County Sheriff Not Liable for Civil Damages for Contempt of Probate Court Order to Estate of Mental Health Patient Awaiting Transport to County Mental Health Facility

In In re Estate of Bradley (1), the Michigan Supreme Court held the Governmental Tort Liability Act (GTLA), MCL 691.1401, et seq., provides immunity from tort liability to a county sheriff and his or her deputies for alleged violation of a probate court order, which resulted in the suicide death of a patient awaiting transport from his home to a county mental health authority.  The decedent’s personal representative had secured a court order from the probate court to have the county sheriff pick up the decedent and transport him to the county mental health authority for psychiatric evaluation.  The Sheriff never executed the court’s order.  Nine days later, the decedent committed suicide.  The decedent’s estate filed suit against the sheriff and an individual deputy, alleging, among other things, the failure to timely abide by the probate court’s order constituted actionable contempt and allowed the court to impose compensatory damages against the sheriff to the decedent’s estate.  The probate court denied the sheriff’s motion for summary disposition.  The circuit court reversed, holding the Sheriff and his deputy were immune from the imposition of such damages under the GTLA.  The Court of Appeals reversed, holding that the decedent’s estate could avoid the GTLA’s immunity altogether and receive compensatory damages from the probate court’s finding of contempt and imposition of damages against the sheriff.  In a 5-2 opinion, the Court reversed.  Justice Kelly wrote the majority opinion, joined by Chief Justice Young and Justices Markman, Zahra, and Viviano.  Justices Cavanagh and McCormack issued separate dissents.

This is an important holding for several reasons.  First, the case reaffirms the jurisdictional principle of governmental immunity adhered to in Michigan.  By explaining the concept that the government is immune from tort liability unless the government’s suit immunity is explicitly waived by the Legislature in the GTLA, this case reinforces the notion that subject-matter jurisdiction in Michigan courts over a cause of action over a particular governmental defendant is lacking unless a cause of action can be plead and proved to fall within the explicit statutory waivers of immunity allowed by the Legislature.  As the saying goes, the state created the courts and is not subject to them but by expression of the People’s will through legislature waiver.

Secondly, the opinion finally approaches offering a definition of the phrase “tort liability” as it appears in the GTLA.  As was expressed in the seminal decision in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567 (1984), and later in the case I prosecuted before the Court, Odom v. Wayne County, 482 Mich. 459 (2008), the GTLA preserved immunity as to all governmental entities (including individual governmental actors) for all tort liability for all actions performed by the government unless an explicit exception exists in the GTLA.  As the Court explains here, the question of immunity depends not on the nature of the action or conduct but whether the Legislature, through the GTLA has made available to private individuals a remedy.  This emphasizes the notion, addressed to some extent in Maiden v. Rozwood, 461 Mich. 109 (1999), that the government (and its individual actors) can commit torts, i.e., be negligent, and yet not be liable because no remedy exists.  This is a fundamental point in the current opinion one must understand before addressing the remedy available, if any, to an individual for a governmental official’s violation of a court order and liability for contempt.

To be sure, county sheriffs, as constitutional officers, have inherent common law powers and duties, in addition to those additional powers imposed by law, i.e., by statute.  They are answerable (to the government) for a breach of their duties, and this certainly includes contempt of a court order.  One of the inherent common-law duties of the county sheriff is to execute orders of the court and another is to take custody of those whom the court orders and to ensure safe and proper treatment of those in custody by virtue of lawful judicial order.

However, as the majority correctly points out, the liability to an individual under the contempt provision, MCL 600.1721 does not extend to allow the imposition of a remedy for a tort by the Sheriff – the court has no more inherent authority to lift the jurisdictional bar to imposing tort liability on the Sheriff unless a remedy is available under the GTLA.  Here, the only remedy as to the Sheriff’s deputy would be the “gross negligence” exception or the “intentional tort” exception, both of which were discussed at great length by the Court in Odomsupra.

Moreover, a review of the fundamental common law powers and duties of the Sheriff, in conjunction with the retained-unless-surrendered immunity of the government reveals the imposition of duties and fines or punishment against the sheriff, while not necessarily subject to total immunity, are limited to the sheriff’s (and his or her deputies’) duties to the public at large.  Thus, any violation of his or her duties or contempt of a court’s order does not give rise to a personal cause of action sounding in tort cognizable within the exceptions of the GTLA.  The “immunity” from “tort liability” encompasses the Sheriff’s office, as well as the acts of his or her deputies.  See Odomsupra; see also In re Bradley’s Estate, Slip. Op. at 25.

Justice Cavanagh dissents.  He argues MCL 691.1407(1) does not preclude civil contempt against the government, nor the imposition of sanctions in the form of forced indemnity payments to the estate for decedent’s death.

Justice McCormack also writes a compelling and well-researched dissent.  The premise is the Legislature, by enactment of the GTLA, did not grant immunity for contempt.  Slip Op. at 1-2.  This proposition, I would submit, is both correct and incorrect.

It is correct because the government, here the judiciary, retains a measure of authority required via the Michigan Constitution, to impose conduct-altering controls upon other members (and branches) of government, be it a member of the executive branch of state government, such as the constitutional office of county sheriff, or another public official.  This power can and should be exercised by the courts under the auspices of their inherent authority to force public officers to do something, or, in the necessary case remedy a failure or neglect of those orders by fine or imposition of punishment.

The premise is incorrect, however, to the extent it implies that the Legislature ever retained authority to grant immunity.  Under the jurisdictional principles of governmental immunity adhered to in Michigan, immunity from suit was never surrendered to the Legislature in order that it could divest the courts and other governmental entities, including individual governmental employees and officers of the inherent retained immunity of the sovereign.

The jurisdictional principle of immunity requires explicit legislative waiver of suit immunity and precision and clarity in both the form of the action and the nature of the remedy for governmental entities to be hailed into courts to answer in a cause of action brought by a private individual.  The majority’s explanation of tort liability offers some explanation that the government can be negligent, and that negligence can cause a private individual harm and damages, yet the government may not be answerable in a court of law to that individual for those damages.  This is, in all essence, an acknowledgment of the inherent, preexisting immunity the government retained to be free from liability for commission of ordinary negligence towards individual members of the public in conducting the day-to-day affairs of the government’s business.

Only “gross negligence” or an “intentional tort”, if proved, waives the suit immunity of individuals and only satisfaction of those other statutory exceptions in the GTLA can impose liability on the government; otherwise the government and its subordinate actors are cloaked with the retained immunity of the sovereign.  Mack v. City of Detroit, 467 Mich. 186, 195, 202 (2002); Lash v. Traverse City, 479 Mich. 180, 196 (2007).

A court’s authority, vis-a-vis other governmental actors within other branches of government, through exercise of the contempt powers, is essentially an act that is authorized and which occurs within the operational sphere of the government’s day-to-day functions.  This says nothing of a private individual’s rights to recover tort damages from the government for harm caused directly, or indirectly, by the government’s simple or ordinary “negligence”, which is simply not actionable under the GTLA.  There is no cause of action against the government (or its individual actors) for ordinary negligence, though a duty may exist and may be breached in a given case.  Maiden, supraMacksupraOdomsupra.

The authority of a court to impose contempt sanctions vis-a-vis another co-equal branch of government is limited to fine or imprisonment as a breach of a separate and cognizable duty to the state itself – not to recognize the grievance of a private individual seeking compensatory tort damages.

Justice McCormack correctly concludes contempt is unequivocally not a species of tort.  Slip Op. at 8.  Indeed, as she points out, it is and always has been a form of action quasi-criminal in nature under Michigan and common-law jurisprudence.  Id.  But, the appropriate definition of contempt and its purpose reveals the limits placed on its use as a civil remedy by or for private individual citizens, as opposed to a recognized remedy for the People, i.e., the government, as a whole, to enforce obedience and to compel action based on lawful orders that will affirm the orderly administration of justice and punish those whose violations of such orders have resulted in a wrong, however tragic.

Indeed, viewed from this orientation, the concept a single individual should be allowed to recover potentially great sums for a contemptuous act on the part of the government, via the enforcement powers of the government (here the judiciary), reveals the fundamental error that contempt can be used in this manner.

Not to mention that contempt authority exists without regard to the jurisdiction a court must have to address the merits of a cognizable cause of action under the GTLA – and those are only what causes of action are recognized by the Legislature as having removed the jurisdictional bar to the government’s suit immunity.

Further, under this view, Justice McCormack’s point that the contempt statute includes sheriffs and the GTLA does not apply is entirely correct.  Slip Op. at 10.  But, this does not mean the sheriff, coroner, etc., or any other official named in that provision, can be held to answer to a private individual for damages caused by tortious conduct that is otherwise immune from suit.

This is a very thorough opinion and there are extremely critical points made by both the majority and dissent.  It provides useful jurisprudence on the future development of the meaning of “tort liability” under the GTLA.

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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