Burnett v. Moore

• Decision Date: 26 January 1982
• Docket Number: Docket No. 52503
• Citation: 314 N.W.2d 458,111 Mich.App. 646
• Parties: Gary BURNETT, Plaintiff-Appellant, v. Donald MOORE, Defendant-Appellee. 111 Mich.App. 646, 314 N.W.2d 458
• Court: Court of Appeal of Michigan — District of US

Page 458

314 N.W.2d 458

Gary BURNETT, Plaintiff-Appellant, v. Donald MOORE, Defendant-Appellee.

Docket No. 52503.

111 Mich.App. 646, 314 N.W.2d 458

Court of Appeals of Michigan.

Submitted June 1, 1981.

Decided Sept. 16, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 647] Rifkin, Kingsley & Rhades, P.C. (by Roy A. Williams), Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Thomas A. Kulick, Asst. Atty. Gen., for defendant-appellee.

Before BRONSON, P. J., and MAHER and F. X. O'BRIEN, ^* JJ.

PER CURIAM.

Plaintiff commenced this action in circuit court, alleging, inter alia, that defendant assaulted and battered him in the course of making a citizen's arrest for plaintiff's reckless driving. The court granted defendant's motion for accelerated judgment, holding that the Court of Claims [111 MICHAPP 648] had exclusive jurisdiction over the action on the theory that defendant, a state police officer who was off duty at the time of the alleged incident, is a "state official". Plaintiff appeals as of right. Plaintiff presents two issues for our consideration. In light of our decision on the first issue, we find it unnecessary to discuss the second.

Plaintiff argues that defendant is not a state official and that, therefore, the Court of Claims does not have exclusive jurisdiction. The Michigan Court of Claims has, by statute, exclusive jurisdiction "over claims and demands against the state or any of its departments, commissions, boards, institutions, arms or agencies * * * ". M.C.L. § 600.6419(1); M.S.A. § 27A.6419(1). This has been interpreted to include state officials. See Abbott v. Secretary of State, 67 Mich.App. 344, 240 N.W.2d 800 (1976), and Grunow v. Sanders, 84 Mich.App. 578, 269 N.W.2d 683 (1978).

These cases have established that the Secretary of State, Attorney General, and Insurance Commissioner are "state officials". In Feliciano v. Dep't of Natural Resources, 97 Mich.App. 101, 293 N.W.2d 732 (1980), however, lifeguards at a state-operated recreation facility were held not to be "state officials" for purposes of the Court of Claims jurisdiction. Likewise, a prison camp supervisor is not a "state official", Bandfield v. Wood, 104 Mich.App. 279, 304 N.W.2d 551 (1981).

It is necessary, therefore, to determine whether a state police trooper is a "state official" for purposes of the Court of Claims' jurisdiction. The cases above guide us in this determination. "State officials" are the executive officers of state departments and commissions. People v. Freedland, 308 Mich. 449, 457-458, 14 N.W.2d 62 (1944), relied on in Bandfield, sets forth the elements which distinguish[111 MICHAPP 649] a "public official" from an ordinary government employee:

" 'After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office,...