heger township which is a township located in berrien county michigan and for justice white who you know as for motor with michigan because if that's your background it's on the west coast of michigan or vice st joseph and  the southwest corner of michigan the original pleadings in this case all i have researched five minutes for my rebuttal i apologize this is somewhat of an unique case because this case i nvolves not a federal issue so the court will be ruling on state laws in which and of course and i i don't mean to be impertinent but of course the court needs to be aware of the requirements of yuri versus tompkins which obviously this panel or this six circuit has adopted in the case of carnation company versus parks construction and  of course of federal courts that outcome of litigation in federal court should be substantially the same as what it would be if this matter were heard in the presence of a state court and since we're dealing with diversity of jurisdiction and diversity of citizenship here and that's why the matter is in front of the court i would simply ask the court to pay particular attention to the erie versus tom can see termination let me give a little bit of background here be just speaking of theory if you're off on about certifying list to the michigan supreme court or getting input from the michigan attorney general's office i have not approached it from that perspective  e i mean they there's an awful lot of intermediate conspicuously intermediate court of appeals decision in in michigan law on these issues and i just wondered if that was in a good resolution for everybody well certainly i would entertain that as an opportunity i have not pursued it in that fashion because the matter was brought in front of judge now on a diversity approach and i felt given the circumstances had been certified from district courts courts of appeals that's what certification is it's from the federal court the state court and then the other thing is the only reason i mention michigan attorney general i don't know how that office works but i know in ohio the ohio attorney general has opinion authority where they are they offer opinions interpretating state law all the time and they're usually quite expert it frankly it's actually this type of thing how local government law works  not familiar with a procedural approach or honor and i certainly would investigate it and if the court is of a mind to recommend that as part of its proceedings here i certainly would entertain an opportunity i is i understand that you brought a motion to dismiss right then and judge neff said you haven't given me enough that's what it wasn't it wasn't no you're not entitled to immunity as a definite matter it's like look this is on the pleadings ugh you haven't answered my questions regarding whether you're entitled to immunity and you know it doesn't i mean right now i'm not talking about the appeal ability i'm saying that it just seems like the door is wide open that it's simply and i think she cited to the the mission in court of appeals decision that had yop was one of the one of the parties where the michigan court of appeals did a very had a very similar reaction like you know we're not saying you're not entitled to immunity but you didn't give the judge anything i mean why why is this i don't read anything she says as for closing absolute immunity for your clients so i'm not sure you know why you wouldn't just  the munity we don't know if you just read this and you don't know anything we have no idea whether you're a charter township or a regular township and the of us don't have such animals in their states and so we go even though the does stick your only thing we know the only thing you provided is that they were elected and if i am not even sure i think that statute applies to both types of townships i don't even know nobody even spelled that out there's no affidavit even saying what they are and it's not clear on the face of the complaint so or ignore your answer so i just why do you feel that the judge had enough that there was so clear that your clients were entitled to immunity based on what you gave or i understand your concern i think what if i can address the issue from this perspective what the judge relied upon was a case that was cited by the point of the lead rank and it's unreported decision by the michigan court of appeals and there was a footnote in that case that particular case of rankin involved a much more complicated set of defendants individual defendants that involved a mayor and there in the mayor in a city circumstance as the court was well aware at least justice white you're aware that in michigan there can be multiple types of mayor classifications so the city charter is important they sued the city attorney in rank and they sued the economic development director not have a specific classification in the statute in michigan under the statute that i cited to judge now if there is a specific classification we have a supervisor we have a clerk so i think i have i don't want to speak for judge white but i think what she's saying and this is what i think is well it's ok let's just say she should never relied on rank to tell us how township clerks work how township supervisors work how does michigan law work in this area so i appreciate that and i perhaps i was at some age as me you can attach affidavits if you need some discovery you can that you think support your position it would be real is that kali's the point it would be very very very easy to amplify the record to explain that but you're in a difficult posture nao where there is absolutely nothing in the record other day and the plaintiff's allegations which i would point out resolve all of the issues that are presented in that footnote which is based upon the predator pepperton decision it's simple because the editor in decision talks about that the person in order to qualify for absolute immunity under subsection five that person is he or she is a judge a legislator or the elective or highest point of executive official of a level of government i'm sorry do you the charter for all of these issues are charted townships treated the same as regular township absolutely there's no difference are they legislatures or executive which we call them they are in between ok so then there wouldn't be wouldn't there be a real question the portion of the statute that relates to executives is applicable to the if and when there it's an it seems to speak in terms of a single official hat and we know if that is correct in that single official would be in this case we just don't know enough well i can understand of course what your point though is your point that the there the two defendants or legislate tours is that your is that your points and they also have executive powers when they're acting as and so that's what you're getting out of the problem with the executive  times the only case you have for that is one that's a charter township though not a township like this there's really no distinction for the purpose of this case between what you say but where's the authority for that performing no your honor they were in in the in township circumstances there is no true executive there is no true legislative they have a mix of responsibility as its  zero four one seven zero they act as a group with a vote so they are the highest for everything they do they are immune for everything they do under subsection fi and it doesn't matter what the nature of the act is as long as it's the rise is long as they act within the scope of their judicial legislative words jacket of authority to print case and that's what they did their accused as their offices indicated in the complaint in the pleading itself the pleading itself eliminates all of these problems because it says they have the authority to act and did and it says that this is a township and it had the authority it says that those was matters rope level why is it a legislative act to decide whether to post signs about a riptide why is that a legislative act as opposed to an executive act and that's why i say i understand i understand the point that townships perhaps involve people exercising lots of different power but i'm still allowed to ask which power is being exercised and w executive benefits more executive that makes one think you should have the person and not to so just it's not i'm not telling you the answer i'm asking you're the only thing that i could answer that how i would respond to that your honor is that under section forty one seventy it talks about how the me the township board actually did x through its meetings and its resolutions that's how it act ministerial no it's not that because she is a member in this particular case mr kelly was a member of the township board it's set straight out in the statutes that we have indicated here she's a member of the  statutorily would be to keep the records of the township and perhaps some election related matters until what you related matters the treasurer who is another officer of the township board would have responsibility for tax collection and tax would undertake and if they had to provide protection for swimmers on the beaches well you know i am not suggesting you tell us now  executive authority that might be exercising legislative authority we don't really know what i mean we can't analyze how the statute plazas until we have a lot more i  can understand that from the way out of time here so i would point out that your focus has been completely on subsection five of section of six nine one four two no seven which is the immunity statute if you move to subsection two you can indicate assume that these individuals kelly and superintendent are simply governmental function functionaries write them ok and you read the case on michigan i would agree with that statement so counsel i'm not in a prolonged this but i probably just missed it but when i went through your your answer or you didn't file an answer your motion i don't even think i saw a reference to chapter forty one i saw i saw a reference to the election  what do you want the court to do i mean you've given us more information in this argument then you gave the district court i'm not saying you're not entitled to a ruling as a matter of law but given the way the michigan court handled that in the locker tory appeal where there wasn't enough you know this is just the way a michigan court would handle the case and say you know you you haven't given you haven't given us so how would this work i mean this seems like a policy call of you know what do you do with riptide warnings and the like in terms of signs at the beach i suspect the state legislature if it wanted enact a law about that right yes first so so so they can do that and so i assume if you sue the state legislature for not having a rule about what to do when you get these weather service warnings tornadoes hurricanes rip tides they would easily win right that would be a caustic one expects so yes and so it just seems funny to me that they've done nothing which of course is why the township is on the hook because obviously if you had a law it would be over because that's clearly absolute immunity so they've done nothing on this even though it's the state's coastline and now the poor township stuck for also have being silent about the policy on this just seems really funny to it's not simply not having a policy the horror of the complaint here again you could solve this problem with a state or local law that says hey when you get a warning from the national weather service put up signs about the rip tide the tornado the high winds i wish there were such a law i agree there isn't one however and hagar township holds itself out as maintaining being responsible for maintaining that beach i played that very specifically in the complaint they hold themselves out on their website as provide housing that i'm ok i get it and so i'm hoping i am responding directly to your question why why doesn't my question show that what's going on is a legislative type act i think we'd we just agreed the michigan legislature could take care of this legislation they certainly wouldn't take care of it through their executive branch but that have a rule susan for interrupting the fact that the michigan legislature has not acted does not absolve the township employees for responsibility for not doing not protecting the public which they've already undertaken some duty to protect for example they did post at the beach that one riptide sign a small sign high up on a tree that's not posted by anybody so far as i know by anybody other than township folks and so the core complaint here is not that there should have been a policy although if there had been one this wouldn't happen but the core complaint here is that the township officials had unique specific knowledge of dangerous conditions at that beach at the lakefront along that coastline rip current warnings in small craft advisories mr clip paki and his wife mrs project did not have access to that information and this complaint says essentially you know what happens to other towns counties cities that border huron or michigan i have some knowledge of one south haven and they have now as i understand it in response to a lawsuit very much like this one in acted a flag system and i know that because i was involved in the handling of that civil case but their young father died as he was trying to save some kids and after he had spent all of his energy saving them successfully he succumbed to the rip tide and drowned and there as roads ultimate go she ations part of the resolution was efforts to help prevent this from happening again including a flag system so that township officials or city officials could put up a red flag if it meant essentially dangerous conditions or down the beach or shut down the beach that's exactly right that's one of the things we say should have been done here in a hangar township that on the beach yeah either that or at the very least warned the people who were going to the beach that these rip current advisories and small craft advisories have been issued because remember that rip current sign that's posted on the tree is there three hundred sixty five days a year it doesn't do won't do doesn't tell anyone exactly right and it's it's tragic because the municipalities have access to this information the folks who are visiting the beach who have no idea that these rip currents conditions are right for serious rip currents and deadly rip currents are there that's why what about the possibility that suggest in some of the case law that townships are not classically divided with the normal separation of powers principles that these townships they're small and they're kind of doing all things at once judicial executive legislative because if it's a legislative act at issue then you would seem to have a problem under the absolute immunity statute and i would agree first i don't think this was a legislative act this didn't require a vote of the town board i mean i'm not suggesting that the township board should have convened a meeting that morning and said in light of these warnings that have been issued by no are the national weather service we should close the beach all in favor raise your hands and say i and then send someone out to the beach to close it but you could make a prospect of a rule that says we always close the breach when we hear we always put a flag up that sounds legislative side i'm trying to figure out what one does with that but that's not the claim i'm bringing i'm not bringing a claim which says the township should have had that policy in place what i'm saying is they should have responded on this particular day to these particular warnings and specific warnings and either close the beach or at least put up some kind of warning i e a flag system to alert people that conditions today are different they're dangerous in a way that they aren't on some other days and maybe that means they've got to do that on a lot of days during the summer or the time when people are going to use the water but that's the price that has to be paid to protect their citizens you do you have cases that say that when you're dealing with the township and first of all do you do you also take the position that there's no difference in terms of the analysis there's no difference between a township and a target township i just don't know either way ok guys i don't ok so we we know the townships at least charter townships under the case they have these bodies they do everything but they're essentially legislative there's no true with executive in the sense do you have any cases that say that when when someone when when  township board member acts in the manner that we would think of as executive although that person is not recognised as an executive that they're not immune even when they are acts within the scope of their authority i don't have any case either way ok do you have any this is the type of case that is normally decided as a matter of law once you know the facts and if you can't identify any facts that bear on that question then the judge decides it normally we don't get cases that come up where the judge says well you haven't given me enough law you know which is another way of saying i don't know the answer yet so in that kind of case i don't know when i was a trial judge you say this is all very nice to see you in a few weeks when you've done your job i would have been a little nicer than that but it's so like why isn't it up to the two of you to be briefing this in a way that's adequate so the judge that could do her job like why can you just sit there and go well you know i don't know or this or that and there aren't that i mean you can only judge that specific question has not been raised has not been asserted by anybody and i'm not here saying that i know that there's a of the panel members omitted to in response to brother conscience questioning namely that both cannot be the highest elected elective official we are focused on the assumption their executive branch takes us back to what we've been wondering about well but the statute i understand although the statute six ninety one point fourteen zero seven sub five provides in pertinent part that a judge legislator and the elective or highest appointive of executive official of all levels of government are immune from tort liability the record is bare there are no affidavits there's nothing else provided as to what the scope of the supervisor's duties are here what the scope of the clerk's students are here what the scope of duties are of anyone else who's on the township board or otherwise and it would be the job status to establish that they weren't title qualified immunity that's right it's an affirmative to establish that they were not but i'm going to ask you one other question that's kind of just you know a background in nature for me what kind of township i don't mean i'm not asking you a legal need it is mr struggle no better than i will because he represents it is a tiny township small i couldn't tell you population i believe yes it has other employees clerical staff i imagine parking enforcement folks who put tickets on cars for  in maintaining it say i don't know i've looked through old meeting minutes and i can't tell discern from those which are available on the townships website if it has done any of those things or has decided not to do any of those things that's exactly why i have been frustrated with the inability to do discovery and i'd like to do some discovery depositions of folks there see what all of the minutes say even those which are not available on the townships website so that we can flesh out these issues so the judge  can and we can go back armed with your good ideas on what we should be talking to her about and other issues we should be looking at that can only neither of us have looked at yet have that information so the record can be but we'll think about certification of the michigan supreme court i mean does the case law i must say is not that clear to me having read a bunch of these cases i recognize we can do that i haven't given any consideration to that i think we have a supremely talented bench in both in eastern and western district but judge enough is more than capable of handling that question i agree with brother counsel that of course the court should be applying michigan law as it thinks it would be so i don't  understand and i appreciate the suggestion your honor i don't think that there's any decided advantage in doing that given who we have on the trial court in this matter well and in actually in the michigan supreme court while it was certainly would probably know more about supervisory boards and townships it really couldn't rely on his personal knowledge i mean it's going to need a record just like we did that's right that's  just to be clear i'm i'm just making the point i have no idea what this absolute me statute means nine i find it really bizarre of the way it's worded the i don't know what they're trying to get out i can't believe they're trying to deprive local townships when they've got a couple executive branch officials it makes no sense to me what might make sense is the fact that these local townships really aren't operating as quote executive branch or legislative which is what one case suggests but it's intermediate and that's the legal issue that's interesting to me how do they mean this absent any statute to work with a local government structure i understand qualified immunity one is easy to figure out everything else about the absolute immunity one easy to figure out local knowledge that's not for them that's the question that i'm at c i in the case having read quite a few of these cases and i'm sorry i can't do more to pull you to shore yeah at least to my short judge but i think that if well tell me a case if i might that clarifies it i don't i don't know of one that does your honor and so that's why i think we ought to i think the best result and the thing that makes most sense is to send us back to judge enough give us the opportunity to conduct some discovery  o what the township is made up town fire other employees what the duties are of each of these folks what their history has been of closing the beach what policies if any they have in place but we don't even have an affidavit from the supervisor or the clerk the individual defendants here telling us in their view what they have done and so i can discern as much as i can from the website and other reading about the township i have i think a good faith belief that they each had authority to close the beach if they had decided to do that on that day and so that's why that allegation was made against each of them but i think a plain reading of that statute understanding that i can't bring you to shore judge as much as i'd like is to say that it seems clear that you can't have multiple people entitled to absolute immunity when they are at that same level of government as you can have multiple legislators what right does it says a right as a says the elected that's the thing you're milking i get it it makes a lot of sense but then the question is what is the township and what are they doing are they acting legislatively or an executive branch fashion that's the question which i don't think the case is answer i'm quite confident discovery is not going to answer but you know it's it's up to the two of you how to do it well i think we'll hear from mr stra out the budget line item voted to remove the budget wine item from the township budget and therefore that person's paycheck was cut off and therefore he had to be terminated so that individual filed suit against all of the township trustees that voted against him and the court michigan court of appeals gave them all all of the trustees immunity under subsection five wonder when you asked me does it make any difference between charter township and general general auto in michigan the answer is under those circumstances clearly no and that's really what we have here there is no distinction these days board members essentially dimaio and kelly board members as elected without ever reference to section four one point seven zero your honor under one sixty eight which was cited in my initial brief were elected officials identified as officials in the township if they are entitled even though there might be multiples to immunity absolute immunity under subsection five now we've all spent a lot of time here arguing about subsection five the absolute issues we have spent very little time arguing about the gross negligence claim which is really the only claim that survived really hard to find a gross buells versus state of michigan a look at it and what happened there let me just give you a brief history of the facts the state of michigan has a institution where they provide educational services to people that are handicapped they have a swimming pool they hire one of the young men that was at this program who was lifeguard certified his attention is diverted by apparently some female students he's not paying attention to the pool another student dives into the pool and he drops the lifeguard is never his attention is never brought to that person to drown until some of the other students bring his attention to are the defendants in that case the defendant is the individual lifeguard and the state of michigan state of michigan was dismissed it's absolutely immune under subsection one of this section fourt and the michigan supreme court in june of two thousand and fifteen i might have that date wrong it might be september of two thousand and fifteen bond as a matter of law that the into tent of inattentiveness of that lifeguard was not the proximate cause of this young man's death now that is exactly what we have here so we have spent at the head of the kid die again i didn't hear  absolutely correct and what what happened there is that the michigan supreme court this is the supreme court of the state said that the proximate cause was not the young man's inattentiveness the guard's inattentiveness at all brief and it was decided this case was decided after the briefs were filed in the underlying court in the in the district court but before judge now if rendered your opinion and also one carefully thank you