Civil Liability for Chief Judges as Administrators Denise C. Barton, Division Chief Public Employment, Elections & Tort Division

Judicial Immunity As a general rule, judicial immunity does not apply to judges in making employment decisions. 1 Most court decisions interpreting judicial acts in the context of judges' hiring and firing decisions have not extended judicial immunity protection. Those cases have uniformly held that such decisions are not "judicial" in nature and thus do not further the doctrine's objective of protecting judicial decision- making freedom. 2 The administrative decision in hiring, firing and disciplining personnel is not unique to the judiciary and is performed by all other branches of government. 1.Guercio v Brody, 814 F2d 1115, 1115 (CA 6, 1987). 2.McMillan v Svetanoff, 793 F2d 149, 151 (CA 7, 1986). 2

Judicial Immunity As the Sixth Circuit explained in Cameron v Seitz 3 : – Judicial immunity is not overcome by allegations of bad faith or malice. It may be ‘overcome by only two sets of circumstances. First, a judge is not immune for liability for non-judicial actions, i.e., actions not taken in the judges’ judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction.’ To determine whether any of (the judge’s) actions were taken outside his judicial capacity, the ‘nature of the’ act is examined, i.e., whether it is a ‘function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.’ The relevant inquiry is the nature and function of the act, not the act itself. 3. Cameron v Seitz, 38 F3d 264, 271 (CA 6, 1994). 3

Judicial Immunity Absolute immunity is not available if the alleged wrongful conduct was committed pursuant to a non-judicial act, i.e., an act not taken in a judge’s judicial capacity, such as terminating an employee. 4 Qualified immunity may occasionally apply if the action taken is not contrary to a clearly established law. 5 However, violation of any employment discrimination and federal laws will not fall into this category. 4. Seitz, 38 F3d at Id at

Judicial Immunity Summary : The federal courts recognize no absolute or qualified immunity under 42 USC § 1983 as to judges acting in their administrative capacity as employers if the basis of the allegations violate any clearly established law or constitutional right. 6 Judges acting in an administrative capacity are not unique as to any other branch of government with regard to supervision, hiring, firing, and termination of employees. 6. Pucci v Nineteenth Dist Court, 628 F3d 752, 765 (CA 6, 2010). 5

Sovereign Immunity A governmental entity may enjoy sovereign immunity from suit, but only if that entity operates as an “arm of the state.” 7 The Sixth Circuit has laid out the factors to be considered when determining, for 11 th Amendment sovereign- immunity purposes, whether an entity is an “arm of the state”: 1)The State’s potential liability for a judgment against the entity; 2)The language by which state statutes and state courts refer to the entity and the degree of state control and veto power over the entity’s actions; 3)Whether state or local officials appoint the board members of the entity; and 4)Whether the entity’s functions fall within the traditional purview of state or local government Ernst v Rising, 427 F3d 351, 358 (CA 6, 2005) ( en banc ). 8. Id at

Sovereign Immunity The Sixth Circuit has held that, in the case of Michigan’s trial-level district courts, the last three factors far outweigh the fact that local funding units may bear financial responsibility for potential liability in a lawsuit against a district court, its judges, or its employees. 9 The court went on to say that, “[g]iven these circumstances, there can be no doubt that all of Michigan’s courts, including those trial-level courts funded by local units, are part of one, unified judicial branch of the state. Consequently, just as the Michigan Supreme Court is an arm of the state, so is its Nineteenth District Court.” 10 9.Pucci, 628 F3d at Id at

Qualified Immunity “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v Callahan, 555 US 223, 231 (2009) (quoting Harlow v Fitzgerald, 457 US 800, 818 (1982)). 8

Funding of Michigan Courts The Michigan Supreme Court has stated that “[t]here is no public environment in the state of Michigan more complex than the trial court component of the state’s ‘one court of justice.’ ” 12 This complexity can be attributed in part to the battle over the funding of Michigan’s trial courts since the 1980s. Various cases and statutes have attempted to solve the problem, but have found little success. 12. Judicial Attorneys Ass’n v State of Michigan, 459 Mich 291, 298 (1998). 9

Funding of Michigan Courts The Michigan Supreme Court has noted that the diverse interests in each locality contribute to the difficulty in funding, and “[u]ntil the Legislature, the counties, and the courts arrive at a plan for more efficient and effective court funding, difficulties like that presented in this case will arise.” 13 The Court went on to call for “continuing efforts by the judicial, legislative, and executive branches to reform the state’s system of court funding.” Grand Traverse County v State of Michigan, 450 Mich 457, 478 (1995). 14. Id 10

Funding of Michigan Courts In 1998, the Michigan Supreme Court decided the issue of whether counties were responsible for paying judgments rendered against probate courts. 15 The Court focused on the plain language of MCL , which states that “the district is responsible for maintaining, financing and operating the district court within its respective political subdivision... except as otherwise provided in this act.” Cameron v Monroe County Probate Court, 457 Mich 423, 428 (1998). 16. Id at

Funding of Michigan Courts Upon its determination that the funding unit was liable for payment of any judgment against the court, the Michigan Supreme Court stated: – “We conclude that counties are responsible for paying judgments entered against courts in such tort actions.... If the probate court had been found liable to plaintiff, the county would be liable for any resulting judgment as a matter of law.” Cameron, 457 Mich at

Elliott-Larsen Civil Rights Act An employer shall not: Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. A plaintiff may prove discrimination by showing that they were a victim of either intentional discrimination or disparate treatment. In Elezovic v Ford Motor Co., the Michigan Supreme Court held that a supervisor may be individually liable separate from his or her employer for actions toward an employee under his/her supervision that violate the Elliott-Larsen Civil Rights Act Elezovic v Ford Motor Co, 472 Mich 408; 697 NW 2d 851 (2005), on remand, 274 Mich App 1; 731 NW2d 452 (2007). 13

No Immunity No judicial immunity for actions taken as employer under: – 42 USC § 1983 – Americans with Disabilities Act – Michigan Persons with Disabilities Civil Rights Act Related Issues Acknowledgement Joseph Ludlow, Legal Extern 14