether a police chief is entitled to absolute immunity when he or she undertakes actions

performed by ordinary police officers, the Court of Appeals construed the words

“executive authority,” as used in MCL 691.1407(5), to mean only those “‘tasks particular

to [the official’s] position as the “highest appointive official.”’”9 According to the Court

7

The circuit court likewise declined to dismiss Petipren’s intentional-infliction-of-

emotional-distress counterclaim under MCR 2.116(C)(10), finding an issue of fact

remained concerning whether Jaskowski’s conduct could be characterized as “extreme

and outrageous” and whether he acted in good faith as required by Odom. The circuit

court dismissed Petipren’s negligence and negligent-infliction-of-emotional-distress

counterclaims under MCR 2.116(C)(8), but it allowed Petipren to amend his

countercomplaint to state a claim of gross negligence, which he did. As a result, the

remaining claims to be resolved include Petipren’s claims of assault and battery and false

arrest and his counterclaims for intentional infliction of emotional distress and gross

negligence.

8

Petipren v Jaskowski, 294 Mich App 419, 432; 812 NW2d 17 (2011) (emphasis added).

9

Id. at 431, quoting Scozzari v City of Clare, 723 F Supp 2d 945, 967 (ED Mich, 2010).

In adopting Scozzari’s interpretation of “executive authority,” the Court of Appeals

rejected the reasoning of an unpublished Court of Appeals opinion, which held that “a

police chief’s ‘executive authority’ includes his duties as a high ranking executive as well

7

of Appeals, this interpretation, which it adopted from a federal district court decision,

“best reflects the legislative intent expressed in the words of [the statute].”10 The Court

of Appeals explained:

Although a police chief may occasionally perform the duties of an

ordinary police officer, the police chief is not acting within the scope of his

or her executive authority as the highest executive official in the police

department when doing so. Rather, the nature of the act is that of an

ordinary police officer. As an ordinary police officer, he would be entitled

to the immunity provided to governmental employees under MCL

691.1407(2) if all the statutory requirements were satisfied. Indeed, it

would lead to an illogical result to limit a plaintiff’s intentional-tort claims

arising from the conduct of a police officer in those cases in which the

police officer was also the police chief who was acting as an ordinary

police officer at the time he or she allegedly committed the tortious act.[11]

Given its understanding of the term “executive authority,” the Court of Appeals applied

the factors relevant to determining the scope of the actor’s executive authority, articulated

by this Court in American Transmissions, Inc v Attorney General,12 by considering only

that evidence related to Jaskowski’s high-level duties, as outlined in the essential-duties

as his ordinary duties as a police officer.” Lewkowicz v Poe, unpublished opinion per

curiam of the Court of Appeals, issued May 15, 2001 (Docket No. 216307), p 2. The

panel of the Court of Appeals addressing this case determined that Lewkowicz was

unpersuasive given that, in Lewkowicz, the police chief was directed to attend a city

council meeting “in his official capacity as police chief . . . .” Petipren, 294 Mich App at

431 (emphasis omitted).

10

Id.

11

Id. at 432-433.

12

American Transmissions, Inc v Attorney General, 454 Mich 135, 141; 560 NW2d 50

(1997), quoting Marrocco v Randlett, 431 Mich 700, 710-711; 433 NW2d 68 (1988).

8

section of the police chief’s job description.13 Because those duties “generally involve

policy, procedure, administration, and personnel matters,” the Court of Appeals

concluded that Jaskowski was not acting within his executive authority when he arrested

Petipren and that Jaskowski was, therefore, not entitled to absolute immunity under MCL

691.1407(5).14

We granted leave to appeal, “limited to the issue whether Chief of Police

Jaskowski is entitled to absolute immunity under MCL 691.1407(5).”15

II. STANDARD OF REVIEW

This Court reviews de novo a circuit court’s decision regarding a motion for

summary disposition.16 When a claim is barred by governmental immunity, summary

disposition is appropriate under MCR 2.116(C)(7).17 Under MCR 2.116(C)(7), the

moving party has the option of supporting its motion with affidavits, depositions,

13

Petipren, 294 Mich App at 427-429. The Court of Appeals recognized that the job

description also included a section setting forth the functional responsibilities of the

police department, which are equivalent to the duties of an ordinary police officer, and

that Jaskowski submitted an affidavit stating that his duties included those functional

responsibilities. However, the Court of Appeals dismissed the significance of this

evidence because “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.” Id.

at 432 n 6.

14

Id. at 429, 432-433.

15

Petipren v Jaskowski, 491 Mich 913 (2012).

16

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

17

Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998).

9

admissions, or other documentary evidence provided that the “substance or content” of

the supporting proofs is admissible as evidence.18 In reviewing a motion under MCR

2.116(C)(7), we accept the factual contents of the complaint as true unless contradicted

by the movant’s documentation.19 When the material facts are not in dispute, this Court

may decide whether a plaintiff’s claim is barred by immunity as a matter of law.20

This case requires us to interpret MCL 691.1407(5), raising an issue of statutory

interpretation that this Court reviews de novo.21 When construing a statute, this Court’s

obligation is to discern the Legislature’s intent as expressed in the statute’s plain

language.22 If the language is clear and unambiguous, the statute must be enforced as

written without judicial construction.23

III. ANALYSIS

Before the Michigan Legislature’s enactment of the GTLA, this Court’s

jurisprudence recognized the existence of governmental immunity for all levels of

government, including townships, cities, school districts, villages, and counties when

18

Maiden, 461 Mich at 119.

19

Id.

20

See Robinson v Detroit, 462 Mich 439, 445; 613 NW2d 307 (2000); see also Guider v

Smith, 431 Mich 559, 572; 431 NW2d 810 (1988) (noting a case should proceed to trial if

there is a question of fact that would affect the availability of immunity).

21

Odom, 482 Mich at 467.

22

Driver v Naini, 490 Mich 239, 246-247; 802 NW2d 311 (2011).

23

Id. at 247.

10

those subdivisions were engaged in a governmental function.24 Our common law has

also long recognized that certain individuals may enjoy immunity from tort liability,

historically granting immunity to governmental “officers, employees, and agents . . .

engaged in discretionary, as opposed to ministerial, acts which were within the scope of

their authority.”25 Over time, however, our caselaw muddled the parameters of

individual immunity by defining it with references to ultra vires acts and whether an

individual was engaged in the exercise of a governmental function.26

We thus endeavored to clarify the common law of individual immunity in Ross v

Consumers Power Co (On Rehearing), in which we distinguished between the immunity

available to lower-level employees and high-ranking officials. We modified the ultra

24

See Pohutski v City of Allen Park, 465 Mich 675, 682; 641 NW2d 219 (2002) (citation

omitted); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 605, 695; 363

NW2d 641 (1984).

25

Ross, 420 Mich at 626. Discretionary acts require “personal deliberation, decision, and

judgment,” whereas ministerial acts constitute “an obedience to orders or the

performance of a duty in which the individual has little or no choice.” Id. at 634. The

distinction between the two is that “the former involves significant decision-making,

while the latter involves the execution of a decision and might entail some minor

decision-making.” Id. at 635.

26

As we explained in Ross, “ultra vires activities are those which are unauthorized and

outside the scope of employment.” Id. at 631. In Ross, we criticized the ultra vires

approach because, under the state of the law at that time, the ultra vires approach granted

immunity to every public employee acting within the scope of employment regardless of

whether he or she was engaged in a ministerial or discretionary act. In Ross, we also

expressly disavowed the “governmental function” approach, which granted individual

immunity if the individual’s actions were not ultra vires and were within the scope of the

discharge of a governmental function. We explained that individual immunity could not

be defined in reference to simply whether the tortfeasor was engaged in a governmental

function. Id.

11

vires approach for lower-level employees and required them to show that they were not

only (1) acting during the course of their employment and acting or reasonably believed

they were acting, within the scope of their authority; but also that they were (2) acting in

good faith; and (3) performing discretionary, as opposed to ministerial acts.27 In

comparison, we identified certain high-ranking officials entitled to a broader grant of

immunity, holding that “judges, 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.”28 We, thus, retained an

approach similar to the ultra vires approach for high-ranking officials, providing absolute

immunity whenever high-ranking officials acted within the scope of their respective

authority.29 Then, two years after Ross, the Legislature amended the GTLA, as it relates

to the present dispute, by codifying Ross’s grant of absolute immunity at MCL

691.1407(5).30

With this historical context in mind, we turn to the language of MCL 691.1407(5),

which provides certain high-ranking officials with absolute immunity from tort liability,

to determine whether Jaskowski is entitled to absolute immunity. It states:

A judge, a legislator, and the elective or highest appointive executive

official of all levels of government are immune from tort liability for

27

Id. at 633-634.

28

Id. at 633.

29

In this regard, we disagree with the dissent’s characterization of Ross as rejecting the

ultra vires approach to individual absolute immunity.

30

See Odom, 482 Mich at 469 (explaining the legislative action post-Ross).

12

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.

To qualify for absolute immunity from tort liability an individual governmental

employee must prove his or her entitlement to immunity by establishing, consistently

with the statute’s plain language, (1) that he or she is a judge, legislator, or the 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.31 In the circuit

court, Petipren argued that Jaskowski was not the highest appointive executive official of

a level of government.32 On appeal, Petipren abandoned this argument, leaving the sole

issue before this Court as whether Jaskowski acted within the scope of his executive

authority when he arrested Petipren. To determine whether Jaskowski qualifies for

absolute immunity under MCL 691.1407(5) when performing the duties of an ordinary

police officer while serving as the highest appointive executive official of the village, we

examine the meaning of “executive authority” as interpreted in this state’s jurisprudence.

31

MCL 691.1407(5); see also Marrocco, 431 Mich at 710-711 (recognizing that

executive officials “are not immune from tort liability for acts not within their executive

authority”); Odom, 482 Mich at 479 (recognizing that entitlement to governmental

immunity must be established as an affirmative defense).

32

Contrary to Petipren’s arguments in the circuit court, caselaw recognizes that a chief of

police, as head of the police department, qualifies as the highest appointive executive

official of a level of government. See, e.g., Payton v Detroit, 211 Mich App 375, 394;

536 NW2d 233 (1995) (“[W]hen acting in his executive authority, the police chief of the

City of Detroit is absolutely immune from tort liability.”); Washington v Starke, 173

Mich App 230, 240-241; 433 NW2d 834 (1988) (holding that the highest executive in the

city’s police department was entitled to absolute immunity); Meadows v Detroit, 164

Mich App 418, 427; 418 NW2d 100 (1987) (holding that the chief of police was

absolutely immune from tort liability).

13

A. EXECUTIVE AUTHORITY

Petipren, like the Court of Appeals, asserts that Jaskowski engaged in activities

outside the scope of his executive authority when he arrested Petipren and is therefore not

entitled to absolute immunity. As the Court of Appeals acknowledged, no decision of

this Court has specifically considered whether the scope of a police chief’s executive

authority under MCL 691.1407(5) may include those activities also performed by

ordinary officers.33 Further, the GTLA does not define what it means to “act[] within the

scope of his or her . . . executive authority,” nor has this Court expressly defined the

parameters of the phrase. However, we have previously identified several factors as

relevant to the determination whether an action is within the scope of an executive

official’s authority. Specifically, we recognized in American Transmissions that

“[t]he determination whether particular acts are within their [executive]

authority depends on a number of factors, including the nature of the

specific acts alleged, the position held by the official alleged to have

performed the acts, the charter, ordinances, or other local law defining the

official’s authority, and the structure and allocation of powers in the

particular level of government.”[34]

33

Several decisions cited by the Court of Appeals considered whether conduct, such as

supervisory decisions, employment decisions, and public comments, fell within a police

chief’s executive authority. See Bennett v Detroit Police Chief, 274 Mich App 307, 313-

315; 732 NW2d 164 (2007); Washington, 173 Mich App at 241; Meadows, 164 Mich

App at 427. However, as the Court of Appeals acknowledged, none of these decisions

considered whether executive authority includes actions that might also be performed by

lower-level officers. For this reason, these cases do not directly address the issue

presented in the current case.

34

American Transmissions, 454 Mich at 141, quoting Marrocco, 431 Mich at 711.

14

This list of factors, while not exhaustive, demonstrates the type of objective inquiry into

the factual context that is necessary to determine the scope of the actor’s executive

authority.35 This objective inquiry does not include analysis of the actor’s subjective

state of mind.36 An official’s motive or intent has no bearing on the scope of his or her

executive authority.37

While the factors outlined in American Transmissions remain relevant to the

determination whether certain acts are within the scope of an executive’s authority, they

do not resolve the definitional issue regarding whether the Legislature intended

“executive authority” to include activities also performed by lower-level officials or, as

the Court of Appeals held, to include only duties exclusive to the elective or highest

appointive executive official’s position. To resolve this issue, we turn to the statute’s

plain language.

Again, MCL 691.1407(5) provides that, to claim absolute immunity, the highest

appointive executive official must “act[] within the scope of his or her . . . executive

authority.” We begin our analysis of the phrase “executive authority” by examining the

term’s plain and ordinary meaning.38 “Authority” is defined as “a power or right

35

Id. at 143 n 10.

36

Id. at 141-143 (recognizing that the Legislature did not provide a malevolent-heart

exception to the grant of absolute immunity contained in MCL 691.1407(5) and rejecting

a Court of Appeals decision that introduced concepts of intent and motive into the

absolute-immunity context).

37

See id.

38

See Driver, 490 Mich at 246-247.

15

delegated or given,” and “scope” is defined as the “extent or range of view, outlook,

application, operation, effectiveness . . . .”39 Taken together, the words indicate that a

highest appointive executive official’s scope of authority consists of the extent or range

of his or her delegated executive power.

In determining what the Legislature intended by the use of the term “executive,”

we are mindful of the principle that statutory words are to be “given meaning by [their]

context or setting.”40 In context, the words “executive authority” appear as the

counterpart to the statute’s reference to “judicial” and “legislative” authority.

Specifically, the statute grants immunity to certain high-level officials when they act

within the scope of their “judicial, legislative, or executive authority.” Because the words

are grouped together in a list, we assume those words were intended to have a related

meaning.41 By using the term “executive” in conjunction with the terms “judicial” and

“legislative,” the Legislature plainly referred to the axiomatic power division among the

three branches of government—legislative, executive, and judicial.42 This reference to

39

Random House Webster’s College Dictionary (2001); see also Backus v Kauffman (On

Rehearing), 238 Mich App 402, 409; 605 NW2d 690 (1999).

40

Tyler v Livonia Pub Sch, 459 Mich 382, 390-391; 590 NW2d 560 (1999) (“Contextual

understanding of statutes is generally grounded in the doctrine of noscitur a sociis: ‘[i]t is

known from its associates[.]’”); see also Hamed v Wayne Co, 490 Mich 1, 8; 803 NW2d

237 (2011) (“We read the statutory language in context and as a whole, considering the

plain and ordinary meaning of every word.”).

41

Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 533; 697 NW2d 895 (2005),

citing Third Nat’l Bank in Nashville v Impac Ltd, Inc, 432 US 312, 322; 97 S Ct 2307; 53

L Ed 2d 368 (1977).

42

See Const 1963, art 3, § 2 (“The powers of government are divided into three branches:

legislative, executive and judicial. No person exercising powers of one branch shall

16

the three branches of government parallels the statute’s earlier description of who may

claim absolute immunity, namely: “[a] judge, a legislator, and the elective or highest

appointive executive official of all levels of government . . . .” In both instances, the term

“executive” appears in MCL 691.1407(5) as a reference to the executive branch of

government, thereby referring to the authority exercised by individuals in that branch of

government. In a similar fashion, the statute envisions a legislator’s exercise of

legislative authority and a judge’s exercise of judicial authority. Nowhere does the

statute contain any indication that the “executive authority” exercised must be exclusive

to the elective or highest appointive official in order for that official to claim absolute

immunity.

We therefore hold that “executive authority” as used in MCL 691.1407(5) means

all authority vested in the highest executive official by virtue of his or her position in the

executive branch. In so concluding, we reject other possible interpretations of the term

“executive,” including the notion proposed by the Court of Appeals, Petipren, and the

dissent that it should be read as referring to high-level administrative or supervisory

functions particular to an executive’s office. That interpretation ignores the context in

which the term “executive” is used. In context, the term “executive authority” does not

contemplate whether the highest appointive executive official performed high-level

exercise powers properly belonging to another branch except as expressly provided in

this constitution.”); People v Salsbury, 134 Mich 537, 547-548; 96 NW 936 (1903) (“In

government ‘executive’ is distinguished from ‘legislative’ and ‘judicial;’ ‘legislative’

being applied to the organ or organs of government which make the laws, ‘judicial’ to

that which interprets and applies the laws, and ‘executive’ to that which carries them into

effect.”) (citations and quotation marks omitted).

17

duties exclusive to his or her position, but simply whether the official exercised authority

vested in the official by virtue of his or her role in the executive branch.43

In reaching the contrary conclusion, the Court of Appeals failed to undertake any

explication of the statute’s plain language and relied instead on a federal district court

decision, Scozzari v City of Clare.44 In that case, a city police chief sought absolute

immunity under MCL 691.1407(5) from numerous tort claims resulting from a shooting

death that had occurred when the chief attempted to arrest the decedent. The federal

court rejected the police chief’s claim of absolute immunity, reasoning that “[t]he Chief

does not address the fact that he appears to have been acting in his capacity as an officer

on patrol, rather than performing any tasks particular to his position as the ‘highest

appointive official.’”45 In our view, Scozzari is devoid of any persuasive value: the court

engaged in no statutory analysis and simply dismissed the police chief’s assertion of

absolute immunity in light of his failure to address the implications of the fact that he had

acted as an ordinary officer.46 Further, the implicit holding of Scozzari, that absolute

43

Contrary to the dissent’s suggestion, in adopting this construction of the term

“executive authority,” we do not discard the factors discussed in American

Transmissions, 454 Mich at 141. Our holding today merely clarifies that conduct is not

excluded from the scope of an official’s executive authority simply because it is not

exclusive to the official’s position. Indeed, it is the dissent that effectively disregards

these factors by advancing an interpretation that there is some “specific and limited

subset” of “truly executive” authority.

44

See Petipren, 294 Mich App at 431-432, discussing Scozzari, 723 F Supp 2d at 967.

45

Scozzari, 723 F Supp 2d at 967.

46

Id. In this regard, we agree with the Court of Appeals dissent’s criticism of the

majority’s reliance on Scozzari, because, in the dissent’s words, the “pivotal basis of the

[Scozzari] court’s holding was that the defendant [unlike Jaskowski] failed to address

18

immunity is only available when an official performs acts unique to his or her position as

the highest executive official, is detached from the plain language of the statute, as we

have previously explained. In any case, Scozzari is a decision of a lower federal court,

and we are not bound to follow it.47

The Court of Appeals also erroneously justified its holding on the basis of what it

perceived as an “illogical result.” According to the Court of Appeals, it would be

illogical to confer absolute immunity on a police chief who was acting as an ordinary

officer because an ordinary officer engaged in the same conduct would be entitled only to

the qualified immunity offered by MCL 691.1407(2) or, in the case of an intentional tort,

the common-law immunity described in Ross.48 Yet this outcome is exactly what the

whether his authority extended to those also exercised by a patrol officer.” Petipren, 294

Mich App at 436 n 3 (MURRAY, P.J., dissenting). In other words, Scozzari is readily

distinguishable from the instant matter.

47

Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).

48

Ross, 420 Mich 567. In Odom, this Court summarized the availability of immunity for

lower-level employees. We explained that, in cases of negligence, to qualify for

immunity under MCL 691.1407(2), the governmental employee must show:

(a) the individual was acting or reasonably believed that he was

acting within the scope of his authority,

(b) the governmental agency was engaged in the exercise or

discharge of a governmental function, and

(c) the individual’s conduct [did not] amount[] to gross negligence

that was the proximate cause of the injury or damage. [Odom, 482 Mich at

479-480.]

In comparison, we recognized that immunity is available to lower-level employees

against claims of an intentional tort if the employee can satisfy the common-law

immunity described in Ross by showing the following:

19

Legislature intended when it distinguished between the absolute immunity available to

those actors at the highest levels of government and the lesser immunity available to

those actors who are lower-level employees.49 While it is true that lower-level actors and

high-ranking officials may possess some overlapping authority and, at times, engage in

the same governmental conduct, MCL 691.1407(5) includes no indication that the

absolute immunity granted to high-ranking officials is not absolute when their authority

encompasses conduct that might also be performed by a lower-level employee. To adopt

the Court of Appeals’ understanding of executive authority would eviscerate the

Legislature’s clear intent to completely insulate individuals at the highest levels of

(a) The acts were undertaken during the course of employment and

the employee was acting, or reasonably believed that he was acting, within

the scope of his authority,

(b) the acts were undertaken in good faith, or were not undertaken

with malice, and

(c) the acts were discretionary, as opposed to ministerial. [Id. at 480,

discussing Ross, 420 Mich at 633-634.]

49

The dissent effectively eviscerates these distinct levels of protection by reading MCL

691.1407(2) and MCL 691.1407(5) together to mean that high-level officials are merely

entitled to qualified immunity if they are not acting within their limited subset of high-

level authority. The dissent’s interpretation, however, is not supported by a reading of

subsections (2) and (5) together, but rather hinges entirely on the premise that “executive

authority” under subsection (5) includes only a subset of high-level duties. Once this

premise is rejected, as it must be given the plain language of subsection (5), there is

nothing in the language of either subsection (2) or subsection (5), singly or together, to

indicate that a high-level official is entitled to only qualified immunity for conduct

outside the supposed subset of high-level duties. Regarding this point, we disagree with

the dissent’s suggestion that we have not given its interpretation a “faithful reading.” We

have simply concluded that the dissent’s interpretation does not adhere to the plain

language of the statute.

20

government from tort liability when they are acting within the scope of their official

authority. While the Court of Appeals viewed this result as illogical, the propriety of the

Legislature’s decision to treat individuals differently on the basis of their official

positions is a question of policy for the Legislature, not this Court.50

Accordingly, the Court of Appeals erred when it interpreted “executive authority”

to include only those high-level tasks exclusive to the official’s position. Rather, we

hold, consistent with the plain meaning of “executive authority,” that the highest

appointive executive official is entitled to absolute immunity under MCL 691.1407(5)

even when performing the acts of a lower-level employee if those actions are within the

authority vested in the official by virtue of his or her role as an executive official.

B. APPLICATION

Our analysis does not end with our determination that the term “executive

authority” in MCL 691.1407(5) refers to all those powers vested in the highest executive

official by virtue of his or her role as an executive official, which may also include those

functions performed by lower-level employees. Because the specific acts alleged involve

Jaskowski’s arrest of Petipren, we consider whether Jaskowski’s executive authority

actually included the ability to conduct an arrest. This inquiry requires consideration of

50

See Robertson v DaimlerChrysler Corp, 465 Mich 732, 759; 641 NW2d 567 (2002)

(“[The] judicial role precludes imposing different policy choices than those selected by

the Legislature . . . .”) (quotation marks and citation omitted); Gilliam v Hi-Temp Prod,

Inc, 260 Mich App 98, 109; 677 NW2d 856 (2003) (“The fact that a statute appears to be

impolitic, unwise, or unfair is not sufficient to permit judicial construction. The wisdom

of a statute is for the determination of the Legislature and the law must be enforced as

written.”).

21

the factors articulated in American Transmissions, including “‘the nature of the specific

acts alleged, the position held by the official alleged to have performed the acts, the

charter, ordinances, or other local law defining the official’s authority, and the structure

and allocation of powers in the particular level of government.’”51

In this case, there is no factual dispute regarding the duties Jaskowski’s position

required him to perform or that, by virtue of his position as chief of police, Jaskowski

was also a police officer, meaning that he possessed the power of any ordinary officer to

conduct an arrest.52 By statute, village police officers are vested “with authority

necessary for the preservation of quiet and good order in the village.”53 As officers

charged with the preservation of public peace, village police officers possess statutory

authority to conduct an arrest.54 As chief of police, Jaskowski was also charged with the

51

American Transmissions, 454 Mich at 141, quoting Marrocco, 431 Mich at 711.

Notably, on the basis of its erroneous understanding of the term “executive authority,”

the Court of Appeals wrongly disregarded all the evidence relevant to this inquiry except

for the essential duties of Jaskowski’s job description.

52

Petipren recognizes that Jaskowski is the chief of police, and he does not challenge the

accuracy of the police chief job description or the veracity of Jaskowski’s affidavit

describing his obligations as chief of police.

53

MCL 70.14. They are similarly vested “within the village . . . with all the powers

conferred upon sheriffs for the preservation of quiet and good order . . . .” MCL 70.16.

54

MCL 70.14 (authorizing village police to “suppress . . . disturbances, and breaches of

the peace,” and to “apprehend upon view any person found violating a state law or village

ordinance in a manner involving a breach of the peace”); MCL 764.15(1) (describing the

circumstances in which a “peace officer” may conduct an arrest without a warrant); see

also People v Bissonette, 327 Mich 349, 356; 42 NW2d 113 (1950) (defining the term

“peace officer” as generally including “sheriffs and their deputies, constables, marshals,

members of the police force of cities, and other officers whose duty is to enforce and

preserve the public peace”) (quotation marks and citation omitted).

22

duty to “see that all the ordinances and regulations of the council, made for the

preservation of quiet, and good order, and the protection of persons and property, are

promptly enforced.”55

In addition to this statutory authority to conduct an arrest, Jaskowski presented to

the circuit court his job description, as provided to him by the Port Sanilac Village

Council, detailing his duties and responsibilities. Of particular relevance are the sections

of the job description describing the functional responsibilities of the police department,

which include “[m]aintenance of law and order in the Village of Port Sanilac” and “[t]he

enforcement of all laws of the United States, the State of Michigan, and all ordinance of

such law, and ordinances of the Village of Port Sanilac.” Most significantly, these

responsibilities also include a duty to “[p]reserve the peace . . . , control public

gatherings,” “[r]eceive and process complaints by citizens,” and “arrest offenders . . . .”56

Similarly, in an undisputed affidavit, Jaskowski quotes the job description and

avers that his duties included patrolling the streets of the village and doing the following

in the course of his patrolling:

55

MCL 70.15.

56

Emphasis added. The job description is rife with additional indications that in the

village of Port Sanilac, the chief of police is expected to partake in those functions of a

typical patrol officer. For example, the chief is expected to use guns, batons, handcuffs,

police radios, Tasers, radar, and patrol car computers and aggressively operate a patrol

car in emergencies. The job description also specifically advises that “physical

intervention techniques may be necessary” and that the chief of police needs to be able to

run and lift 300 pounds. The chief of police is also said to have a “[h]igh risk” of

exposure to bloodborne pathogens, stemming from frequent and direct contact with

individuals who might be carriers.

23

“[o]bserve 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. . . . Receive and process complaints by citizens,

arrest offenders, prepare reports and testify in court.”[57]

Taking this evidence as a whole, there is no genuine issue of material fact with

regard to whether Jaskowski possessed the authority to conduct an arrest and act for the

preservation of peace in his official capacity as chief of police. Where, as here, the

highest appointive executive official acts within the authority vested in the official by

virtue of his or her executive position and there are no questions of material fact, that

official is entitled to absolute immunity as a matter of law.

The Court of Appeals erroneously affirmed the circuit court’s denial of summary

disposition when it incorrectly construed the term “executive authority” as including only

high-level tasks exclusive to an executive’s position. The Court of Appeals thereby

disregarded all the evidence relevant to this inquiry, except for the essential duties listed

in the job description for the position of chief of police. However, for reasons we have

explained, there is no basis in the language of MCL 691.1407(5) for concluding that the

highest executive official acts outside the scope of his or her executive authority when

undertaking a task performed by lower-level employees, which is also undisputedly a

task he or she is authorized to perform. That those activities might also be undertaken by

lower-level employees does not alter the analysis for determining the scope of an

official’s executive authority.

57

Emphasis added.

24

The circuit court’s reason for denying summary disposition—that Jaskowski acted

with personal animus—is also erroneous. Petipren implicitly resurrects this argument on

appeal by offering extensive discussion of the circumstances surrounding his arrest, but

as we have made clear, an actor’s intent and motivation have no bearing on the scope of

his or her executive authority under MCL 691.1407(5).58 In sum, because the power to

arrest unquestionably falls within the scope of Jaskowski’s executive authority under

MCL 691.1407(5), as a matter of law, Jaskowski is absolutely immune from tort liability

stemming from Petipren’s arrest, and the lower courts erred by denying Jaskowski’s

motions for summary disposition.

IV. RESPONSE TO THE DISSENT

The dissent’s main concern with our holding is that it “remov[es]” the statutory

language from its context and returns Michigan’s approach to individual absolute

immunity to an “ultra vires” test that grants immunity based on the official’s high-level

status. However, in formulating its preferred holding, that the absolute immunity

provided for under MCL 691.1407(5) is limited to “a specific subset of authority,” the

dissent reads “executive authority” in a manner isolated from the context in which it is

used. By focusing only on the terms that directly modify the word “authority,” the

dissent ignores the necessary parallel between the official’s position and his or her

judicial, legislative, or executive authority and thereby fails to afford meaning to every

word in the statute. Further, by overlooking the term “executive” as a clear reference to

the authority exercised by those in the executive branch of government and instead

58

See American Transmissions, 454 Mich at 143-144.

25

defining it as a specific subset of high-level duties related to “administrative or

managerial responsibilit[ies],” the dissent reads additional requirements into the statute

that do not exist. It is therefore the dissent that has “transform[ed]” the grant of absolute

immunity to something other than the official’s “executive authority” as intended by the

Legislature.59

Similarly unpersuasive is the dissent’s complaint that our holding grants absolute

immunity to high-level officials simply because they are “cloaked with the title of a high-

level executive.” This accusation plainly oversimplifies our holding; any high-level

executive official acting outside his or her executive authority, as we have defined it, is

not entitled to absolute immunity. The dissent also protests that we have returned

Michigan’s approach to individual absolute immunity to an “ultra vires” test, which

according to the dissent “was rejected by Ross . . . and, subsequently, the

Legislature . . . .” However, a closer reading of Ross reveals that this Court merely

criticized that approach and rejected it as to lower-level employees, not high-level

59

In further support of its interpretation, the dissent proposes that the Legislature’s

codification of absolute immunity after our decision in Ross evinces a legislative intent to

protect only a subset of high-level authority involving broad decision-making power.

However, it is a fundamental principle of statutory interpretation that the Legislature

speaks through the language used, Driver, 490 Mich at 246-247, and, as explained, the

statutory language at issue does not protect only a subset of executive authority. Indeed,

it is not our role to speculate whether the Legislature adopted the reasoning of the

authorities that the Ross Court cited in support of its holding. Given the plain language

of MCL 691.1407(5), it is thus irrelevant whether the members of the Ross Court

intended that absolute immunity extend only to a subset of high-level decision-making

authority. Therefore, the dissent’s reliance on Ross to support its interpretation of

“executive authority” is misplaced.

26

judicial officers, legislators, and executive officials.60 To the extent it can be said that the

Legislature codified the absolute individual immunity articulated in Ross, it did not reject

the ultra vires test. Indeed, given the plain language of MCL 691.1407(5), the

Legislature’s codification of absolute immunity with regard to high-level officials is

consistent the ultra vires approach and is precisely necessary to protect high-level

officers’ unfettered decision-making.61

In short, there is no support in the law for the dissent’s characterization of our

holding as adopting a rule of individual absolute immunity that radically departs from the

statutory language and that has supposedly been rejected by the Legislature. Rather, it is

the dissent’s view that would depart from the statutory language and it is the dissent’s

view that would adopt a test not recognized anywhere in Michigan law. Indeed, our

review of the caselaw reveals no authority, aside from the Court of Appeals decision in

this case, confining individual absolute immunity to a subset of high-level authority.

60

Although the dissent contends that Ross “rejected” the ultra vires approach, this

assertion has not been supported with citation to an express statement to this effect from

Ross. At most, Ross indicated that the ultra vires approach had “its drawbacks.” Ross,

420 Mich at 631.

61

The dissent claims that our definition of “executive authority” as encompassing “all

authority” “extends absolute immunity beyond its purpose . . . .” However, the

unworkability of the dissent’s approach demonstrates exactly why the dissent’s

interpretation would hinder “‘unfettered governmental decision-making,’” Ross, 420

Mich at 632 (citation omitted), and why our holding is entirely consistent with the

purpose of absolute immunity. Mainly, to adopt the dissent’s definition of “executive

authority” as including only a “specific subset of authority,” would place officials in the

untenable position of continually attempting to discern which of their executive actions

are somehow more executive than others so as to fall into the protected “subset” of

executive authority. In the face of that uncertainty, high level officials would

undoubtedly be constrained in their decision-making.

27

V. CONCLUSION

The term “executive authority,” as used in MCL 691.1407(5), encompasses all

authority vested in the highest appointive executive official of a level of government by

virtue of his or her role in the executive branch, including the authority vested in the

official to engage in tasks that might also be performed by lower-level employees. Under

the statute’s plain terms, when the highest appointive executive official of a level of

government acts within the scope of his or her executive authority, the official is entitled

to absolute immunity. Because there is no genuine issue of material fact that Jaskowski’s

executive authority encompassed the authority to preserve the peace and conduct an

arrest, Jaskowski is absolutely immune under MCL 691.1407(5) from tort liability arising

from Petipren’s arrest. For this reason, we reverse the Court of Appeals’ conclusion to

the contrary and remand this matter to the circuit court for entry of judgment in favor of

Jaskowski in Sanilac Circuit Court Docket No. 09-032990-NO, for entry of judgment in

favor of Jaskowski on Petipren’s counterclaims in Sanilac Circuit Court Docket No. 10-

033374-NO, and for further proceedings not inconsistent with this opinion.

Mary Beth Kelly

Robert P. Young, Jr.

Brian K. Zahra

28

STATE OF MICHIGAN

SUPREME COURT

THOMAS J. PETIPREN,

Plaintiff-Appellee,

v No. 144142

RODNEY JASKOWSKI,

Defendant-Appellant.

and

VILLAGE OF PORT SANILAC,

Defendant.

RODNEY JASKOWSKI,

Plaintiff/

Counterdefendant-Appellant,

v No. 144143

THOMAS J. PETIPREN,

Defendant/

Counterplaintiff-Appellee.

CAVANAGH, J. (dissenting).

In this case, this Court must decide what the Legislature determined to be the

appropriate balance between the public interest in ensuring that certain governmental

actions are performed with independence and without fear of liability on one hand, and,

on the other hand, ensuring that victims of tortious actions are compensated when certain

governmental employees commit a tort. Specifically, this Court is asked to decide

whether a chief of police, Rodney Jaskowski, who allegedly engaged in tortious conduct

against Thomas Petipren while performing the duties of an ordinary police officer is

nevertheless entitled to absolute immunity from tort liability under MCL 691.1407(5),

simply by virtue of his status as the highest appointive executive official of a level of

government.

I believe that the majority errs by concluding that the phrase “executive authority”

refers to all authority vested in the elective or highest appointive executive official by

virtue of his or her position in the executive branch. In my opinion, the majority’s

interpretation erroneously reads the phrase “executive authority” as coextensive with the

phrase “executive branch” as used in the Michigan Constitution and, in doing so, not only

fails to give meaning to every word in the statute but also effectively grants absolute

immunity solely on the basis of an official’s status as a high-level executive, regardless of

the nature of the conduct in which the official was engaged. Contrary to the majority

position, I would hold that the word “executive” within the phrase “executive authority”

refers to 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. Because I

believe that the majority’s approach fails to give effect to the Legislature’s intent and

extends the scope of the protection of absolute immunity further than the Legislature

prescribed, I respectfully dissent.

2

I. A BRIEF HISTORY OF INDIVIDUAL IMMUNITY FOR PUBLIC EMPLOYEES

Suits for monetary damages generally serve dual purposes: to compensate victims

of wrongful actions and to discourage conduct that might result in liability. Forrester v

White, 484 US 219, 223; 108 S Ct 538; 98 L Ed 2d 555 (1988). Difficulty arises,

however, when public employees are exposed to tort liability. Id. This is because

government officials are expected to make decisions that must be “informed by

considerations other than the personal interests of the decisionmaker,” yet such decisions

will often have adverse effects on others. Id. As a result, although the threat of monetary

damages might encourage public officials to lawfully perform their duties in an

appropriate manner, the threat of liability might also “inhibit officials in the proper

performance of their duties.” Id. Recognition of these issues has led jurisdictions,

including Michigan, to adopt various forms of governmental immunity from tort liability.

Id.

Michigan’s approach to individual immunity for governmental employees has its

historical roots in the common law. Robinson v City of Lansing, 486 Mich 1, 5; 782

NW2d 171 (2010). After this Court partially abolished common-law governmental

immunity in 1961, the Legislature responded by enacting the governmental tort liability

act (GTLA), MCL 691.1401 et seq., to “restor[e] immunity for municipalities and

preserv[e] . . . protection for the state and its agencies.” Id. See, also, Ross v Consumers

Power Co (On Rehearing), 420 Mich 567, 605; 363 NW2d 641 (1984). The GTLA,

however, was silent regarding under what circumstances, and to what extent, officers,

agents, and employees could be held responsible for their tortious acts. Ross, 420 Mich

at 596, 628. Given the divided, confusing, and often irreconcilable caselaw on the

3

subject, id. at 596, Ross undertook the almost impossible task of attempting to clarify

more than a century’s worth of judicial and legislative commentary on governmental

immunity, including clarifying the judicial debate regarding liability with respect to

individual governmental employees.

With respect to individual liability, Ross explained that previous opinions of this

Court had “obfuscated the precise parameters of individual immunity,” noting that in

divided decisions the Court had set forth differing approaches to the issue. Ross, 420

Mich at 629-630. In one case, the end result was that employees were immune from tort

liability “unless they had been engaged in ultra vires activities.” Id. at 629, citing Bush v

Oscoda Area Sch, 405 Mich 716; 275 NW2d 268 (1979). In another case, members of

the Court defined the “parameters of individual immunity with reference to whether the

tortfeasor was engaged in the exercise or discharge of a governmental function.” Ross,

420 Mich at 631. See, also, id. at 629-630, citing Lockaby v Wayne Co, 406 Mich 65;

276 NW2d 1 (1979). Rejecting the formulations of both approaches, this Court explained

that the governmental-function approach blurred the distinction between individual and

governmental immunity, Ross, 420 Mich at 629-630, while the ultra vires component of

individual immunity, which examined whether the acts were “unauthorized and outside

the scope of employment,” also had its “drawbacks,” id. at 631. See, also, Richardson v

Jackson Co, 432 Mich 377, 387; 443 NW2d 105 (1989) (defining “ultra vires” activity as

an “activity that the governmental agency lacks legal authority to perform in any

manner”). This was because the formulation of the ultra vires approach at the time of

Ross broadly extended immunity to “every public official, employee, and agent whenever

4

they engage[d] in [any] authorized act[],” which was “not justified by either prior case

law or present-day realities.” Ross, 420 Mich at 631.

Persuaded that Michigan’s then existing framework regarding individual immunity

was inept and in need of clarification, Ross adopted the approach to individual immunity

that it believed best reflected the Legislature’s intent. Id. at 596, 625-626, 635. The

adopted approach was similar to that of other jurisdictions, which provided different

levels of immunity depending on the function of the officer. Id. at 632-634. Under this

framework, “judges, legislators, and the highest executive officials of all levels of

government are absolutely immune from all tort liability,” as long as they are acting

within their respective “judicial, legislative, or executive authority.” Id. at 633. In

contrast, “[l]ower level officials, employees, and agents are immune from tort liability”

only if (1) the act was taken during the course of the official’s, employee’s, or agent’s

employment and the official, employee, or agent was acting, or reasonably believed he or

she was acting, within the scope of his or her authority, (2) the act was done in good

faith, and (3) the act was discretionary rather than ministerial in nature. Id. at 633-634.

The justification for treating employees differently on the basis of their official functions

was explained by Ross as follows:

It is assumed through the broad grant of immunity to certain public

employees that these officials and, therefore, their governmental agencies,

will not be intimidated nor timid in the discharge of their public duties.

Although absolute immunity may be necessary for unfettered governmental

decision-making, courts have been reluctant, understandably, to extend its

protection beyond select public employees who are delegated policy-

making powers.

* * *

5

* * * The policy which only provides a limited immunity to lower

level executive officials, unlike the justifications for absolute immunity,

reflects a recognition that official immunity should not shield malicious or

intentionally unlawful behavior when the actor is not engaged in broad,

essential governmental decision-making. Holding these public servants

liable does not hamper or intimidate them in the faithful discharge of their

duties since they are responding to established administrative guidelines,

regulations and informal policy. It is assumed, therefore, that an

unreasonable burden does not fall on an administrative system when courts

hold lower level executive employees liable for their acts performed in bad

faith. [Id. at 632-633, quoting Littlejohn & DeMars, Governmental

Immunity After Parker and Perry: The King Can Do Some Wrong, 1982

Det C L Rev, 1, 27-28 (quotation marks omitted).]

Although Ross retained the traditional view that no individual immunity existed

for ultra vires acts, Ross, 420 Mich at 631, 634, Ross also made clear that, under its

approach, individual immunity was “obvious[ly] . . . far less than that afforded [to]

governmental agencies,” which were broadly granted immunity from tort liability

whenever the agency engaged in a mandated or authorized activity—i.e., an activity that

was not “ultra vires.” Id. at 635 (emphasis added). See, also, id. at 620; MCL

691.1407(1); MCL 691.1401(b).

Shortly after Ross was decided, the Legislature responded by enacting 1986 PA

175, which, among other things, addressed individual immunity for governmental

employees. With slight modifications, the Legislature codified Ross’s standard with

respect to judges, legislators, and specific executive officials, thus rendering those

officials “immune from tort liability” when acting within the scope of their respective

authority. MCL 691.1407(5); American Transmissions, Inc v Attorney General, 454

Mich 135, 139-140; 560 NW2d 50 (1997). However, the Legislature altered Ross’s

articulation of qualified immunity as it related to the negligent acts of what Ross referred

6

to as “lower level” officials, employees, and agents.1 Specifically, in addressing

individual immunity from tort liability for public employees, the Legislature enacted the

following framework:

(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 is

immune from tort liability for an injury to a person or damage to property

caused by the officer, employee, or member while in the course of

employment or service or caused by the 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.

(3) Subsection (2) does not alter the law of intentional torts as it

existed before July 7, 1986.

* * *

(5) A judge, a 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

1

See Odom v Wayne Co, 482 Mich 459, 471; 760 NW2d 217 (2008), wherein a majority

of this Court held that the Legislature retained Ross’s standard with respect to intentional

torts, but, in enacting MCL 691.1407(2) and (3), modified Ross’s standard with respect to

negligent acts. Thus, under the majority opinion in Odom, Ross’s standard applies to

alleged intentional torts, whereas the standard articulated in MCL 691.1407(2) applies to

alleged negligence.

7

the scope of his or her judicial, legislative, or executive authority. [MCL

691.1407 (emphasis added).]

Accordingly, in both MCL 691.1407(2) and (5), the Legislature indicated that

certain governmental officers and employees are “immune from tort liability” if specific

conditions are met. Under MCL 691.1407(2), an officer or employee must act within the

“scope of his or her authority” and meet other conditions, whereas, under MCL

691.1407(5), a judge, legislator, or specific high-level executive official is only entitled

immunity from tort liability if the person is “acting within the scope of his or her judicial,

legislative, or executive authority.” (Emphasis added.) Because the statute does not

define the latter phrase, and no opinion from this Court has expressly considered this

issue, this Court must determine the meaning of the phrase that best effectuates the

Legislature’s intent.2 Jennings v Southwood, 446 Mich 125, 136; 521 NW2d 230 (1994).

II. ANALYSIS

A. THE MAJORITY’S INTERPRETATION OF MCL 691.1407(5)

As previously noted, I cannot join the majority’s analysis, which, in my opinion,

fails to give effect to every word in the statute, and broadens the scope of absolute

immunity beyond the intent of the Legislature.3 Under MCL 691.1407(5), a “judge, a

2

The majority asserts that this dissent adopts a view that is not recognized in Michigan

law and implicitly accuses this dissent of citing no caselaw in support of its position. The

majority’s assertions, however, are rather curious, given that even the majority

acknowledges that no decision of this Court has specifically addressed the issue presented

in this case. Indeed, I question whether this Court would have granted leave to appeal if

binding, on-point authority existed.

3

Although this Court has yet to expressly address whether a chief of police is an

“elective or highest appointive executive official of all levels of government” for

purposes of immunity from tort liability under MCL 691.1407(5), as noted by the

majority, Petipren has effectively abandoned his previous argument that Jaskowski does

8

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.” (Emphasis added.) Thus, certain high-level executive officials are entitled to

immunity from tort liability if the executive official acts within the scope of his or her

executive authority.

The majority’s analysis, however, begins by removing the phrase “scope of his or

her . . . authority” from its context. Specifically, rather than considering whether the

statutory references to “judicial,” “legislative,” and “executive” modify the phrase

“authority”—in order to describe a specific and limited subset of each public official’s

authority that the official must act “within the scope of” to be entitled to immunity—the

majority focuses on the phrases “judicial,” “legislative,” and “executive” to read them as

a mere reference to the axiomatic power divide among the three branches of government.

However, the language chosen by the Legislature did not expressly grant immunity from

tort liability for actions taken by the highest executive official by virtue of his or her

position in the executive branch. Instead, the Legislature granted immunity from tort

liability for those actions that fall “within the scope of” an executive official’s “executive

authority.” As a result, the majority’s interpretation transforms the statutory reference to

“executive authority” into a reference to the “executive branch of government.” In my

opinion, this is erroneous.

not fall under this category. See People v Bean, 457 Mich 677, 685 n 13; 580 NW2d 390

(1998). As a result, I will assume that this standard was met for purposes of this appeal.

9

In reading the phrase “executive authority” as coextensive with the phrase

“executive branch” as it is used in the Constitution, the majority’s analysis results in a

reading of the statute that is contrary to the well-established maxim that this Court

presumes that every word in a statute should be given meaning. In re MCI Telecom

Complaint, 460 Mich 396, 414; 596 NW2d 164 (1999). See, also, Robinson, 486 Mich at

17-18. Specifically, by holding that the reference to “legislative,” “judicial,” and

“executive” merely parallels the statute’s earlier reference to who is entitled to assert

immunity, the majority interprets the statute as granting an official immunity from tort

liability for all actions “within his or her authority.” Thus, the majority’s interpretation

renders the statutory references to “judicial,” legislative,” and “executive” within the

phrase “judicial, legislative, or executive authority” mere reiterations, which, “by

definition, creates surplus language.” Odom v Wayne Co, 482 Mich 459, 471; 760 NW2d

217 (2008).4 See, also, In re MCI, 460 Mich at 414 (“[A] court should avoid a

construction that would render any part of the statute surplusage or nugatory.”). Had the

Legislature actually intended to grant judges, legislators, and specified high-level

executives absolute immunity from tort liability for all actions “within the scope of his or

4

Indeed, had the Legislature intended the majority’s interpretation—i.e., that the

Legislature was merely referring to the axiomatic power divide between the three

branches of government and, thus, the phrase “executive authority” encompasses all

authority vested in the executive by virtue of his or her position within the executive

branch—there would have been no need for the statute to refer to a public official’s

“judicial, legislative, or executive authority” because, as the majority notes, the

Constitution expressly provides that “[n]o person exercising powers of one branch shall

exercise powers properly belonging to another branch” of government. Const 1963, art 3,

§ 2.

10

her authority” generally, the Legislature could have easily and clearly stated that, as it did

in other provisions of the GTLA. See, e.g., MCL 691.1407(2) (providing that officers

and employees are immune from tort liability if, among other things, the officer or

employee is “acting within the scope of his or her authority”).

Although this Court has not previously defined the phrase “executive authority,”

and thus has not expressly determined whether the phrase “executive authority” is limited

to a subset of a high-level official’s authority or encompasses all authority vested in the

official, this Court has explained that executive officials are not absolutely immune from

tort liability for those acts that do not fall within the scope of the elective or highest

appointive executive official’s “executive authority.” American Transmissions, 454

Mich at 140-141, citing Marrocco v Raudlett, 431 Mich 700, 710-711; 433 NW2d 68

(1988). This Court has also provided lower courts with a nonexhaustive list of objective

factors to consider in determining whether an act falls within the scope of the executive

official’s executive authority. American Transmissions, 454 Mich at 141, 143 n 10,

citing Marrocco, 431 Mich at 711.5 The majority’s broad interpretation of the phrase

5

Those factors include

the nature of the specific acts alleged, the position held by the official

alleged to have performed the acts, the charter, ordinances, or other local

law defining the official’s authority, and the structure and allocation of

powers in the particular level of government. [American Transmissions,

454 Mich at 141 (citation and quotation marks omitted).]

Although American Transmissions, 454 Mich at 141 n 8, noted that a majority of this

Court had previously opined that the inquiry into whether actions are within a public

official’s executive authority is analogous to the question whether lower-level officials or

governmental agencies are engaged in governmental functions, as previously noted, Ross

asserted that the immunity granted to individuals is “far less” than that afforded to

11

“executive authority,” however, effectively discards the nonexhaustive list of factors in

favor of one inquiry: whether the official was authorized to perform the act—whether by

statute or otherwise, including “authorization” under a job description or an affidavit

provided by the executive. By granting immunity for any authorized act, the majority’s

analysis returns Michigan’s approach to immunity, at least as it pertains to high-level

executives, to a formulation akin to the ultra vires approach that was rejected by Ross,

420 Mich at 631, 633, and, subsequently, by the Legislature when it adopted statutory

language that limits absolute immunity to only those actions that fall within the scope of a

high-level executive official’s executive authority and, thus, refused to extend absolute

immunity to such officials whenever they engage in any authorized act. See In re MCI,

460 Mich at 415 (“Where the Legislature has considered certain language and rejected it

in favor of other language, the resulting statutory language should not be held to

explicitly authorize what the Legislature explicitly rejected.”).

B. AN ALTERNATIVE APPROACH TO MCL 691.1407(5)

In my opinion, the statutory language supports the notion that the Legislature did

not, as the majority opines, intend to afford absolute immunity for all actions within a

judge, legislator, or high-level executive’s authority, generally. Instead, by modifying the

word “authority” with the words “judicial, legislative, or executive” the Legislature only

intended to grant absolute immunity from tort liability for harm resulting from activities

governmental agencies, Ross, 420 Mich at 635. Further, Ross rejected “defin[ing] the

parameters of individual immunity with reference to whether the tortfeasor was engaged

in the exercise or discharge of a governmental function” because that approach “blurr[ed]

two separate inquires.” Id. at 630-631.

12

that are truly executive, judicial, or legislative in nature. See Merriam-Webster’s

Collegiate Dictionary, Tenth Edition (1999) (defining “judicial,” in part, as “of or

relating to a judgment, the function of judging, the administration of justice, or the

judiciary”; defining “legislative,” in part, as “having the power or performing the

function of legislating”; and defining “executive,” in part, as “having administrative or

managerial responsibility”); Ross, 420 Mich at 632-633 (explaining that the justification

for affording absolute immunity to certain officials is to protect unfettered decision-

making by those “engaged in broad, essential governmental decision-making”) (citation

and quotation marks omitted). Thus, in accordance with the notion that this Court

presumes that every word within a statute has some meaning, People v McGraw, 484

Mich 120, 126; 771 NW2d 655 (2009), I believe that the Legislature, in codifying Ross’s

grant of absolute immunity for those officials acting within their respective judicial,

legislative, and executive authorities, intended to describe a specific and limited subset of

a judge’s, legislator’s, or high-level executive’s authority that those officials must be

“acting within the scope of” to obtain the benefit of immunity from tort liability. See

Ross, 420 Mich at 632, citing Littlejohn & DeMars, 1982 Det C L Rev at 25-27.6 In my

6

Although I would only consider the scope of the immunity as applied to the facts of the

present case, see Marrocco, 431 Mich at 712 (BOYLE, J., concurring), notably, the

Littlejohn & DeMars article cited in Ross explained that, at the common law, “judges

were always protected by absolute immunity for their judicial acts,” even when

maliciously performed, and, likewise, legislators were shielded from tort liability when

they acted “in the sphere of legitimate legislative activity.” Littlejohn & DeMars, 1982

Det C L Rev at 26 (citation and quotation marks omitted) (emphasis added). Given

Ross’s reliance on that authority, I question the majority’s holding that the statutory

reference to judicial, legislative, and executive authority was simply a legislative intent to

inquire whether judges, legislators, and high-level executive officials exercised any

authority vested in them by virtue of their positions within their respective branches of

13

view, broadly interpreting the phrase “executive authority” as encompassing all authority

vested in a high-level executive extends absolute immunity beyond its purpose—to

protect unfettered governmental decision-making afforded to those with policy-making

powers. Ross, 420 Mich at 632-633, quoting Littlejohn & DeMars, 1982 Det C L Rev at

27-28. See, also, Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515;

573 NW2d 611 (1998) (explaining that the primary goal of this Court is to give effect to

the Legislature’s intent through reasonable construction of the statutory language “in

consideration of the purpose of the statute and the object sought to be accomplished”)

(citation and quotation marks omitted).

Additionally, reading the statutory provision as a whole supports a narrower

interpretation of the phrase “executive authority” than that adopted by the majority. See

Robinson, 486 Mich at 15 (explaining that it is well established that statutes must be read

together and, thus, no single section should be viewed in isolation).7 When MCL

691.1407(5) is read in conjunction with MCL 691.1407(2), it is clear that the Legislature

government, rather than defining a specific subset of each official’s respective authority

that is entitled to absolute immunity.

7

The majority faults my dissent for reading the statutory provisions as a whole, and

accuses me of adding requirements into the statutory language and somehow failing to

give effect to each word within the statute. My response is simple: the majority’s claims,

as with the bulk of the majority’s responses to this dissent, hinge entirely on accepting the

majority’s premise that the word “executive” as used within the phrase “executive

authority” is a mere reiteration that simply parallels the statute’s earlier reference to who

is entitled to assert immunity. And, respectfully, a faithful reading of this dissent

illustrates that it does not add words to the statutory language as the majority claims, but

simply gives effect and meaning to each word within the statute—including the word

“executive” within the phrase “executive authority.”

14

did not intend to insulate high-level executive officials from tort liability whenever they

act within the scope of any aspect of their authority simply because they are cloaked with

the title of “executive.” Instead, when the highest appointive executive official commits

a tort while not acting within the scope of his or her “executive authority” under MCL

691.1407(5), the language of the respective statutes and the statutory scheme supports the

notion that the official is not entitled to absolute immunity but might nevertheless be

entitled to qualified immunity under MCL 691.1407(2) or, alternatively, the requirements

delineated in Ross concerning intentional torts.8

Specifically, MCL 691.1407(2) provides that, except as otherwise provided in

MCL 691.1407, each “officer” and “employee” of a governmental agency9 is immune

from tort liability for injury to person or property caused by the officer or employee while

in the course of employment if the officer or employee was, among other things, “acting

within the scope of his or her authority.” (Emphasis added.) Thus, unlike MCL

691.1407(5), which qualifies the type of authority that the high-level executive must be

acting within the scope of to be entitled to absolute immunity, MCL 691.1407(2) does not

limit its application to a specific subset of an employee or officer’s authority but, instead,

refers to the general authority of governmental officers and employees. Further, MCL

691.1407(2) broadly refers to “officers” and “employees” in discussing the qualified

immunity available under that subsection. It does not, in contrast to the Ross test, refer

8

See note 1 of this opinion.

9

See MCL 691.1401(a), (e), and (g) (defining “governmental agency” to include the

“state and its agencies, departments, commissions, courts, boards, councils, and

statutorily created task forces”).

15

to “lower level” officers and employees only. Thus, the subsection was likely devised

to apply not only to lower-level officers and employees, but to high-level officials in

certain circumstances as well. And, although MCL 691.1407(2) does not expressly refer

to “executive officials,” an “executive official” is nevertheless an “employee” or

“officer” of a governmental agency. See Merriam-Webster’s Collegiate Dictionary,

Tenth Edition (1999) (defining “officer” as an “AGENT” or “one who holds an office of

trust, authority, or command,” and defining “official” as “one who holds or is invested

with an office : OFFICER”). Accordingly, the plain language of the statute as well as the

statutory scheme supports the notion that an executive’s title should not act to elevate any

authorized act that is performed by a high-level executive into an act that is within the

scope of his or her “executive authority” for purposes of absolute immunity. Instead,

when a high-level executive is not acting within the scope of his or her executive

authority, that executive should not be entitled to the “strong medicine” that is absolute

immunity. Forrester, 484 US at 230 (citation and quotation marks omitted). Rather, as

an employee or officer of a governmental agency, the high-level executive acting outside

the scope of his or her executive authority is still entitled to seek the protections afforded

by qualified immunity under MCL 691.1407(2) or Ross and, consequently, there is no

unreasonable burden on the administration of government.

C. APPLICATION

As applied to this case, I disagree with the majority that Jaskowski was entitled to

absolute immunity under MCL 691.1407(5). Specifically, when a chief of police engages

in conduct performed by an ordinary police officer, such as conducting an arrest, I would

16

hold that the chief of police is not entitled to absolute immunity simply because, as a

police officer, the chief also has the authority to arrest. In carrying out the decision to

arrest, Jaskowski was simply not acting within the scope of his executive authority as a

highest appointive executive official.10 Instead, he was acting within his authority as an

ordinary police officer.

Applying the factors articulated by a majority of this Court to assist courts in

determining whether an act falls within the scope of a high-level executive’s executive

authority, see American Transmissions, 454 Mich at 141, it is clear that Jaskowski, as the

chief of police and, consequently, a police officer, indisputably had the authority to

conduct an arrest. Nevertheless, Jaskowski’s conduct in this case involved the

quintessential conduct of an ordinary police officer, rather than the “executive authority”

of the highest-ranking official of a level of government, especially when considering the

structure and allocation of powers within the police department itself as demonstrated by

the essential duties and responsibilities of defendant as the chief of police. See Petipren v

Jaskowski, 294 Mich App 419, 427-429, 432 n 5; 812 NW2d 17 (2011).11 Accordingly,

10

It is notable that had a lower-ranked police officer committed the same acts as

Jaskowski, that officer would be entitled to seek, at most, the more limited, qualified

immunity available under MCL 691.1407(2) or Ross, 420 Mich at 633-634. Thus, the

majority effectively grants him absolute immunity simply because he is cloaked with the

title of a high-level executive. The majority asserts that this comment “plainly

oversimplifies” its holding. However, as this example illustrates, this comment is a fair

response in light of the consequences of the majority’s holding, which include, under the

facts of this case, granting immunity to Jaskowski because he simply happens to have

been the chief of police, rather than an ordinary patrol officer.

11

Jaskowski’s job description, discussed by the majority, is divided into separate

sections, including one titled “FUNCTIONAL RESPONSIBILITIES OF THE POLICE

DEPARTMENT,” and one titled “ESSENTIAL DUTIES AND RESPONSIBILITIES” of

17

Jaskowski should only be entitled to seek qualified immunity as provided to officers and

employees under MCL 691.1407(2) and Ross.

III. CONCLUSION

Because I believe that the phrase “executive authority” as used in MCL

691.1407(5) does not “encompass[] all authority vested in the highest appointive

executive official of a level of government by virtue of his or her role in the executive

branch,” ante at 28 (emphasis added), but, instead, refers to a subset of authority within

which the highest appointive executive official must act “within the scope of” to be

entitled to absolute immunity, I respectfully dissent.

Michael F. Cavanagh

Stephen J. Markman

MCCORMACK and VIVIANO, JJ., took no part in the decision of this case.

the “Chief of Police.” (Emphasis altered). The duty to conduct arrests is noticeably

absent from the latter section.

18