noting that "the Michigan courts have recognized the continued existence of common-law prosecutorial immunity as a complement to this statutory grant of immunity”
How later courts described this case
- noting that "the Michigan courts have recognized the continued existence of common-law prosecutorial immunity as a complement to this statutory grant of immunity”
Written by the judges who cited it.
The opinion
*372 T. M. Burns, J.
(concurring). While I concur in the result reached by the majority, I would not hold that the prosecutor is cloaked with absolute immunity while making statements to the press. I agree with the trial court that defendants merely have a qualified privilege to make the statements in question, but disagree with the trial court’s finding that there was an issue of fact based upon plaintiff’s allegation of malice.
I would prefer to rely on the reasoning stated in Walker v Cahalan, 97 Mich App 346 ; 296 NW2d 18 (1980), rev’d on other grounds 411 Mich 857 ; 306 NW2d 99 (1981), cert den 454 US 1032 ; 102 S Ct 570 ; 70 L Ed 2d 476 (1981). Prosecutors acting in discretionary matters in the course of their official duties enjoy only a qualified privilege and not an absolute immunity. 97 Mich App 355 -356. Clearly, both statements in question could be reasonably construed as statements on the merits of the case and, therefore, making the statements to the press cannot be deemed to be within the scope of a prosecutor’s duty. I note that Marrero v City of Hialeah, 625 F2d 499 (CA 5, 1980), and Helstoski v Goldstein, 552 F2d 564 (CA 3, 1977), further support my position.
While I believe defendants are only protected by a qualified privilege, I feel that the trial court committed error requiring reversal since there was no factual issue as to whether defendants published the statements with actual malice. 1 Plaintiff merely alleges actual malice. There was not enough evidence offered to allow a jury to draw an inference that defendants committed the alleged defamation with actual malice. Plaintiff failed to set forth sufficient facts to raise a factual issue *373 regarding malice. 2 I would therefore reverse the trial court’s finding that there was a factual issue regarding whether defendants acted with malice.
In finding that there is no material factual issue, I do not rely on Mr. Cahalan’s affidavit. Walker v Cahalan, 411 Mich 857 .
VandenToorn v Bonner, 129 Mich App 198, 210 ; 342 NW2d 297 (1983).