Petipren v. Jaskowski

• Decision Date: 20 June 2013
• Docket Number: 144143.,Docket Nos. 144142,Calendar No. 6.
• Citation: 494 Mich. 190,833 N.W.2d 247
• Parties: PETIPREN v. JASKOWSKI. Jaskowski v. Petipren.
• Court: Michigan Supreme Court

494 Mich. 190

833 N.W.2d 247

PETIPREN

v.JASKOWSKI.

Jaskowski

v.Petipren.

Docket Nos. 144142, 144143.

Calendar No. 6.

Supreme Court of Michigan.

Argued Nov. 14, 2012.

Decided June 20, 2013.

Cutler & Associates, P.C. (by Michael H. Cutler), for Thomas J. Petipren.

McGraw Morris P.C. (by G. Gus Morris and D. Randall Gilmer, Southfield) for Rodney Jaskowski.

Flood Lanctot Connor Stablein PLLC (by Christopher J. Forsyth and Janet A. Napp, Detroit) for amicus curiae the Michigan Association of Chiefs of Police.

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 absoluteimmunity 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.

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.

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 Sanilac ¹ and Jaskowski, individually and in his capacity as the chief of police.² Petipren alleged 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, Jaskowskiasserted 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 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] complaintsby 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 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 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...