Burnett v. Moore , 111 Mich. App. 646 ( 1981 )

111 Mich. App. 646 (1981) 314 N.W.2d 458

BURNETT
v.
MOORE.

Docket No. 52503.

Michigan Court of Appeals.

Decided September 16, 1981.

Rifkin, Kingsley & Rhoades, P.C. (by Roy A. Williams), for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas A. Kulick, Assistant Attorney General, for defendant.

Before: BRONSON, P.J., and R.M. MAHER and F.X. O'BRIEN,^[*] JJ.

PER CURIAM.

Plaintiff commenced this action in circuit court, alleging, inter alia, that defendant assaulted and battered him in the course of making a citizen's arrest for plaintiff's reckless driving. The court granted defendant's motion for accelerated judgment, holding that the Court of Claims had exclusive jurisdiction over the action on the theory that defendant, a state police officer who was off duty at the time of the alleged incident, is a "state official". Plaintiff appeals as of right. Plaintiff presents two issues for our consideration. In light of our decision on the first issue, we find it unnecessary to discuss the second.

Plaintiff argues that defendant is not a state official and that, therefore, the Court of Claims does not have exclusive jurisdiction. The Michigan Court of Claims has, by statute, exclusive jurisdiction "over claims and demands against the state or any of its departments, commissions, boards, institutions, arms or agencies * * *". MCL 600.6419(1); MSA 27A.6419(1). This has been interpreted to include state officials. See Abbott v Secretary of State, 67 Mich. App. 344; 240 NW2d 800 (1976), and Grunow v Sanders, 84 Mich. App. 578; 269 NW2d 683 (1978).

These cases have established that the Secretary of State, Attorney General, and Insurance Commissioner are "state officials". In Feliciano v Dep't of Natural Resources, 97 Mich. App. 101; 293 NW2d 732 (1980), however, lifeguards at a state-operated recreation facility were held not to be "state officials" for purposes of the Court of Claims jurisdiction. Likewise, a prison camp supervisor is not a "state official", Bandfield v Wood, 104 Mich. App. 279; 304 NW2d 551 (1981).

It is necessary, therefore, to determine whether a state police trooper is a "state official" for purposes of the Court of Claims jurisdiction. The cases above guide us in this determination. "State officials" are the executive officers of state departments and commissions. People v Freedland, 308 Mich. 449, 457-458; 14 NW2d 62 (1944), relied on in Bandfield, sets forth the elements which distinguish a "public official" from an ordinary government employee:

"`After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.'"

It is our opinion that the position of state police trooper is not a state office within the meaning of Freedland and Bandfield. A state police officer has some discretion in the performance of his job, but an officer has to answer to authorities in addition to the law itself. A police officer must answer to the Commissioner of the State Police and other officials in the chain of command in the state police.

According to Freedland, a determination of whether a position is a public office "involves necessarily a consideration of the legislative intent in framing the particular statute by which the position * * * is created". Id., 457. When the Legislature created the grade levels of colonel, lieutenant colonel, major, captain, lieutenant, and sergeant, in addition to trooper, it did not intend to imbue the position of trooper with the dignity of a public office. MCL 28.8; MSA 4.438.

Thus, defendant is not a "state official", and the Court of Claims, therefore, does not have exclusive jurisdiction. The lower court erred in granting defendant's motion for accelerated judgment.

Reversed and remanded. Costs to plaintiff.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.