Republican majority says chief executive gets absolute immunity even in mundane, ministerial tasks
This week, in a rare 3-2 decision, three Republican Justices of the Supreme Court extended the governmental immunity beyond what was previously deemed appropriate. To his credit, Justice Stephen Markman broke ranks with the majority and would have upheld the lower court's more "mainstream" decision, along with Justice Cavanaugh.
The case arises out of the actions of the Chief of Police of the Village of Port Sanilac, Rodney Jaskowski. Jaskowski arrested the drummer of a band preparing to perform at the "Bark Shanty Festival" after Jaskowski allegedly received complaints about the propriety of the music being performed near the beer tent. According to the drummer and a bystander, Jaskowski barged on stage, knocked the drummer's equipment over, pushed the drummer to the ground and handcuffed him. Allegedly, he also arrested and 'cuffed the bystander when the latter asked what the drummer had done wrong. Jaskowski claimed that the drummer refused to stop his performance, cursed the officer and resisted arrest. All charges filed by Jaskowski were dropped by the prosecutor.
Under the statute which gives immunity to many governmental officials, even if they are negligent, "the elective or highest appointive executive official...[is] immune from tort liability...if he ...is acting within the scope of his ...executive authority." Jankowski raised this immunity argument when he was sued for assault and wrongul arrest. The lower courts rejected his claim and the Michigan Supreme Court decided to hear his appeal.
Unfortunately for the drummer (and the rest of us), his case was heard by only 5 Justices, because it arrived at the Court before two Justices elected in 2012 had taken the bench. The Republican majority of three Justices (Young, Zahra and Mary Beth Kelly) then reversed the lower court and held that even when the highest executive is performing ministerial duties of the lowest order, he enjoys absolute immunity--essentially reading the final clause out of the statute.