Opinion
No. 137990.
January 27, 2010.
Appeal from the Court of Appeals No. 276712.
Summary Disposition.
By order of September 18, 2009, we directed the parties to provide supplemental briefs. On order of the Court, the briefs having been received, the application for leave to appeal the November 18, 2008 judgment of the Court of Appeals is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we affirm on alternative grounds the Court of Appeals affirmance of the trial court's denial of defendant Bernard Bouschor's motion for summary disposition. MCL 691.1407(5) provides immunity to "elective . . . executive official[s]" of the state of Michigan "acting within the scope of [their] . . . authority," not to those of a sovereign Indian nation. The defendant, as a former executive official of a sovereign Indian nation, is therefore not entitled to governmental immunity under the law of the state of Michigan. MCL 691.1407(2) provides qualified immunity to an "officer . . . of a governmental agency" who "reasonably believes he or she is acting within the scope of his or her authority." Similar to MCL 691.1407(5), MCL 691.1407(2) applies only to officers of "the state or a political subdivision." See MCL 691.1401(c), (d). Accordingly, the defendant is not entitled to qualified immunity under Michigan's governmental tort liability act. In incorporating Michigan's governmental tort liability act into its own tribal code, as it did for all laws of the state of Michigan that do not conflict with the tribal code, the plaintiff tribe has only provided immunity to Michigan governmental employees and officers, not to its own employees and officers.