Potential claims and liability for judges and court employees is an important consideration of the chief judge and court administrator. In anticipation of potential claims, an investigation should be conducted about obtaining attorney representation and indemnification or insurance coverage for liability protection of judges and court employees. If a claim arises, there are two important considerations: attorney representation and liability coverage by way of insurance or indemnification.
Since October 1, 1984 the Michigan attorney general has been required to defend judges of all state courts in certain situations. This obligation first appeared in the General Government Appropriations Act for Fiscal Year 1984-85. (1984 PA 222, ' 27) The language continues to appear in the General Government Appropriations Act for each fiscal year and states that "the attorney general shall defend judges of all state courts whenever a claim is made or a civil action is commenced for injuries to persons or property caused by the judge through the performance of the judge's duties while acting within the scope of his or her authority as a judge."
There are situations in which legal representation of judges, courts, and court personnel may be sought but are outside the scope of the language in these public acts.
Who May Represent
Courts and judges may be provided legal representation by the attorney general. If court employees are codefendants in actions against courts or judges, they may receive representation from the attorney general as well, at the request of the state court administrator. Courts, judges, or court employees may also receive representation from prosecuting attorneys, an attorney employed by the court’s funding unit, or by a judicial assistant. (OAG, 1979-1980, No. 5572, p 421, 423 [October 4, 1979], MCL 49.71-49.73, MCL 49.153, MCL 600.1481, MCL 691.1408)
Scope of Representation
The obligation of the attorney general to defend courts and judges of all state courts is administered through State Court Administrative Office Guidelines for Securing Attorney General Representation for Courts (dated December 2004). A judge or court may request and will receive representation by the attorney general in civil actions requesting monetary damages based on actions by the judge in his or her judicial or administrative capacity. Exempted are civil actions brought by a local government agency, mandamus, superintending control actions, and disciplinary proceedings. The mechanics by which requests for representation are made are also set forth in these guidelines.
Procedure for Providing Representation
Determination of Insurance Coverage or Other Means for Addressing Representation
A determination should be made as to whether there is any insurance coverage for a judge or court employee. If a judge or court employee has obtained insurance, legal representation is generally part of the coverage. Selection of an attorney is governed by the insurance policy terms. A determination should also be made as to whether there is representation for judges and/or court employees in employee handbooks, collective bargaining agreements, resolutions, or other official action of local funding units.
In the event a court or judge is a defendant or respondent in a matter covered by the SCAO Guidelines for Securing Attorney General Representation, a letter should be sent immediately after service of the summons and complaint to the state court administrator asking for attorney general representation. The original copy of the summons and complaint should be included with the request, along with the date of service and how service was made.
Insurance Coverage or Indemnification
Entitlement to Indemnification
Courts and judges receiving representation pursuant to the SCAO Guidelines for Securing Attorney General Representation for Courts are not entitled to indemnification from the state.
Payment of any settlement or judgment is not the responsibility of the State of Michigan or any of its agencies or boards. Payment is the responsibility of the court's local funding unit. (MCL 600.591, MCL 600.837 and MCL 600.8271, Cameron v Monroe County Probate Court, 457 Mich 423 )
Indemnification Through Other Means
A determination should also be made as to whether there is indemnification for judges and/or court employees in employer/employee handbooks, collective bargaining agreements, resolutions, or other official action of local funding units.
Representation/Indemnification Authorized; Not Required
State law authorizes, but does not require, a government agency to pay for, engage, or furnish an attorney for an officer or employee sued for injuries to persons or property caused by negligence while acting in the course of employment and scope of authority. The government agency may, but is not required to, indemnify its officers or employees. (MCL 691.1408)
If a court or judge has obtained judicial liability insurance, then the damages, interest, costs, and taxable fees may be payable to the extent of the coverage.