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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6295

May 15, 1985

ATTORNEY GENERAL:

Representation of State Judicial Council and its employees

GOVERNMENTAL IMMUNITY:

Liability of State Judicial Council for torts of its employees

STATE JUDICIAL COUNCIL:

Liability for torts of its employees

WORDS AND PHRASES:

'Governmental function'

The State Judicial Council is engaged in a governmental function when acting as the employer of the employees of the Office of the Friend of the Court of the Third Judicial Circuit.

The State Judicial Council is immune from liability for any torts committed by the employees of the Office of the Friend of the Court of the Third Judicial Circuit, occurring on or after September 1, 1981, while performing an activity in the course of their employment and within the scope of their lawful duties not involving the negligent operation of a motor vehicle.

Final judgments for damages rendered against the State Judicial Council may be paid from the unencumbered funds contained in its budget act appropriations, and if such funds are unavailable, the judgment shall be paid as soon as funds are appropriated therefor by the Legislature.

In the event that the State Judicial Council, in its discretion, determines that legal representation shall be furnished to an employee of the Office of the Friend of the Court of the Third Judicial Circuit in an action brought against such employee to recover damages for alleged torts committed in the course of employment and within the scope of lawful authority, it may ask the Attorney General to represent such employee, or in the alternative, appoint a special assistant attorney general, at the expense of the State Judicial Council, to represent such employee.

The Attorney General shall represent the State Judicial Council in any action brought against it by a third person to recover damages for injuries to the person or property allegedly caused by employees of the State Judicial Council committed in the course of their employment and while acting within the scope of their lawful authority.

Mr. Norman Paelke

Executive Director

State Judicial Council

P.O. Box 30048

Lansing, Michigan 48909

You have requested my opinion on several questions relating to the liability of the State Judicial Council, if any, for injuries to persons or property caused by the alleged negligence of employees of the Office of the Friend of the Court of the Third Judicial Circuit. Your questions will be addressed seriatim.

Your first question is:

'Whether the Council, which is the employer of the employees of the Friend of the Court in Wayne County, effective September 1, 1981, pursuant to MCLA 600.593; MSA 27A.593, is liable for damages which may be awarded for torts committed by the employees of the Friend of the Court within the scope of their employment, on or after September 1, 1981.'

The governmental immunity act, MCL 691.1401 et seq; MSA 3.996(101) et seq, governs the question of the liability of a state agency for injuries to persons or property caused by negligence. MCL 691.1407; MSA 3.996(107), provides:

'Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the governmental agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunities of the state from tort liability as it existed heretofore, which immunity is affirmed.' (Emphasis added.)

The Legislature has not expressly defined the term 'governmental function' as it is found in MCL 691.1407; MSA 3.996(107). Although this statute was first enacted in 1964, it has been under constant judicial scrutiny by Michigan appellate courts, resulting in a 'conflicting 'morass' of case law concerning the definition of 'governmental function." Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 610; ---- NW2d ---- (1984). In Ross (On Rehearing), the Michigan Supreme Court rejected the previous definitions of this term, as defined under the 'common good of all' test or the 'essence to/of governing' test, as too difficult to apply, and, instead, construed the term broadly to mean 'an activity which is expressly or impliedly mandated or authorized by constitution, statute or other law.' Ross (On Rehearing) at 620. The court succinctly concluded:

'When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in Sec. 13) or falls within one of the other statutory exceptions to the governmental immunity act. Whenever a governmental agency engages in an activity which is not expressly or impliedly mandated or authorized by constitution, statute, or other law (i.e., an ultra vires activity) it is not engaging in the exercise or discharge of a governmental function. The agency is therefore liable for any injuries or damages incurred as a result of its tortious conduct.' Ibid.

The Ross (On Rehearing), holding is predicated on a simple and fundamental concept of government as set forth in Const 1963, art 1, Sec. 1:

'All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.'

The court found that 'the people, by mandating or authorizing the government to engage in certain activities, have determined that those activities are governmental in nature.' Ross (On Rehearing), at 619-620.

In adopting the newly construed definition of 'governmental function,' the court noted that under MCL 691.1407; MSA 3.996(107), the tort liability of a governmental agency may be based upon two distinct theories. The first theory is one of direct liability. A direct liability claim alleges that the agency itself acted, or failed to act, in a tortious manner, resulting in personal or property injury to another. Under this theory, the agency will be directly liable if the activity in which it engages was nongovernmental or falls within one of the four categorical exceptions set forth in the governmental immunity act: failure to keep highways in reasonable repair, MCL 691.1402; MSA 3.996(102); the negligent operation of a government-owned motor vehicle by the agency's employee, MCL 691.1405; MSA 3.996(105); dangerous or defective conditions in public buildings under the agency's control, MCL 691.1406; MSA 3.996(106), and when the agency is engaged in a proprietary function, MCL 691.1413; MSA 3.996(113).

The second theory is one of vicarious liability. Vicarious liability of a state agency for the torts of its officers, employees and agents is premised on the implicated theory of principal-agency law existing in an employer-employee relationship. Alleging vicarious liability, an injured party may attempt to imposs liability on a state agency, even though the agency 'played no part in the tort, did nothing whatsoever to aid or encourage it, or may have done everything possible to stop it.' Ross (On Rehearing), at 622.

Despite the fact that a tort may be committed by the governmental employee during the course of employment and within the scope of the employee's authority, the governmental agency may be liable only when the employee commits a tort while engaged in an activity which is nongovernmental or proprietary, or which falls within the statutory automobile exception. The agency is vicariously liable:

'because it is in effect furthering its interests or performing activities for which liability has been statutorily imposed. However, if the activity in which the tortfeasor was engaged at the time the tort was committed constituted the exercise or discharge of a governmental function (i.e., the activity was expressly or impliedly mandated or authorized by constitution, statute or other law), the agency is immune pursuant to Sec. 7 [MCL 691.1407; MSA 3.996(107)] of the governmental immunity act.' Ross (On Rehearing), at 625.

As the Ross (On Rehearing) court stressed, the focus must be on the activity of the employee in which the individual was engaged in at the time the tort was committed. Ross (On Rehearing), at 625.

In order to apply the 'governmental function' exemption from tort liability set forth in MCL 691.1407; MSA 3.996(107), as judicially construed by the Michigan Supreme Court in Ross (On Rehearing), it is necessary to determine whether the State Judicial Council is a governmental agency and whether the tortious conduct of employees of the Office of the Friend of the Court of the Third Judicial Circuit occurred while the employees were acting within the scope of their employment as mandated or authorized by the Constitution, statute or other law.

By definition in the governmental immunity act, MCL 691.1401(d); MSA 3.996(101)(d), a 'governmental agency' means

'the state, political subdivisions and municipal corporations as herein defined.'

Also defined in the Act is the term 'state,' MCL 691.1401(c); MSA 3.996(101)(c), which means:

'the state of Michigan and its agencies, departments, and commissions, . . ..' (Emphasis added.)

In MCL 600.9101; MSA 27A.9101, effective May 1, 1981, the Legislature established the State Judicial Council consisting of seven members appointed by the Chief Justice of the Supreme Court in the manner provided therein. Further, it imparted upon the Council the authority to be 'employer of the employees of the judicial branch of state government who serve in the circuit, recorder's, district, or probate court and who are paid by the state,' but not including judges. The Legislature also effectuated a transfer of the employees of the Third Judicial Circuit, expressly including employees of the Friend of the Court, from being employees of the Third Judicial Circuit to being employees of the State Judicial Council, effective September 1, 1981. MCL 600.593; MSA 27A.593. It is noted that the employees of the Office of the Friend of the Court are paid by the state pursuant to an appropriation made in 1984 PA 222, Sec. 1.

Furthermore, in a letter opinion addressed to the Honorable Richard Dunn, Presiding Judge, Third Judicial Circuit, dated November 15, 1984, it was concluded that a judicial circuit is an agency of the state. Accord: Cronovich v Dunn, 573 F Supp 1330, 1332, fn 1 (ED Mich, 1983).

It necessarily follows that the State Judicial Council is an agency of the state.

The duties and powers of the State Judicial Council, as articulated in MCL 600.9101 et seq; MSA 27.9101 et seq, are comprised of the administrative duties integral to serving as the employer of certain employees in the judicial branch of state government. Such duties include establishing personnel policies and procedures relating to working hours, fringe benefits, holidays, affirmative action, discipline, grievance, personnel records, probation and hiring, and the making and entering into of collective bargaining agreements. MCL 600.9104; MSA 27A.9104.

The employees of the Office of the Friend of the Court of the Third Judicial Circuit, as employees of the State Judicial Council, perform duties pursuant to various statutes, including the Friend of the Court Act, MCL 552.501 et seq; MSA 25.176(1) et seq; the Support and Visitation Act, MCL 552.601 et seq; MSA 25.164(1) et seq; the Family Support Act, MCL 552.451 et seq; MSA 25.222(1) et seq; and the Paternity Act, MCL 722.714; MSA 25.494 et seq. The basic function of the Office of the Friend of the Court in the Third Judicial Circuit is to assist the Third Judicial Circuit in any domestic relations matter pending before it, as provided in the Friend of the Court Act. The duties of the Office of the Friend of the Court in the Third Judicial Circuit also relate to the protection of children, including those children in families who are drawn into domestic disputes, investigating, mediating and refereeing the progress of domestic disputes, and recommending and enforcing support orders in resolution of those matters.

The State Judicial Council, when it acts as the employer of the employees of the Office of the Friend of the Court of the Third Judicial Circuit, does so as a state agency created by law.

The 'scope of employment' of the employees of the Office of the Friend of the Court of the Third Judicial Circuit are only those activities which are authorized by statutes of the state. An employee of the Office of the Friend of the Court of the Third Judicial Circuit acts within the scope of employment when performing duties required by state statutes. If such an employee was engaged in an activity within the scope of employment mandated or authorized by statute at the time the alleged tort was committed, the State Judicial Council, as the employer, was engaged in a governmental function and is, therefore, immune from liability for such alleged tortious conduct. In the event the employee was driving a motor vehicle, however, while performing duties within the scope of employment, the State Judicial Council may be vicariously liable for the tortious conduct of the employee as provided in MCL 691.1405; MSA 3.996(105).

It is my opinion, therefore, that the State Judicial Council is engaged in a governmental function when acting as the employer of the employees of the Office of the Friend of the Court of the Third Judicial Circuit. It is my further opinion that the State Judicial Council is immune from liability for any torts committed by the employees of the Office of the Friend of the Court of the Third Judicial Circuit, occurring on or after September 1, 1981, while performing an activity in the course of their employment and within the scope of their lawful duties not involving the negligent operation of a motor vehicle.

Your second question is:

'What entity is liable for damages which may be awarded against the Council for torts committed by the employees of the Friend of the Court in Wayne County, in the scope of their employment on or after September 1, 1981.'

In accordance with the mandate of Const 1963, art 9, Sec. 17, which requires that no money may be paid out of the state treasury except in pursuance of appropriations made by law, the Legislature has enacted a budget system plan of ascertaining and meeting the financial needs of the 'several departments, institutions, boards, commissions and offices of the state government.' MCL 21.1 et seq; MSA 3.281 et seq.

Pursuant to MCL 21.8; MSA 3.288:

'All departments, institutions, boards, commissions, and offices of the state government are subject to the provisions of this act and, except as hereinafter provided, shall each be wholly supported and maintained by specific appropriations by the legislature, . . ..'

MCL 21.511; MSA 3.584(11), authorizes a state agency to pay court judgments awarded against state agencies from the appropriations contained in a budget act.

Subsection (2) of MCL 600.6458; MSA 27A.6458, is also applicable and provides for the following payment procedures:

'(2) Upon any judgment against the state or any department, . . . arm or agency thereof . . . the clerk of the court shall certify to the auditor general the fact that such judgment was entered or that such claim was allowed and the same shall thereupon be paid from the unencumbered appropriation of the department, commission, board, institution, arm or agency: Provided, however, That the auditor general determines the funds therein are sufficient for such payment. In the event that funds are not available to pay any such judgment or allowed claim, the auditor general shall instruct the clerk of the court of claims to issue a voucher against an appropriation made by the legislature for the payment of judgment claims and allowed claims. In the event that funds are not available to pay any such judgment or allowed claim, such fact, together with the name of the claimant, date of judgment, . . . and amount thereof shall be reported to the legislature at its next session, and said judgment or allowed claim shall be paid as soon as moneys are available for such purpose.' (1)

It is my opinion in answer to your second question that final judgments for damages rendered against the State Judicial Council may be paid from the unencumbered funds contained in its budget act appropriations, and if funds are unavailable, such information must be reported promptly to the Legislature at its next session and the outstanding judgment paid as soon as funds are appropriated therefor by the Legislature.

Your third question is:

'What entity, if any, is obligated to represent employees of the Friend of the Court in Wayne County in actions brought against them for torts committed on or after September 1, 1981.'

The governmental immunity act imposes no clear instruction that some entity be obligated to represent the employees of the Friend of the Court of the Third Judicial Circuit in actions brought against those employees for injuries to persons or property caused by the negligence of such employees. Instead, MCL 691.1408; MSA 3.996(108), provides, in pertinent part:

'(1) Whenever a claim is made or a civil action is commenced against an officer or employee of a governmental agency for injuries to persons or property caused by negligence of the officer or employee while in the course of employment and while acting within the scope of his or her authority, the governmental agency may pay for, engage, or furnish the services of an attorney to advise the officer or employee as to the claim and to appear for and represent the officer or employee in the action.

'(3) This section shall not impose any liability on a governmental agency.' (Emphasis added.)

Analysis of this statute requires in subsection (1) a determination of the Legislature's intent in using the term 'may.' It is appropriate to apply the statutory rule of construction that where 'may' and 'shall' are each used in the same statutory context, the term 'may' is permissive rather than a mandatory order. Moore v Voorman, 32 Mich 526 (1875). When juxtaposed to 'shall' in the same statutory section, the term 'may' has been construed to provide a state agency with discretion in exercising statutory authority conferred upon it. OAG, 1979-1980, No 5565, p 398 (September 20, 1979).

Applied to your question, the term 'may' in MCL 691.1408; MSA 3.996(108), defines the parameter of a governmental agency's duty to furnish defendant employees with the services of an attorney. The State Judicial Council, as a state agency, is, therefore, vested with discretionary authority to determine under what circumstances the services of an attorney will be provided such employees. Should the State Judicial Council decide to furnish legal representation for an employee of the Office of the Friend of the Court of the Third Judicial Circuit, it may do so by requesting representation for such employee in accordance with the policy of the Office of the Attorney General as articulated in OAG, 1979-1980, No 5572, p 421, 423 (October 4, 1979):

'3. If a state officer or employee is sued for negligence for conduct performed during the course of his or her employment and within the scope of his or her authority and the department head in which the officer or employee works calls upon the Attorney General for legal services, the defendant will be represented by a member of the Attorney General's staff unless (a) the case arises outside the State of Michigan, or (b) it is impracticable to assign a member of the staff to handle the case.

'4. If it is determined that the officer or employee is to receive state-paid legal services and the suit is filed outside the State of Michigan, or it is impracticable for the Attorney General to handle the case with his own staff, a special assistant to represent the individual defendant will be appointed by the Attorney General at the expense of the state agency that employed the defendant at the time the conduct that gave rise to the legal action occurred.'

It is my opinion in answer to your third question that representation of employees of the Office of the Friend of the Court of the Third Judicial Circuit in actions brought against them for alleged torts committed in the course of their employment and within the scope of their authority on or after September 1, 1981 rests in the sound discretion of the State Judicial Council, their employer. It is my further opinion that in the event the State Judicial Council determines to provide representation, it may ask the Attorney General to represent such employee, or in the alternative, appoint a special assistant attorney general, at the expense of the State Judicial Council, to represent such employee.

Your fourth question is:

'What entity, if any, is obligated to represent the council in actions involving torts committed by the employees of the Friend of the Court on or after September 1, 1981, in which it is named as a party defendant.'

By law, it is the Attorney General who shall prosecute or defend any matter in which the state has an interest. MCL 14.28; MSA 3.181, provides:

'The attorney general shall prosecute and defend all actions in the supreme court, in which the state shall be interested, or a party; . . . and the attorney general shall also, when requested by the governor, or either branch of the legislature and may, when in his own judgment the interests of the state require it, intervene in and appear for the people of this state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested.'

In Mundy v McDonald, 216 Mich 444, 450; 185 NW 877 (1921), the Attorney General's appearance defending a circuit judge in a libel action was challenged as inappropriate on the grounds that there was 'no statutory duty devolving upon that officer to justify his appearing in the case.' The Michigan Supreme Court did not agree with that argument. Instead, citing MCL 14.28; MSA 3.181, the court stated that '[a] broad discretion is vested in this officer in determining what matters may, or may not be of interest to the people generally.' The court went on to recognize that the Office of the Attorney General is ancient in origin and history, and that it is generally held by the states of the union that the Attorney General has a wide range of power at common law in addition to those granted him by statute. Mundy, supra, at 450-451.

OAG, 1941-1942, No 20644, p 309 (August 27, 1941), relying upon MCL 14.28; MSA 3.181, and Mundy, supra, concluded that it is the exclusive duty of the Attorney General to represent the people of the state in prosecuting or defending any action involving any state officer, department, board or commission. Moreover, in Jennings v State Veterinary Bd, 156 Mich 417, 418; 120 NW 785 (1909), the court ruled summarily that 'the attorney general only is authorized to represent the respondent [state agency].'

Additionally, actions brought against state agencies for personal injuries allegedly caused by state employees while acting in the course of their employment and within the scope of their authority are matters of serious concern to both state government and the public interest of Michigan. Such actions seek damages which, if awarded, must be paid with monies appropriated by the Legislature from the state treasury. MCL 21.511; MSA 3.584(11).

It is my opinion in response to your fourth question that the Attorney General shall represent the State Judicial Council in any action brought against it by a third person to recover damages for injuries to the person or property allegedly caused by employees of the State Judicial Council while acting within the scope of their lawful authority.

Frank J. Kelley

Attorney General

(1) It is noted that the office of elected auditor general has been abolished and the powers and duties imposed upon that office by MCL 600.6458; MSA 27A6458, have been transferred to the Department of Treasury by MCL 16.182; MSA 3.29(82).

 


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