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### STATE OF MICHIGAN

COURT OF APPEALS

JULIE A. PUCCI,

Plaintiff-Appellee, UNPUBLISHED March 17, 2016

v No. 325052 Wayne Circuit Court NINETEENTH JUDICIAL DISTRICT COURT,

Garnishee Defendant-Appellant,

and

CHIEF JUDGE MARK W. SOMERS and COMERICA BANK, LC No. 13-014644-CZ

Defendants.

Before: S AAD , P.J., and S AWYER and H OEKSTRA

, JJ.

P ER C URIAM

.

Garnishee defendant, NineteenthJudicial Distri ct Court, appea ls as of right from the final judgment in which the trial court granted summary disposition i n favor of plaintiff, Julie A. Pucci, and ordered defendant Court to pay $1,183,330.96 in dama ges. Defendant Court contends that it has no obligation to pay damages because the judgment i n the underlying federal case was entered against defendant Judge Mark W. Somers individually and the federal court dismissed defendant Court as a party to t he underlying act ion. We agree and reverse and remand.

I. THE FEDERAL COURT PROCEEDINGS

The instant case arises from pl aintiff’s unlawful termination as Deputy Court
Administrator of the Nineteenth D istrict Court by then Chief Ju dge Mark W. Somers as part of a court-wide reorganization. In Pucci v Nineteenth Dist Court (Pucci I) , 565 F Supp 2d 792, 796- 802 (ED Mich, 2008), the federal district court provides a leng thy narrative of plaintiff’s employment history with defenda nt Court and the events surround ing her termination. In the following, we summarize the fact s after her termination.

On February 12, 2007, plaintiff filed a lawsuit pursuant to 42 USC 1983 in the United States District Court for the Eastern District of Michigan agai nst defendants Judge Somers, the-2- City of Dearborn, and the Nineteenth District Court. Plaintiff alleged that defendant Somers violated her First Amendment right to free speech and Fourteent h Amendment right to due process. Plaintiff claimed that Judge Somers wrongfully termin ated her position with the court because her domestic relationship with one of the others judges on the court, outside the bonds of marriage, was contrary to Somers’s religious beliefs. She furt her asserted that Judge Somers terminated her employment because she complained of his practic e of interjecting his personal religious beliefs into court pro ceedings and administrative mat ters. Plaintiff sued defendant Somers in both his individual cap acity and official capacity.

Subsequently, the City of Dearborn was dismissed from the case by stipulation of the parties and an order of the court. The remaining defendants so ught summary disposition on all counts of the plaintiff’s complaint, and sought appeal to the U nited States Court of Appeals for
the Sixth Circuit when the distr ict court denied their motion i n part. On appeal, plaintiff’s claims against defendant Court and defendant Somers in his official ca pacity were dismissed under Eleventh Amendment sovereign immunity. Pucci v Nineteenth Dist Court (Pucci II) , 628 F3d 752, 769 (CA 6, 2010). The damage claims against defendant Som ers in his personal capacity remained and proceeded to trial. Id . On June 30, 2011, the jury returned a verdict against him, concluding that he violated pla intiff’s right to procedural due process and retaliated against her for the exercise of her First Amendment rights by terminating h er employment. It found in
defendant Somers’s favor on the sex-discrimination claim. Ther eafter, the federal district court entered a judgment in the amount of $1,173,125.30 against defen dant Somers in accordance with the jury’s verdict. The jury’s verdict and award were affirmed on appeal in Pucci v Nineteenth Dist Court (Pucci III) , 596 Fed Appx 460, 462 (CA 6, 2015).

After entry of the judgment, plaintiff sought to collect from Judge Somers’s personal assets and began garnishing his salary on a periodic basis. Pl aintiff also attempted to collect from the City of Dearborn by filing non-periodic writs of garni shment against it in federal court seeking payment of the judgment. The federal district court qu ashed the writs of garnishment, finding that it lacked jurisdiction to adjudicate the matter. Pucci v Somers (Somers) , 962 F Supp 2d 931, 933, 939 (ED Mich, 2013). In the court’s opinion dismi ssing the matter, it noted “other developments” in the case, specifically the indemnification the ory. Id . at 933-934. Plaintiff sought garnishment against the City on the basis of an indemnif ication policy that defendant Somers issued only nine days before the federal trial began. T he policy provided that the
Nineteenth District Court would indemnify any judgment entered against judges of the Court for discretionary administrative decisions within the scope of thei r authority, including employment and reorganization decisions. T he district court acknowledged that new legal questions must be
addressed before it could be det ermined that defendant City mus t indemnify defendant Somers.

Id . at 938. The district court ruled that because the indemnific ation matter was “factually and legally different than the matters raised in the main case,” pl aintiff must seek remedies against the Court and the City under the federal judgment in state cour t. Id . at 933, 936.

II. THE CIRCUIT COURT PROCEEDINGS

Accordingly, on November 11, 2 013, plaintiff domesticated the federal judgment in Wayne Circuit Court. The trial court issued a writ on defendan t Court as garnishee to enforce its obligation to indemnify defendant Somers. Plaintiff and defend ant Court filed cross motions for summary disposition pursuant to MCR 2.116(C)(10) seeking a ruli ng on the issue of liability.-3- Plaintiff contended that the wr it of garnishment issued on defe ndant Court was proper on the basis of the indemnification policy, which covered its chief ju dge for personal obligations where he was discharging his administrative functions or dispensing t he business of the district court. Plaintiff argued that she was entitled to summary disposition a gainst defendant Court as the garnishee defendant for the dam ages owed under the indemnificat ion policy for the benefit of
defendant Somers. Defendant Cour t asserted that it could not b e held responsible for an individual capacity judgment in a case in which it had been gra nted sovereign immunity from suit. Additionally, it argued th at the indemnification policy on which plaintiff was attempting to collect was unenforceable, and defendant Somers’s actions regar ding the termination of plaintiff’s employment were not within the scope of the policy.

The trial court issued its decision, holding that defendant Co urt was responsible for the unpaid judgment under the indemnif ication policy that defendant Somers issued. The trial court
found that defendant Somers’s ac tion of eliminating plaintiff’s position at the court, while an infringement on her constitutional rights, was done in his admi nistrative capacity as a judge of the district court. The trial court explained that he had the power as chief judge to manage the performance of the court’s pers onnel, and therefore was “exerci sing the authority that was vested in him . . . when he discharged the plaintiff.” Further, the t rial court found that the indemnification policy was enforceable for the judgment entered against defendant Somers in his individual capacity. The trial court acknowledged that the cas e presented a “challeng[ing]” argument regarding separation of p owers, in particular where th e chief judge was “personally motivated” to initiate the agreement binding the funding unit. Nevertheless, the trial court determined that defendant Somers was operating within the funct ion of the court when he adopted the indemnification policy.

On December 11, 2014, the trial court entered an order in acco rdance with its ruling from the bench, granting plaintiff’s motion for summary disposition and denying defendant Court’s motion for summary disposition. The trial court entered judgme nt in favor of plaintiff and against defendant Court in the amount of $1,183,330.96. This appeal followed.

III. STANDARD OF REVIEW

On appeal, a trial court’s decision on a motion for summary di sposition brought under MCR 2.116(C)(10) is reviewed de novo. Johnson v Recca , 492 Mich 169, 173; 821 NW2d 520 (2012). When deciding a motion for summary disposition, a cour t must consider the pleadings, affidavits, depositions, admissions and other documentary evide nce submitted in the light most favorable to the nonmoving party, Joseph v Auto Club Ins Ass’n , 491 Mich 200, 206; 815 NW2d 412 (2012), and all reasonable inferences are to be drawn in fa vor of the nonmoving party, Dextrom v Wexford Co , 287 Mich App 406, 415; 789 NW2d 211 (2010). Summary disposit ion is proper if the evidence fails t o establish a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id . A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds could d iffer. Debano-Griffin v Lake Co Bd of Comm’rs , 493 Mich 167, 175; 828 NW2d 634 (2013).-4- IV. SOVEREIGN IMMUNITY

Defendant Court asserts that the trial court erred in granting summary disposition in favor of plaintiff because it cannot be held liable as a garnishee de fendant for a judgment entered against defendant Somers in his individual capacity, and it was granted sovereign immunity in the underlying federal lawsuit. W e first address defendant Cou rt’s sovereign immunity argument because, if immunity attaches, it bars any further action again st the court regarding this matter.

Before trial, the Sixth Circuit Court held that defendant Cour t had Eleventh Amendment immunity from plaintiff’s § 1983 civil ri ghts action. Pucci II , 628 F3d at 761-764. The Eleventh Amendment to the United States Constitution provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of t he United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

“Although by its terms the Amendme nt applies only to suits agai nst a State by ci tizens of another State, [United States Supreme C ourt] cases have extended the Am endment’s applicability to suits by citizens against their own States.” Bd of Trustees of the Univ of Alabama v Garrett , 531 US 356, 363; 121 S Ct 955; 148 L Ed 2d 866 (2001). Moreover, the Amendment precludes suits in
both federal and state courts. Alden v Maine , 527 US 706, 712; 119 S Ct 2240; 144 L Ed 2d 636 (1999); Ernst v Rising , 427 F3d 351, 358 (CA 6, 2005).

Defendant Court contends that its sovereign immunity from plai ntiff’s claims in the underlying federal action includes protection fromgarnishment proceedings in this lawsuit. We disagree and hold that Eleventh Amendment immunity is inapplicable to the present collection proceeding, which is based on a contractual obligation. The ma tter before the court in the underlying Pucci case was a federal civil rights violation. Pucci II , 628 F3d at 755. Here, plaintiff brought a separate action for garnishment based on anindemnification agreement potentially binding defendant Court. The federal district court ruled that the federal court did not have subject matter jurisdiction to determine the indemnificati on matter and the City of Dearborn’s potential responsibility for funding the judgment be cause the indemnification issue was “a new theory” not part of the previous proceedings. Somers , 962 F Supp 2d at 937-939. The district court concluded that “[Plaintiff] must seek her re medies against the state district court and the City of Dearborn under the federal judgment in st ate court.” Id . at 933. Therefore, the federal court effectively ac knowledged that sovereign immun ity did not bar plaintiff’s collections suit based on the indemnity agreement.

Moreover, defendant claims that collecting through garnishment is contrary to the purpose of sovereign immunity. Defendant cites Wilson v Beebe , 770 F2d 578, 587-588 (CA 6, 1985) for the proposition that sov ereign immunity provides prot ection for governmental units from direct or indirect lawsuits that would impose a liability requiring payment from public funds. However, the Wilson Court distinguished between an obligation imposed on the state and an obligation voluntarily assumed by the state. Id . at 588. It found tha t the state, not the individual, was entitled to immunity from liability, and a comm itment to indemnify the individual did not “clothe him with this immunity.” Id . Nevertheless, this did not preclude the state from electing to i ndemnify the individual. Id . at 587.-5- Here, defendant Court voluntarily adopted an agreement to inde mnify defendant Somers for the judgment against him. This obligation is distinct from any constitutional matter protected under sovereign immunity. As in Wilson , there is a difference between legal liability for an action and a voluntarily assumed obligation to indemnify. For the above-stated reasons, we conclude that defendant Court cannot rely on sovereign immunity to avoid its assumed obligation to indemnify defendant Somers for the judgment again st him.

V. INDEMNIFICATION AGREEMENT

Next, we address defendant Court’s claim that it cannot be hel d liable as a garnishee defendant for a judgment entered against defendant Somers in hi s individual capacity. “The purpose of a garnishment proceeding is to allow a judgment cred itor to satisfy her judgment from money, credits, or other propert y belonging to the judgment deb tor that is in the hands of
someone else.” Somers , 962 F Supp 2d at 935. Michigan law recognizes such garnishme nt proceedings. Id . Plaintiff brought the instant action against defendant Court based on the judgment she obtained in federal court against defendant Somers individually under the theory that defendant Court voluntarily assumed the obligation to inde mnify defendant Somers for liability arising from the discha rge of his duties for the district court.

There is case law to suggest that if the judgment were against a state district court or a judge in an official capacity, a local funding unit, such as th e City, would likely be obliged to satisfy the judgment. See Cameron v Monroe Co Probate Court , 457 Mich 423, 425; 579 NW2d 859 (1998) (acknowledging that the plaintiffs “received $25,000 from the state of Michigan” in satisfaction of a judgment in their favor against a state proba te court); Anspach v Livonia , 140 Mich App 403, 410; 364 NW2d 336 (1985) (observing that the loca l governmental entity “has a statutory duty to pay the cost o f financing the [defendant dist rict court], which would include any judgment plaintiff might rec over against” the court); Dolan v Ann Arbor , 666 F Supp 2d 754, 760-763 (ED Mich, 2009) (concluding it was unclear whether the city would be liable for any judgment the plaintiff might obtain against the Fifteenth Distr ict Court). However, as defendant Court contends, the judgment is against defendant Somers in his individual capacity, not his official capacity.

The Somers court observed this distincti on, explaining that a lawsuit aga inst a public official in his official capacity is merely “another way of ple ading an action against an entity of which an officer is an agent.” Somers , 962 F Supp 2d at 938, quoting Monell v Dep’t of Soc Servs of City of New York , 436 US 658, 690 n 55; 98 S Ct 2018; 56 L Ed 2d 611 (1978). O n the other hand, “[p]ersonal capacity suits seek to impose personal liability upon a government
official for actions he takes under color of state law.” Somers , 962 F Supp 2d at 938, quoting Kentucky v Graham , 473 US 159, 165; 105 S Ct 3099; 87 L Ed 2d 114 (1985). Accor dingly, “an award of damages against an official in his personal capacity c an be executed only against the official’s personal assets.” Somers , 962 F Supp 2d at 938, quoting Kentucky , 473 US at 166.
“The distinction between those tw o forms of suit suggests that the effects of a j udgment against a district court cannot be uncritically mapped onto a judgment ag ainst a judge in his personal capacity.” Somers , 962 F Supp 2d at 938.

Regardless of this variation in the nature of suits against go vernmental personnel, plaintiff argues that an indemnification policy attaches liabil ity to defendant Court in this case.-6- As an initial matter, we must look to the language of the polic y to determine if defendant Court agreed to be obliged to a judgmen t entered against a judge in h is individual capacity. That policy provides, in relevant part:

[I]t is the official policy of t he 19th District Court that the supervisory personnel identified herein [later defined to include all judges of the C ourt] shall be indemnified and held harmless for the costs of defending and fo r any judgment entered against them resulting from any civil action for discre tionary administrative decisions made within the scope of his or her au thority including decisions regarding the hiring, firing and/or discipline of its employees and the creation, reorganization and/or elimination of personnel positi ons as they shall deem appropriate to the efficient, economical and necessary fun ctioning of the

court.

The policy further provides that if the district court does not have the funds to pay such a judgment, the court would submit the judgment to the City of De arborn for appropriation of the required funds.

The plain language of the indemnification policy does not dist inguish between official and personal capacity judgments. Rather, it establishes an obl igation to pay where a judge was discharging administrative duties of the court, including makin g employment and reorganization decisions. This language coinc ides with MCR 8.110(C)(3), which provides that the hiring and firing of court personnel is the responsibility of the chief ju dge of the district court. See also

Pucci II , 628 F3d at 752. The trial c ourt found this obligation to be present in the instant case, acknowledging the current chief ju dge’s opinion that the court would be responsible where a judge violates an employee’s constitutional right within the di scharge of the judge’s professional duties. Therefore, defendant Court assumed the obligation of p aying the judgment against defendant Somers because it was based on an employment decision

.

However, as the federal court concluded, there remains a legal question regarding the validity of the policy. Somers , 962 F Supp 2d at 938. Defendant Court questions the authorit y of defendant Somers and his succ essor chief judge to implement the indemnification policy issued only days before the trial began. According to defendan t Court, the legis lature, not the judiciary, must initiate all funding policies. Defendant Court cites 46th Circuit Trial Court v Crawford Co, 476 Mich 131, 141; 719 NW2d 553 (2006), for its holding that “t he most fundamental aspect of the ‘legisla tive power’ . . . is the powe r to tax and to appropriate for specified purposes.” In Crawford , the chief judge of the circuit court sued the court’s funding unit to compel funding for an enha nced pension plan that he wan ted to adopt for court employees for the purpose of boosting morale. Id . at 136-138. According to the Michigan Supreme Court, the judiciary is able to compel appropriations not legislativel y allocated in “rare instances” to meet critical needs of the judiciary and circumstances where “t he overall operation of the court, or a constitutional function is in jeopardy.” Id . at 142-143, 147-148, quoting Employees & Judge of the Second Judicial Di st Court v Hillsdale Co , 423 Mich 705, 717-719; 378 NW2d 744 (1985). To institute such authority, the court must prove by c lear and convincing evidence that the funding is reason able and necessary. Crawford , 476 Mich at 149. The Crawford Court refused to find a right to compel funding from the defendants, concluding that the appropriation was not necessary for the court to “function serviceably.” Id . at 155. A similar conclusion can-7- be found in Hillsdale , 423 Mich at 723, where the Mich igan Supreme Court ruled that the chief judge lacked the authority to c ompel additional funding through administrative order.

Defendant Court asserts that a judge’s inherent authority over personnel matters does not grant him the unfettered ability to implement any appropriation he desires for any issue that touches on a personne l decision. In that r egard, the Michigan Supreme Court has held, it is “well established” that “in the exercise of its employment responsibi lities the judiciary must take into account the limited dollars approp riated to it by the legislati ve branch in the exercise of the Legislature’s own constitutional responsibility .” Judicial Attorneys Ass’n v Michigan , 459 Mich 291, 302; 586 NW2d 894 (1998).

Plaintiff counters that it was w ithin defendant Somers’s autho rity to issue the indemnification policy because it was an administrative decisio n. Plaintiff cites MCR 8.110(C) and the State Court Administrative Office’s guidelines as permi tting defendant Somers’s actions
in this case. MCR 8.110(C) provides:

(2) As the presiding officer of the court, a chief judge shall :

* * *

(c) initiate policies concerning the court’s internal operatio ns and its position on external matte rs affecting the court;

* * *

(3) As director of the administration of the court, a chief ju dge shall have administrative superintending pow er and control over judges of the court and all court personnel with the authority and responsibility to:

* * *

(d) supervise the performance of all court pers onnel, with aut hority to hire, discipline, or discharge such personnel, with the exception of a judge’s secretary and law clerk, if any;

* * *

(f) supervise court finances, including financial planning, th e preparation and presentation of budgets, and f inancial reporting;

* * *

(i) perform any act or duty or enter any order necessarily inc idental to carrying out the purposes of this rule.

Plaintiff notes that the SCAO guidelines on “Risk Management” p rovide for liability protection of judges and court employees through attorney representation a nd liability coverage through
insurance or indemnification. F urthermore, although it does no t specify who has the authority to-8- make an indemnification decision, MCL 691.1408 permits a govern mental agency to indemnify one of its employees for a judgment entered against that employ ee “while in the course of employment and while acting wit hin the scope of his or her auth ority.”

In addition, plaintiff cites Judicial Attorneys Ass’n , 459 Mich at 299, for the proposition that “the fundamental and ultimate responsibility for all aspec ts of court administration, including operations and personnel matters within the trial cou rts, resides within the inherent authority of the judicial branch.” This discretion is broad an d has been interpreted as granting chief judges the authority “to take measures not prohibited by the letter or spirit of the court
rules.” Schell v Baker Furniture Co , 461 Mich 502, 513; 607 NW2d 358 (2000).

Moreover, in Cameron , 457 Mich at 425, employees of the court alleged that the prob ate court judge discriminated against them and violated their civil rights. A judgment of $25,000 was entered against the probate court. Id . The Michigan Supreme Court ruled that a county is obligated to pay such judgments. Id . at 428. It held that while “employment discrimination is not an ‘expense of justice,’” the “supervision and administrati on of court personnel is a necessary expense of justice for which the county is expected t o pay.” Id . at 427-428. It is noteworthy that the judgment in Cameron was entered against the court, id . at 425, while the judgment was entered against the judge personally in the instan t case. It is upon this distinction that we believe that this case ultimately turns. While we agre e that a Chief Judge can adopt an indemnification policy that covers the court’s court employees and judges while acting in their official capacity, we do not believe that this power extends to indemnifying judges for liability incurred in their personal capacity. Therefore, because the ju dgment in this case is against the judge in his personal capacity, the indemnification policy does not apply and defendant Court is
not liable.

Reversed and remanded with instructions to enter summary dispo sition in favor of
defendant Court. We do not retai n jurisdiction. Defendant Cou rt may tax costs.

/s/ Henry William Saad /s/ David H. Sawyer
/s/ Joel P. Hoekstra