American Transmissions, Inc. v. Attorney General

Fitzgerald, P.J. Plaintiffs appeal as of right the order granting summary disposition to defendant on the ground that defendant was entitled to absolute immunity for the allegedly defamatory statements made about plaintiffs, automobile transmission repair facilities, during a television interview. We remand. There is no dispute that the Attorney General is authorized to claim absolute immunity under MCL 691.1407(5); MSA 3.996(107)(5), which provides: Judges, legislators, and the elective or highest appointive executive officials of all levels of government are immune from tort liability for injuries to persons or damage to property whenever they are acting within the scope of their judicial, legislative, or executive authority. Plaintiffs contend, however, that defendant was not acting within the scope of his executive authority when he responded to a media request for an interview regarding the investigation of several automobile transmission repair facilities because the investigation had been concluded by the time of the interview. Plaintiffs cite no authority, however, to support their position that defendant’s authority to participate in a [121] media interview relates only to currently pending matters. A party may not leave it to this Court to search for authority to sustain or reject the party’s position. People v Hunter, 202 Mich App 23, 27; 507 NW2d 768 (1993). Plaintiffs rely on Marrocco v Randlett, 431 Mich 700; 433 NW2d 68 (1988), and Gracey v Wayne Co Clerk, 213 Mich App 412; 540 NW2d 710 (1995), to support their argument that defendant was not entitled to absolute immunity because his purpose in participating in the interview was not authorized by law. In Gracey, the Court, interpreting Marrocco, held that there is an intentional tort exception to governmental immunity for the intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law.1 Gracey, supra at 417. Therefore, assuming that defendant had authority to participate in the interview to address an investigation conducted by his office, he nevertheless did not have authority to participate in the interview for the purpose of disseminating false information regarding plaintiffs. If that was defendant’s purpose, as claimed by plaintiffs, he was not acting within the scope of his executive authority, and he is not entitled to immunity for those acts. On remand, therefore, the trial court must determine if there is a question of material fact regarding whether defendant was acting within the scope of his executive authority. Remanded for further proceedings consistent with this opinion. Jurisdiction is not retained. [122] Sawyer, J., concurred. Footnotes [1] We concur with the Gracey majority’s reluctance in applying the intentional tort exception to governmental immunity found in Marrocco, supra.