Melissa Mays v. Governor Rick Snyder ( 2020 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Bridget M. McCormack Stephen J. Markman
Brian K. Zahra
Chief Justice Pro Tem:
Richard H. Bernstein
David F. Viviano Elizabeth T. Clement
Megan K. Cavanagh
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
MAYS v GOVERNOR
Docket Nos. 157335 through 157337 and 157340 through 157342. Argued March 4,
2020 (Calendar No. 2). Decided July 29, 2020.
Melissa Mays and other water users and property owners in Flint, Michigan (plaintiffs)
brought a class action in the Court of Claims against defendants Governor Rick Snyder, the state
of Michigan, the Michigan Department of Environmental Quality (the MDEQ), and the
Michigan Department of Health and Human Services (collectively, the state defendants) and
against defendants Darnell Earley and Jerry Ambrose (the city defendants), who are former
emergency managers for the city of Flint. Plaintiffs’ complaint alleged that from 1964 through
late April 2014, the Detroit Water and Sewerage Department (DWSD) supplied Flint water users
with their water, which was drawn from Lake Huron. On April 16, 2013, the Governor
authorized a contract to explore the development of an alternative water delivery system, and at
the time of the contract, the Governor and various state officials knew that the Flint River would
serve as an interim source of drinking water for the residents of Flint. Plaintiffs alleged that the
Governor and these officials had knowledge of a 2011 study commissioned by Flint officials that
cautioned against the use of Flint River water as a source of drinking water. On April 25, 2014,
under the direction of Earley and the MDEQ, Flint switched its water source from the DWSD to
the Flint River, and Flint water users began receiving Flint River water from their taps. Plaintiffs
alleged that the switch occurred despite the fact that the water treatment plant’s laboratory and
water-quality supervisor warned officials that the water treatment plant was not fit to begin
operations and despite the fact that the 2011 study had noted that the water treatment plant would
require facility upgrades costing millions of dollars. Less than a month after the switch, state
officials began to receive complaints from Flint water users about the quality of the water
coming out of their taps. In June 2014, residents complained that they were becoming ill after
drinking the tap water. In October 2014, General Motors announced that it was discontinuing
the use of Flint water in its Flint plant due to concerns about the corrosive nature of the water,
and in the same month, Flint officials expressed concern about a legionellosis outbreak and
possible links between the outbreak and Flint’s switch to the river water. In February 2015, the
United States Environmental Protection Agency (the EPA) advised the MDEQ that the Flint
water supply was contaminated with iron at levels so high that the testing instruments could not
measure the exact level, and in the same month, the MDEQ was advised that black sediment
found in some of the tap water was lead. Plaintiffs alleged that during this time, state officials
failed to take any significant remedial measures to address the growing health threat and instead
continued to downplay the health risk, advising Flint water users that it was safe to drink the tap
water while simultaneously arranging for state employees in Flint to drink water from water
coolers installed in state buildings. Additionally, plaintiffs alleged that the MDEQ advised the
EPA that Flint was using a corrosion-control additive with knowledge that the statement was
false. Through the summer and fall of 2015, state officials allegedly continued to cover up the
health emergency, discredit reports that confirmed the presence of lead in the water system and a
spike in the percentage of Flint children with elevated blood lead levels, and advise the public
that the drinking water was safe despite knowledge to the contrary. In early October 2015, the
Governor acknowledged that the Flint water supply was contaminated with dangerous levels of
lead. On October 8, 2015, the Governor ordered Flint to reconnect to the DWSD, and the
reconnection occurred on October 16, 2015. On January 21, 2016, plaintiffs brought a four-
count class-action complaint against all defendants in the Court of Claims for state-created
danger, violation of plaintiffs’ due-process right to bodily integrity, denial of fair and just
treatment during executive investigations, and unconstitutional taking via inverse condemnation.
The state and city defendants separately moved for summary disposition on all four counts,
arguing that plaintiffs had failed to satisfy the statutory notice requirements in MCL 600.6431 of
the Court of Claims Act, MCL 600.6401 et seq., failed to allege facts to establish a constitutional
violation for which a judicially inferred damages remedy is appropriate, and failed to allege facts
to establish the elements of any of their claims. The Court of Claims, MARK T. BOONSTRA, J.,
granted defendants’ motions for summary disposition on plaintiffs’ causes of action under the
state-created-danger doctrine and the Fair and Just Treatment Clause of the 1963 Michigan
Constitution, art 1, § 17, after concluding that neither cause of action is cognizable under
Michigan law. However, the Court of Claims denied summary disposition on all of defendants’
remaining grounds, concluding that plaintiffs satisfied the statutory notice requirements and
adequately pleaded claims of inverse condemnation and a violation of their right to bodily
integrity. In Court of Appeals Docket No. 335555, the state defendants appealed, and the city
defendants and plaintiffs cross-appealed; in Court of Appeals Docket No. 335725, the Court of
Appeals granted the city defendants’ application for leave to appeal; and in Court of Appeals
Docket No. 335726, the Court of Appeals granted the state defendants’ application for leave to
appeal. The Court of Appeals consolidated the appeals. In its judgment, the Court of Appeals,
JANSEN, P.J., and FORT HOOD, J. (RIORDAN, J., dissenting), affirmed the Court of Claims’ rulings
on the statutory notice requirements, plaintiffs’ claim of violation of their right to bodily
integrity, and plaintiffs’ claim of inverse condemnation. 323 Mich. App. 1 (2018). Both the state
defendants and the city defendants sought leave to appeal in the Supreme Court. The Supreme
Court granted the applications for leave to appeal. 503 Mich. 1030 (2019).
In a lead opinion by Justice BERNSTEIN, joined by Chief Justice MCCORMACK and Justice
CAVANAGH, and a separate opinion by Justice VIVIANO, concurring in part and dissenting in part,
the Supreme Court held:
Plaintiffs sufficiently alleged a claim of inverse condemnation to survive a motion for
summary disposition brought under MCR 2.116(C)(8). Viewed in the light most favorable to
plaintiffs and accepting their factual allegations as true, the pleadings established that
defendants’ actions were a substantial cause of the decline in plaintiffs’ property value, that
defendants took affirmative actions directed at plaintiffs’ property, and that plaintiffs suffered a
unique or special injury different in kind, not simply in degree, from the harm suffered by all
persons similarly situated. While state and municipal agencies performing governmental
functions are generally immune from tort liability, the government may voluntarily subject itself
to liability, which also means that it may place conditions or limitations on the liability imposed.
One condition on the right to sue state governmental agencies is the notice provision of the Court
of Claims Act, MCL 600.6431. But it would be premature to grant summary disposition
regarding the inverse-condemnation claim on the basis of the six-month notice period because
questions of fact remain as to when plaintiffs’ claims accrued.
Court of Appeals judgment regarding plaintiffs’ inverse-condemnation claim expressly
affirmed; Court of Appeals judgment otherwise affirmed by equal division, including with regard
to whether plaintiffs presented a cognizable claim for violation of their right to bodily integrity
under Michigan’s Due Process Clause; case remanded to the Court of Claims for further
proceedings.
In the lead opinion, Justice BERNSTEIN, joined by Chief Justice MCCORMACK and Justice
CAVANAGH, stated that plaintiffs adequately alleged a claim of inverse condemnation. A
plaintiff alleging inverse condemnation must establish that the government’s actions were a
substantial cause of the decline of the property’s value and that the government abused its
powers in affirmative action directly aimed at the property. The right to just compensation in the
context of an inverse-condemnation suit for diminution in value exists only when the landowner
can allege a unique or special injury, i.e., an injury that is different in kind, not simply in degree,
from the harm suffered by all persons similarly situated. In this case, plaintiffs met the first
element of an inverse-condemnation claim because they alleged that switching the water source
from the DWSD to the Flint River resulted in physical damage to pipes, service lines, and water
heaters and that the contaminated water limited the use of their property and substantially
impaired its value and marketability because after the water crisis became public knowledge,
lenders were hesitant to authorize loans for the purchase of realty within Flint and property
values decreased. Plaintiffs met the second element of an inverse-condemnation claim because
they alleged that defendants committed an affirmative act directed at their property when the
state defendants authorized the city defendants to use the Flint River as an interim water source
while both sets of defendants knew that using the river could result in harm to property.
Defendants then allegedly concealed or misrepresented data and made false statements about the
safety of the river water in an attempt to downplay the risk of its use and consumption.
Following United States Supreme Court precedent in comparing plaintiffs to a generalized group
of similar individuals—other municipal water users who generally experience harms such as
service disruptions and externalities associated with construction—plaintiffs alleged injuries that
were different in kind, not just degree, from other municipal water users when they alleged that
water contaminated with Legionella bacteria and toxic levels of iron and lead flowed through
their pipes, service lines, and water heaters, which damaged the infrastructure and diminished
their property’s value. Accordingly, plaintiffs’ allegations were sufficient to conclude that
plaintiffs had alleged a claim of inverse condemnation to survive a motion for summary
disposition. With regard to defendants’ argument that plaintiffs failed to satisfy the statutory
notice requirements, MCL 600.6431 provides that in actions for property damage or personal
injuries, the claimant must file with the clerk of the court of claims a notice of intention to file a
claim or the claim itself within six months following the happening of the event giving rise to the
cause of action. Under MCL 600.5827, a claim accrues at the time the wrong upon which the
claim is based was done, which is the date on which the defendant’s breach harmed the plaintiff.
In this case, questions of fact remained as to when plaintiffs sustained their injuries; therefore,
summary disposition at this stage of the litigation was premature. With regard to plaintiffs’
constitutional-tort claim, plaintiffs sufficiently pleaded a claim for violation of their substantive
due-process right to bodily integrity under Const 1963, art 1, § 17. While the Legislature has
never created an exception to immunity for a constitutional tort, Smith v Dep’t of Pub Health,
428 Mich. 540 (1987), aff’d sub nom Will v Mich Dep’t of State Police, 491 U.S. 58 (1989), held
that when a plaintiff brings a constitutional-tort claim against the state, in certain instances, the
government is not immune from liability for violations of its Constitution. Michigan courts have
recognized the existence of constitutional torts as outlined in Smith and, in certain circumstances,
have allowed constitutional-tort claims to survive motions for summary disposition.
Accordingly, plaintiffs sufficiently alleged a constitutional tort for violation of their right to
bodily integrity when they alleged that defendants’ decision to switch the city of Flint’s water
source to the Flint River, which defendants knew was contaminated, resulted in a nonconsensual
entry of toxic water into plaintiffs’ bodies. Plaintiffs’ allegations painted a picture of a public
health crisis of the government’s own making, intentionally concealed by state actors despite
their knowledge that Flint residents were being harmed. Those actions, if proven, were shocking
to the conscience. With regard to inferred damages, while no test for assessing a damages
inquiry for a constitutional violation has ever been endorsed, the multifactor test outlined in
Justice BOYLE’s separate opinion in Smith provided a framework for assessing a damages
inquiry. Under that test, various factors are weighed, including: (1) the existence and clarity of
the constitutional violation itself; (2) the degree of specificity of the constitutional protection; (3)
support for the propriety of a judicially inferred damages remedy in any text, history, and
previous interpretations of the specific provision; (4) the availability of another remedy; and (5)
various other factors militating for or against a judicially inferred damages remedy. In
considering each of the five factors in that test, the first and fifth factors weighed in favor of
inferring a damages remedy, the second and third factors weighed somewhat against recognizing
a damages remedy, and the fourth factor was neutral regarding the propriety of an inferred
damages remedy. Recognizing that discovery had not yet occurred and accepting plaintiffs’
allegations as true, at this stage of the litigation, holding that monetary damages were unavailable
for this claim would have been premature.
In a separate concurrence, Justice BERNSTEIN wrote to counter Justice MARKMAN’s
arguments about plaintiffs’ purported failure to adhere to the Court of Claims Act’s statutory
notice requirements and to counter Justice VIVIANO’s argument that plaintiffs should be denied
the right to sue for their personal injuries that resulted from a violation of their right to bodily
integrity and should be denied a damages remedy. Justice BERNSTEIN agreed with the Court of
Appeals’ application of the harsh-and-unreasonable-consequences exception to the MCL
600.6431 notice requirement in the event that plaintiffs’ claims are proved but untimely. While
Rowland v Washtenaw Co Rd Comm, 477 Mich. 197 (2007), Trentadue v Buckler Automatic
Lawn Sprinkler Co, 479 Mich. 378 (2007), and McCahan v Brennan, 492 Mich. 730 (2012), each
demanded strict compliance with statutory limitations and notice requirements in the context of
legislatively granted rights, no Supreme Court case has ever held that constitutional claims
against the state should be treated like those legislatively granted rights. Justice BERNSTEIN also
would affirm the Court of Appeals’ ruling that the fraudulent-concealment exception of MCL
600.5855 applies to MCL 600.6431 and that this exception may provide an alternative basis to
deny defendants’ motions for summary disposition if plaintiffs’ claims are proved but untimely.
The omission of a fraudulent-concealment exception to MCL 600.6431 is not reconcilable with
the Legislature’s intent to provide claimants with two years from the date of discovery to bring
suit for harm that was fraudulently concealed, as expressed in MCL 600.6452(2). Adopting
defendants’ arguments as they relate to fraudulent concealment would result in reading out MCL
600.6452(2) entirely, because plaintiffs would never be able to use the fraudulent-concealment
exception. Finally, the Michigan Supreme Court is the only institution that determines the
meaning of the Michigan Constitution, and it does so independently of the Legislature’s action or
inaction in a given area. Justice BERNSTEIN therefore would have held that an examination of the
text of Michigan’s Due Process Clause and case precedents pertaining to this provision revealed
that Michigan’s Due Process Clause plainly encompasses a right to bodily integrity.
Chief Justice MCCORMACK, joined by Justice CAVANAGH, fully concurred with the lead
opinion but wrote separately to respond to Justice VIVIANO’s critique of Smith. Chief Justice
MCCORMACK disagreed with Justice VIVIANO’s argument that Smith’s foundations have been
eroded by the United States Supreme Court’s partial retreat from Bivens v Six Unknown Fed
Bureau of Narcotics Agents, 403 U.S. 388 (1971), which held that a plaintiff may obtain monetary
damages for injuries sustained as a result of federal agents’ violation of the Fourth Amendment.
It was not clear that the relevant holding of Smith was at all or exclusively based on Bivens.
Smith never cited or referred to Bivens. Additionally, like Smith, Bivens established that
monetary damages may be available to remedy a constitutional violation even in the absence of
statutory authorization for such a claim. Though the United States Supreme Court has declined
to extend Bivens to new contexts and claims in recent years, its fundamental principles are good
law. Even assuming that Smith was a state Constitution, Bivens-like decision, the Michigan
Supreme Court decides the meaning of the Michigan Constitution and does not take its cue from
any other court, including the United States Supreme Court. Furthermore, the critiques of Bivens
were far less weighty here because there are no corresponding federalism concerns. Perhaps
most importantly, there was no federal analogue for the type of action here, which diminishes the
relevance of the Supreme Court’s Bivens jurisprudence. The typical Bivens scenario arises from
errant conduct by a rogue federal official, but plaintiffs in this case alleged that the government
itself was responsible for a conscience-shocking constitutional tort committed against the
citizens of an entire city. This action—against these particular defendants—could not have been
brought in federal court. However, Smith held that Michiganders can sue the government
directly for violating their Michigan constitutional rights. These meaningful differences between
federal Bivens claims and Michigan constitutional-tort actions made the United States Supreme
Court’s Bivens jurisprudence of limited value when determining how to approach state
constitutional torts.
Justice VIVIANO, concurring in part and dissenting in part, agreed with the lead opinion’s
analysis of plaintiffs’ inverse-condemnation claim and with the lead opinion’s remand for further
factual development to determine when that claim accrued. But he would have reversed the
Court of Appeals’ denial of defendants’ motion for summary disposition concerning plaintiffs’
claim for a violation of bodily integrity because he did not believe that substantive due process
encompasses a right to be protected from exposure to contaminated water and he did not believe
that plaintiffs alleged conscience-shocking conduct on the part of defendants. A substantive due-
process analysis must begin with a careful description of the asserted right and a determination
of whether that right is deeply rooted in this country’s history. In this case, the right that
plaintiffs asserted in their amended complaint was a right not to be exposed to contaminated
water, and no caselaw existed holding that such a right is encompassed in substantive due
process. Several cases explicitly hold that there is no right to a contaminant-free environment.
The Court of Appeals in this case did not follow this analysis and erred by describing the right so
generally. Furthermore, plaintiffs did not allege conscience-shocking behavior. The bar for
conduct that shocks the conscience is so high that it has been described as virtually
insurmountable. In this case, plaintiffs alleged that defendants switched Flint’s water source
despite a study cautioning against using the Flint River, but additional studies stated that the
initial study was unreliable. The studies and expert opinions plaintiffs cited in their complaint
were not sufficient to show that defendants’ behavior was deliberately indifferent. Other
evidence had to be weighed in the balance: former Governor Snyder testified that he was
repeatedly assured by the MDEQ that the water was safe, and there was no broad consensus that
using the Flint River as a water source would cause a serious public health crisis. While
mistakes had been made, plaintiffs did not allege actions that surmounted the high bar of
conscience-shocking behavior. Furthermore, Justice VIVIANO would not have inferred a
damages remedy even if plaintiffs did allege a substantive due-process claim for two reasons:
even if Smith applied, the factors that Justice BOYLE listed in her partial concurrence for
implying an inferred damages remedy weighed against the creation of a claim for damages, and
Justice VIVIANO had doubts about whether Smith was correctly decided and whether it should be
extended. Additionally, Justice VIVIANO stated that an implied claim for damages arising from a
state constitutional violation would raise serious separation-of-powers concerns.
Justice MARKMAN, joined by Justice ZAHRA, dissenting, would have reversed the
decision of the Court of Appeals and remanded the case to the Court of Claims for entry of an
order disposing of all of plaintiffs’ claims and dismissing the case because plaintiffs failed to
comply with MCL 600.6431(3), which required plaintiffs to file a notice of intention to file a
claim or the claim itself within six months following the happening of the event giving rise to the
cause of action. The period of limitations begins to run when a plaintiff suffers harm, not when a
plaintiff first learns of that harm. In this case, plaintiffs filed their complaint on January 21,
2016, and thus the event giving rise to the cause of action must have happened on or after
July 21, 2015, for plaintiffs’ action to have been filed in a timely manner under MCL
600.6431(3). Because plaintiffs alleged in their complaint and in their amended complaint that
the event giving rise to the cause of action was the switching of the water supply on April 25,
2014, Justice MARKMAN would have held that plaintiffs’ action was untimely. Furthermore,
Justice MARKMAN would have held that the harsh-and-unreasonable-consequences exception and
the fraudulent-concealment exception of MCL 600.5855 were each clearly inapplicable.
Justice CLEMENT did not participate because of her prior involvement as chief legal
counsel for Governor Rick Snyder.
©2020 State of Michigan
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Bridget M. McCormack Stephen J. Markman
Brian K. Zahra
Chief Justice Pro Tem:
Richard H. Bernstein
David F. Viviano Elizabeth T. Clement
Megan K. Cavanagh
FILED July 29, 2020
STATE OF MICHIGAN
SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157335-7
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157340-2
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants.
BEFORE THE ENTIRE BENCH (except CLEMENT, J.)
BERNSTEIN, J.
This putative class action involves a series of events commonly referred to as the
“Flint water crisis.” Plaintiffs, who are water users and property owners in the city of Flint,
sued former Governor Rick Snyder, the state of Michigan, the Michigan Department of
Environmental Quality (MDEQ), and the Michigan Department of Health and Human
2
Services (DHHS) (collectively, the state defendants).1 Plaintiffs also sued former city of
Flint emergency managers Darnell Earley and Jerry Ambrose (collectively, the city
defendants).2 The state defendants and the city defendants brought separate motions for
summary disposition under MCR 2.116(C)(4), (7), and (8). Defendants argued that
plaintiffs’ lawsuit should be dismissed because plaintiffs failed to provide timely notice
and did not sufficiently plead their claims. The Court of Claims granted partial summary
disposition to defendants on claims not relevant to the issues presented in this Court. The
Court of Claims denied defendants’ motions for summary disposition with respect to
1
The name of the MDEQ was changed to the Michigan Department of Environment, Great
Lakes, and Energy (EGLE) after the filing of this lawsuit. See Executive Order No. 2019-
06. For consistency’s sake, in this case we refer to the Department as the MDEQ. We note
that the Department of Human Services and the Department of Community Health were
combined to form DHHS during the pendency of this case. See Executive Order No. 2015-
04.
2
An emergency manager is an official appointed by the governor “to address a financial
emergency” within a local government. MCL 141.1549(1). Under our state’s law,
emergency managers effectively replace locally elected government officials and have
broad powers to address financial emergencies:
Upon appointment, an emergency manager shall act for and in the place and
stead of the governing body and the office of chief administrative officer of
the local government. The emergency manager shall have broad powers in
receivership to rectify the financial emergency and to assure the fiscal
accountability of the local government and the local government’s capacity
to provide or cause to be provided necessary governmental services essential
to the public health, safety, and welfare. Following appointment of an
emergency manager and during the pendency of receivership, the governing
body and the chief administrative officer of the local government shall not
exercise any of the powers of those offices except as may be specifically
authorized in writing by the emergency manager or as otherwise provided by
this act and are subject to any conditions required by the emergency manager.
[MCL 141.1549(2).]
3
plaintiffs’ claim for violation of their right to bodily integrity under the Due Process Clause
of the 1963 Michigan Constitution, art 1, § 17, and plaintiffs’ claim of inverse
condemnation. The state defendants appealed, and cross-appeals followed. The Court of
Appeals affirmed the Court of Claims. Both sets of defendants filed applications for leave
to appeal in this Court. We granted leave to appeal, and after hearing oral argument on
defendants’ applications, a majority of this Court expressly affirms the Court of Appeals’
conclusion regarding plaintiffs’ inverse-condemnation claim. The Court of Appeals
opinion is otherwise affirmed by equal division. See MCR 7.315(A).
I. FACTS
The trial court record is limited because defendants brought their motions for
summary disposition before discovery could be conducted. The facts of the case are
disputed. However, because this is an appeal from an opinion that mainly concerns
motions for summary disposition under MCR 2.116(C)(7) and (8), we accept the contents
of the complaint as true unless contradicted by documentation submitted by the movant3
and we construe the factual allegations in a light most favorable to plaintiffs.4 See Maiden
v Rozwood, 461 Mich. 109, 119-120; 597 NW2d 817 (1999). The Court of Claims
summarized plaintiffs’ pleadings as follows:
From 1964 through late April 2014, the Detroit Water and [Sewerage]
Department (“DWSD”) supplied Flint water users with their water, which
3
We conclude that defendants have not produced sufficient evidence at this stage of
litigation to contradict plaintiffs’ allegations.
4
Later in this opinion, we review defendants’ motions for summary disposition on
plaintiffs’ procedural compliance with statutory notice requirements under MCR
2.116(C)(4) and (7).
4
was drawn from Lake Huron. Flint joined Genesee, Sanilac, and Lapeer
Counties and the City of Lapeer, in 2009, to form the Karegondi Water
Authority (“KWA”) to explore the development of a water delivery system
that would draw water from Lake Huron and serve as an alternative to the
Detroit water delivery system. On March 28, 2013, the State Treasurer
recommended to [former Governor Snyder] that he authorize the KWA to
proceed with its plans to construct the alternative water supply system. The
State Treasurer made this decision even though an independent engineering
firm commissioned by the State Treasurer had concluded that it would be
more cost efficient if Flint continued to receive its water from the DWSD.
Thereafter, on April 16, 2013, the Governor authorized then-Flint
Emergency Manager Edward Kurtz to contract with the KWA for the
purpose of switching the source of Flint’s water from the DWSD to the KWA
beginning in mid-year 2016.
At the time Emergency Manager Kurtz contractually bound Flint to
the KWA project, the Governor and various state officials knew that the Flint
River would serve as an interim source of drinking water for the residents of
Flint. Indeed, the State Treasurer, the emergency manager and others
developed an interim plan to use Flint River water before the KWA project
became operational. They did so despite knowledge of a 2011 study
commissioned by Flint officials that cautioned against the use of Flint River
water as a source of drinking water and despite the absence of any
independent state scientific assessment of the suitability of using water
drawn from the Flint River as drinking water.
On April 25, 2014, under the direction of then Flint Emergency
Manager Earley and the [MDEQ,] Flint switched its water source from the
DWSD to the Flint River and Flint water users began receiving Flint River
water from their taps. This switch was made even though Michael Glasgow,
the City of Flint’s water treatment plant’s laboratory and water quality
supervisor, warned that Flint’s water treatment plant was not fit to begin
operations. The 2011 study commissioned by city officials had noted that
Flint’s long dormant water treatment plant would require facility upgrades
costing millions of dollars.
Less than a month later, state officials began to receive complaints
from Flint water users about the quality of the water coming out of their taps.
Flint residents began complaining in June of 2014 that they were becoming
ill after drinking the tap water. On October 13, 2014, General Motors
announced that it was discontinuing the use of Flint water in its Flint plant
due to concerns about the corrosive nature of the water. That same month,
Flint officials expressed concern about a Legionellosis outbreak and possible
5
links between the outbreak and Flint’s switch to the river water. On February
26, 2015, the United States Environmental Protection Agency (“EPA”)
advised the MDEQ that the Flint water supply was contaminated with iron at
levels so high that the testing instruments could not measure the exact level.
That same month, the MDEQ was also advised of the opinion of Miguel Del
Toral of the EPA that black sediment found in some of the tap water was
lead.
During this time, state officials failed to take any significant remedial
measures to address the growing public health threat posed by the
contaminated water. Instead, state officials continued to downplay the health
risk and advise Flint water users that it was safe to drink the tap water while
at the same time arranging for state employees in Flint to drink water from
water coolers installed in state buildings. Additionally, the MDEQ advised
the EPA that Flint was using a corrosion control additive with knowledge
that the statement was false.
By early March 2015, state officials knew they faced a public health
emergency involving lead poisoning and the presence of the deadly
Legionella bacteria, but actively concealed the health threats posed by the
tap water, took no measures to effectively address the dangers, and publicly
advised Flint water users that the water was safe and that there was no
widespread problem with lead leaching into the water supply despite
knowledge that these latter two statements were false.
Through the summer and into the fall of 2015, state officials continued
to cover up the health emergency, discredit reports from Del Toral of the
EPA and Professor Marc Edwards of Virginia Tech confirming serious lead
contamination in the Flint water system, conceal critical information
confirming the presence of lead in the water system, and advise the public
that the drinking water was safe despite knowledge to the contrary. In the
fall of 2015, various state officials attempted to discredit the findings of Dr.
Mona [Hanna]-Attisha of Hurley Hospital, which reflected a “spike in the
percentage of Flint children with elevated blood lead levels from blood
drawn in the second and third quarter of 2014.”
In early October of 2015, however, the Governor acknowledged that
the Flint water supply was contaminated with dangerous levels of lead. He
ordered Flint to reconnect to the Detroit water system on October 8, 2015,
with the reconnection taking place on October 16, 2015. This suit followed.
[Mays v Governor, unpublished opinion of the Court of Claims, issued
October 26, 2016 (Docket No. 16-000017-MM), pp 3-6 (citation omitted).]
6
Plaintiffs brought suit against defendants in the Court of Claims, alleging, in part, a
claim for inverse condemnation and seeking economic damages both for the physical harm
done to their property as well as the diminution of their property’s value. Plaintiffs alleged
that despite both sets of defendants knowing that the Flint River water was toxic and
corrosive, the state defendants authorized the city defendants to service their property with
the Flint River water. As a result, plaintiffs alleged that their pipes, service lines, and water
heaters were damaged. Plaintiffs also alleged that after the water crisis had become public
knowledge, their property’s value substantially declined.
Plaintiffs additionally brought a claim for violation of their right to bodily integrity
under the Michigan Constitution’s Due Process Clause, Const 1963, art 1, § 17. Plaintiffs
alleged that despite knowing the dangers associated with switching the city of Flint’s water
source to the Flint River, defendants made the switch with indifference to the known
serious medical risks and then misled and deceived the public while concealing information
about the toxicity and corrosiveness of the water. Plaintiffs alleged that they sustained
personal injury from using and ingesting the Flint water as a result of defendants’ actions.
Specifically, plaintiffs alleged that as a result of ingesting the tainted water, they have
suffered physical symptoms, such as neuropathy, sleepiness, gastrointestinal discomfort,
dermatological disorders, hair loss, and other symptoms, as well as substantial economic
losses from their medical expenses and lost wages. Plaintiffs also alleged that some Flint
citizens suffered life-threatening and irreversible bodily injuries.
The state defendants and the city defendants brought separate motions for summary
disposition under MCR 2.116(C)(4), (7), and (8). Both sets of defendants argued that
plaintiffs failed to satisfy the statutory notice requirements in MCL 600.6431 of the Court
7
of Claims Act (COCA), MCL 600.6401 et seq.; that plaintiffs failed to allege facts to
establish a constitutional claim under the Michigan Constitution’s Due Process Clause for
violation of their right to bodily integrity; that a judicially inferred damages remedy for
such a claim is inappropriate; and that plaintiffs otherwise failed to allege sufficient facts
to establish the legal elements of their claims.
In an opinion and order, the Court of Claims granted partial summary disposition to
defendants and in other respects denied defendants’ motions for summary disposition. The
Court of Claims determined that plaintiffs satisfied the statutory notice requirements and
adequately pleaded claims of inverse condemnation and a violation of their right to bodily
integrity. The state defendants appealed, and the city defendants and plaintiffs filed cross-
appeals.
In a published opinion, the Court of Appeals affirmed the Court of Claims’ rulings
on the statutory notice requirements, plaintiffs’ claim of violation of their right to bodily
integrity, and plaintiffs’ claims of inverse condemnation. Mays v Governor, 323 Mich. App.
1; 916 NW2d 227 (2018). Both the state defendants and the city defendants then filed
applications for leave to appeal in this Court. We granted leave to appeal and heard oral
argument on defendants’ applications. Mays v Governor, 503 Mich. 1030 (2019).
8
II. ANALYSIS
A. INVERSE CONDEMNATION5
1. STANDARD OF REVIEW
Defendants moved for summary disposition of plaintiffs’ inverse-condemnation
claim under MCR 2.116(C)(8). This Court reviews a motion for summary disposition
under MCR 2.116(C)(8) for the legal sufficiency of a claim. El-Khalil v Oakwood
Healthcare, Inc, 504 Mich. 152, 159; 934 NW2d 665 (2019). We accept all factual
allegations in the complaint as true, deciding the motion on the pleadings alone. Id. at 160.
“A motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly
unenforceable that no factual development could possibly justify recovery.” Id.
2. LEGAL BACKGROUND
The Fifth Amendment of the United States Constitution and Article 10, § 2 of
Michigan’s 1963 Constitution prohibit the taking of private property without just
compensation. US Const, Am V; Const 1963, art 10, § 2. A claim of inverse condemnation
is “a cause of action against a governmental defendant to recover the value of property
which has been taken . . . even though no formal exercise of the power of eminent domain
has been attempted by the taking agency.” Merkur Steel Supply, Inc v Detroit, 261 Mich
App 116, 129; 680 NW2d 485 (2004) (quotation marks and citation omitted). “Inverse
condemnation can occur without a physical taking of the property; a diminution in the value
of the property or a partial destruction can constitute a ‘taking.’ ” Id. at 125.
5
We address plaintiffs’ claim of inverse condemnation first because it is the sole claim in
which a majority exists to expressly affirm the Court of Appeals.
9
“[A] plaintiff alleging inverse condemnation must prove a causal connection
between the government’s action and the alleged damages.” Hinojosa v Dep’t of Natural
Resources, 263 Mich. App. 537, 548; 688 NW2d 550 (2004). Government actions directed
at a plaintiff’s property must have “the effect of limiting the use of the property.” Charles
Murphy, MD, PC v Detroit, 201 Mich. App. 54, 56; 506 NW2d 5 (1993). “[A]ll of the
[defendants’] actions in the aggregate, as opposed to just one incident, must be analyzed to
determine the extent of the taking.” Merkur Steel Supply, Inc, 261 Mich. App. at 125. A
plaintiff “must establish (1) that the government’s actions were a substantial cause of the
decline of the property’s value and (2) that the government abused its powers in affirmative
actions directly aimed at the property.” Blue Harvest, Inc v Dep’t of Transp, 288 Mich
App 267, 277; 792 NW2d 798 (2010). In Spiek v Dep’t of Transp, 456 Mich. 331, 348; 572
NW2d 201 (1998), this Court opined:
The right to just compensation, in the context of an inverse
condemnation suit for diminution in value . . . exists only where the
landowner can allege a unique or special injury, that is, an injury that is
different in kind, not simply in degree, from the harm suffered by all persons
similarly situated.
3. PLAINTIFFS ADEQUATELY ALLEGED A CLAIM OF INVERSE
CONDEMNATION
With respect to the first element of an inverse-condemnation claim, plaintiffs allege
that switching the water source from the DWSD to the Flint River resulted in physical
damage to pipes, service lines, and water heaters. Plaintiffs also allege that the
contaminated water limited the use of their property and substantially impaired its value
and marketability because after the water crisis became public knowledge, lenders were
hesitant to authorize loans for the purchase of realty within Flint and property values
10
“plummeted.” Taking these factual allegations as true, as we are required to do, we
conclude that plaintiffs sufficiently alleged that defendants’ actions were a substantial
cause of the decline of their property’s value. See MCR 2.116(C)(8); El-Khalil, 504 Mich.
at 160.
With respect to the second element of an inverse-condemnation claim, defendants
argue that plaintiffs have failed to allege that they abused their powers and took affirmative
actions directed at plaintiffs’ property. Again, we disagree. Plaintiffs allege that
defendants committed an affirmative act directed at their property when the state
defendants authorized the city defendants to use the Flint River as an interim water source
while both sets of defendants knew that using the river could result in harm to property.
Defendants then allegedly concealed or misrepresented data and made false statements
about the safety of the river water in an attempt to downplay the risk of its use and
consumption. The state defendants argue that if there were an affirmative act that was
directed at the plaintiffs’ property, it was the city defendants who effectuated the act, not
the state defendants. While discovery may bear evidence that supports this conclusion, at
this stage of proceedings, we must accept all of plaintiffs’ allegations as true. See MCR
2.116(C)(8); El-Khalil, 504 Mich. at 160. If true, plaintiffs’ allegations are sufficient to
conclude that the state defendants abused their powers and took affirmative actions directly
aimed at plaintiffs’ property.
Finally, defendants argue that plaintiffs have not alleged a unique or special injury
different in kind from the harm suffered by those similarly situated. In their analysis,
defendants attempt to define those similarly situated to plaintiffs as other Flint water users.
Defendants then contend that plaintiffs’ injury is no different in kind from the harm
11
suffered by those individuals and, thus, plaintiffs’ inverse-condemnation claim fails. The
Court of Appeals rejected defendants’ arguments, determining that plaintiffs are similarly
situated to municipal water users generally and that they suffered a unique or special injury
when compared to those similarly situated. We agree that defendants’ analysis is flawed.
Fundamentally, we disagree with defendants as to how to define those who are
similarly situated to plaintiffs. In Richards v Washington Terminal Co, 233 U.S. 546, 554;
34 S. Ct. 654; 58 L. Ed. 1088 (1914), the United States Supreme Court held that residents
whose homes were located near a railroad tunnel could not state a claim of inverse
condemnation for cracks in their homes caused by vibrations from adjacent trains, because
anyone living near a railroad risked similar harm. However, the Court concluded that the
plaintiffs could state a claim of inverse condemnation for damage caused by a fanning
system within the tunnel that blew pollutants into their homes, because that harm was
unique to the plaintiffs given how the plaintiffs’ property was particularly situated in
relation to the rail tunnel. Id. at 556. In other words, when compared with anyone living
near train tracks, the harms allegedly caused by the train tunnel’s fanning system were
unique to the plaintiffs. Id.
Similarly, in Thom v State Highway Comm’r, 376 Mich. 608, 628; 138 NW2d 322
(1965), this Court concluded that compensation must be awarded to a farmer whose
property was “destroy[ed] or . . . interfere[d] [with] seriously” by a change in the grade of
an improved road passing by his land. In reaching this conclusion, the Court determined
that the farmer’s injury was different from the injuries of other property owners whose
property was adjacent to improved roads that were constructed in a customary fashion. Id.
at 622-623, 628. See also Hill v State Hwy Comm, 382 Mich. 398, 404; 170 NW2d 18
12
(1969) (holding that property owners whose right of ingress and egress of their
neighborhood was closed in two directions because of highway construction could not
bring a claim of inverse condemnation because they could not show that their injuries were
different from “members of the traveling public or property owners whose use of these
streets ha[d] been restricted by the construction of the . . . expressway”); Spiek, 456 Mich.
at 332-333 (holding that owners of residential property who sought compensation for
damages to their property from the noise, dust, vibrations, and fumes produced by vehicles
traveling on adjacent roadways could not bring a claim for inverse condemnation because
the harm to their property was no different than the harm “incurred by all property owners
who reside adjacent to freeways or other busy highways”).
When taken together, in determining whether the plaintiffs suffered a unique or
special injury, the United States Supreme Court and this Court have compared the plaintiffs
to a generalized group of individuals who experience a similar but not identical harm. In
parsing this inquiry, the United States Supreme Court and this Court have analyzed whether
the harm the plaintiff suffers is part of the “common burden” shared among all, which, if
not imposed, would halt a socially necessary activity, or whether the harm “naturally and
unavoidably result[s]” in a taking unique to that plaintiff. Richards, 233 U.S. at 554.
In Richards, the United States Supreme Court explained that railroads are a public
necessity, much like highways, so proprietors are immune to suit for “incidental damages
accruing to owners of nonadjacent land through the proper and skillful management and
operation of the railways.” Id. When diminution of value to private property is not
“peculiar[]” but is merely “sharing in the common burden of incidental damages arising
from the legalized nuisance,” there is no “taking” in the constitutional sense. Id. Damages
13
that are part of the “common burden” are “such damages as naturally and unavoidably
result from the proper conduct of the road and are shared generally by property owners
whose lands lie within range of the inconveniences necessarily incident to proximity to a
railroad.” Id. Absent such a distinction, the “practical result would be to bring the
operation of railroads to a standstill.” Id. at 555. The doctrine, “being founded upon
necessity, is limited accordingly.” Id.
In Richards, the United States Supreme Court compared the plaintiffs to all property
owners who lived next to the railway, not those whose property was also in close proximity
to the rail tunnel’s fan system. Id. at 556. Although members of the public share a
“common burden” for the benefit of railroads that includes noise and vibration, the direct
fanning of train pollution into a home was deemed to be a unique and uncommon burden
that rendered the harm a compensable taking. Id. at 554, 556.
This Court has ruled similarly. In Thom and Hill, this Court reasoned that no taking
occurs when a property owner’s use of streets is limited in the same way as the rest of the
traveling public but that a taking does occur when a property owner’s individual access to
an abutting highway is completely foreclosed. Thom, 376 Mich. at 622-623, 628; Hill, 382
Mich. at 403-404. The former is a common burden, while the latter is not. In Spiek, this
Court compared the plaintiffs to others whose property abutted highways, not to property
owners who lived adjacent to the exact expressway at issue in that case. Spiek, 456 Mich.
at 332-333. The plaintiffs’ allegations involving noise, dust, vibrations, and fumes were
common burdens shared by all members of the public in return for receiving the social
benefit of public roadways. Rather than comparing plaintiffs to other Flint water users, we
agree with the Court of Appeals that plaintiffs are similarly situated to municipal water
14
users generally. We therefore compare plaintiffs to a generalized group of similar
individuals—other municipal water users—and consider what “common burden” the
public bears from the provision of water.6
We recognize that users of public water systems may routinely experience gaps in
service and externalities associated with system construction and maintenance. These
types of frustrations are common burdens shared by members of society for the provision
of water. However, in their amended complaint, plaintiffs allege that the state defendants
authorized the city defendants to use the Flint River as an interim water source despite both
sets of defendants knowing the potential harm of doing so. Plaintiffs contend that after the
switch to the Flint River was effectuated, water contaminated with Legionella bacteria and
toxic levels of iron and lead flowed through their pipes, service lines, and water heaters,
which damaged the infrastructure and diminished their property’s value. These alleged
injuries are clearly different in kind, not just degree, from harms that municipal water users
experience generally, e.g., service disruptions and externalities associated with
construction. Moreover, plaintiffs’ allegations do not “naturally and unavoidably result”
from the provision of public water. Richards, 233 U.S. at 554.
In sum, we conclude that plaintiffs have sufficiently alleged a claim of inverse
condemnation to survive a motion for summary disposition brought under MCR
2.116(C)(8). Viewed in the light most favorable to plaintiffs and accepting their factual
allegations as true, we hold that the pleadings establish that defendants’ actions were a
6
In the context of this unique case, the analysis is somewhat ill-fitting because we do not
normally consider delivery of water to the public as a “legalized nuisance.” See Richards,
233 U.S. at 554.
15
substantial cause of the decline in plaintiffs’ property value, that defendants took
affirmative actions directed at plaintiffs’ property, and that plaintiffs suffered a unique or
special injury different in kind, not simply in degree, from the harm suffered by all persons
similarly situated.
B. STATUTORY NOTICE REQUIREMENTS
The Court of Appeals also concluded that a genuine issue of material fact existed
regarding whether plaintiffs satisfied the statutory notice requirements of MCL 600.6431.7
We agree. On this issue, the Court of Appeals is affirmed by equal division.
1. STANDARD OF REVIEW
Defendants argue that the Court of Claims erred when it denied their motions for
summary disposition under MCR 2.116(C)(4) and (7) because plaintiffs failed to satisfy
the statutory notice requirements of MCL 600.6431. We disagree.
A motion for summary disposition under MCR 2.116(C)(4) tests the trial court’s
subject-matter jurisdiction. We review a trial court’s decision on a motion for summary
disposition under MCR 2.116(C)(4) de novo. Travelers Ins Co v Detroit Edison Co, 465
Mich. 185, 205; 631 NW2d 733 (2001). “[W]hether MCL 600.6431 requires dismissal of
a plaintiff’s claim for failure to provide the designated notice raises questions of statutory
interpretation,” which we also review de novo. McCahan v Brennan, 492 Mich. 730, 736;
822 NW2d 747 (2012).
7
This provision was amended after plaintiffs filed their suit. See 2020 PA 42 (effective
March 3, 2020). We analyze the version of the statute in effect when plaintiffs filed their
lawsuit in 2016.
16
A motion for summary disposition brought under MCR 2.116(C)(7) may be granted
when a claim is barred by immunity. Maiden, 461 Mich. at 118. “When reviewing a motion
under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true
and construe them in favor of the plaintiff, unless other evidence contradicts them.”
Dextrom v Wexford Co, 287 Mich. App. 406, 428; 729 NW2d 211 (2010).
2. LEGAL BACKGROUND
State and municipal agencies performing governmental functions are generally
immune from tort liability. McCahan, 492 Mich. at 736. However, the government may
voluntarily subject itself to liability, which also means that it may place conditions or
limitations on the liability imposed. Id. For example, the Legislature may impose
procedural requirements on a plaintiff’s available remedies, such as a statutory limitations
period or notice obligation. Rusha v Dep’t of Corrections, 307 Mich. App. 300, 307; 859
NW2d 735 (2014).
One condition on the right to sue state governmental agencies is the notice provision
of the COCA. The pertinent provisions of the COCA, MCL 600.6431(1) and (3), provide:
(1) No claim may be maintained against the state unless the claimant,
within 1 year after such claim has accrued, files in the office of the clerk of
the court of claims either a written claim or a written notice of intention to
file a claim against the state or any of its departments, commissions, boards,
institutions, arms or agencies, stating the time when and the place where such
claim arose and in detail the nature of the same and of the items of damage
alleged or claimed to have been sustained, which claim or notice shall be
signed and verified by the claimant before an officer authorized to administer
oaths.
* * *
(3) In all actions for property damage or personal injuries, claimant
shall file with the clerk of the court of claims a notice of intention to file a
17
claim or the claim itself within 6 months following the happening of the event
giving rise to the cause of action. [Emphasis added.]
For purposes of statutory limitations periods, our Legislature has stated that a claim
accrues “at the time the wrong upon which the claim is based was done,” MCL 600.5827,
and this Court has clarified that “the wrong . . . is the date on which the defendant’s breach
harmed the plaintiff, as opposed to the date on which defendant breached his duty,” Frank
v Linkner, 500 Mich. 133, 147; 894 NW2d 574 (2017) (quotation marks and citation
omitted). A claim does not accrue until each element of the cause of action, including some
form of damages, exists. See Henry v Dow Chem Co, 319 Mich. App. 704, 720; 905 NW2d
422 (2017), rev’d in part on other grounds 501 Mich. 965 (2018). Thus, determining the
time when plaintiffs’ claims accrued requires us to determine when plaintiffs were first
harmed. See id.
3. QUESTIONS OF FACT REMAIN AS TO WHEN PLAINTIFFS SUSTAINED
THEIR INJURIES
As noted by the Court of Appeals, plaintiffs filed their complaint on January 21,
2016, without having filed a separate notice of intention to file a claim. In their complaint,
plaintiffs assert that their constitutional-tort claim accrued on October 16, 2015,8 when
defendants reconnected the Flint water system to the water supplied by DWSD.
Defendants argue that plaintiffs’ claims accrued, and the statutory notice period thus began
to run, in either June 2013, when plaintiffs allege that the state authorized the use of the
8
While plaintiffs’ amended complaint states that their claim “accrued on October 16, 2016,
when Defendants re-connected the Flint water system to water supplied by the [DWSD],”
elsewhere in their complaint plaintiffs acknowledge that defendants actually reconnected
Flint to the DWSD on October 16, 2015. (Emphasis added.) In reviewing the complaint
as a whole, we conclude that plaintiffs’ mention of that event occurring in 2016 was made
in error.
18
Flint River water, or on April 25, 2014, when Flint’s water source was actually switched
to the Flint River. On this basis, defendants suggest that regardless of which date is chosen,
plaintiffs’ complaint was not filed within the six-month statutory notice period required by
MCL 600.6431(3). We disagree.
In Henry v Dow Chem Co, this Court held that the relevant statutory limitations
period began running “from ‘the time the claim accrues,’ ” which is when “ ‘the wrong
upon which the claim is based was done regardless of the time when damage results.’ ”
Henry v Dow Chem Co, 501 Mich. 965, 965 (2018), quoting MCL 600.5827 and citing
Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich. 378, 387; 738 NW2d 664
(2007). This Court concluded that because the claimed harm was the presence of dioxin
in the soil of the plaintiffs’ properties, the accrual date was tied to the occurrence of this
wrong. Henry, 501 Mich. at 965.
Justice MARKMAN’s dissent argues that our holding in Henry means that the accrual
date here should be April 25, 2014, when plaintiffs were first exposed to water from the
Flint River. However, we note that Henry was decided by order and contained no in-depth
analysis; instead, the order relied heavily on language from Trentadue. Henry cites
Trentadue for the proposition that “[t]he wrong is done when the plaintiff is harmed,”
Henry, 501 Mich. at 965, citing Trentadue, 479 Mich. at 388, and Trentadue itself further
explains that “ ‘[t]he wrong is done when the plaintiff is harmed rather than when the
defendant acted,’ ” Trentadue, 479 Mich. at 388, quoting Boyle v Gen Motors Corp, 468
Mich. 226, 231 n 5; 661 NW2d 557 (2003) (emphasis added).
To the extent that Henry can be read to support the proposition that the accrual date
began at the point when dioxin reached the plaintiffs’ properties, the order in Henry noted
19
that “the claimed harm to the plaintiffs in this case is the presence of dioxin in the soil of
their properties.” Henry, 501 Mich. at 965. In the instant case, plaintiffs do not allege that
their claimed harms resulted at the time Flint’s water source was switched. As explained
by the Court of Appeals, plaintiffs allege various affirmative actions taken by defendants
that resulted in distinct harms to plaintiffs. The economic damage plaintiffs allege from
the diminution of their properties’ value could not have occurred on the date the water
source was switched. Plaintiffs’ property diminished in value at a later date, yet to be
determined, when a buyer or bank had the requisite information to be disinclined to buy or
finance the purchase of property in Flint. At this stage of litigation, it is not yet clear when
plaintiffs suffered actionable personal injury as a result of their use and consumption of the
contaminated water; in other words, it remains uncertain whether the personal injuries
alleged would have occurred after just one sip of Flint River water. Plaintiffs have also
alleged injuries that might include plaintiffs who suffered in vitro exposure to toxic water.9
It would simply be illogical to foreclose a plaintiff’s suit if the plaintiff had been exposed
to the Flint water in the womb and thus suffered harm but had not yet been born as of April
2014. Therefore, questions of fact remain as to when plaintiffs suffered injury to person
9
Justice MARKMAN asserts that plaintiffs do not allege injuries from in vitro exposure to
Flint water. We disagree. While plaintiffs do not mention in vitro exposure explicitly,
they make allegations regarding personal injury from exposure to and ingestion of Flint
water on behalf of themselves and other Flint water users. In our view, it is reasonable to
assume that plaintiffs exist in this putative class who were exposed to Flint water in the
womb, suffered injury, and were born after April 2014.
20
and property and as to when each plaintiff’s claims accrued relative to the filing of the
complaint.10 At this juncture, summary disposition is therefore premature.
Because we agree that whether plaintiffs’ complaint was timely filed and when their
specific claims accrued are questions to be resolved in further proceedings, we conclude
10
Plaintiffs’ amended complaint alleges numerous harms resulting from separate tortious
acts. These allegations are different from a continuing harm resulting from a single tortious
act. For purposes of determining the accrual date of plaintiffs’ claims, each of plaintiffs’
individual causes of action must be considered separately. See Joliet v Pitoniak, 475 Mich.
30, 42; 715 NW2d 60 (2006).
Moreover, we disagree with Justice MARKMAN’s characterization of Hart v Detroit,
416 Mich. 488; 331 NW2d 438 (1982), as no longer good law. Justice MARKMAN notes
that plaintiffs rely on Hart to argue that their inverse-condemnation claim was timely filed.
In Hart, this Court recognized that with regard to an inverse-condemnation claim in which
plaintiffs allege that their property was taken via a continuous wrong, the statute of
limitations does not begin to run “until the consequences of the condemnor’s actions have
stabilized.” Id. at 504. Justice MARKMAN argues that “Hart is no longer good law because
this Court in Garg v Macomb Co Community Mental Health Servs, 472 Mich. 263; 696
NW2d 646 (2005) [(analyzing a discrimination claim)], later abolished the ‘continuing
violations’ doctrine because it was inconsistent with the language of the statute of
limitations.” In our view, Justice MARKMAN misapplies the continuing-violations doctrine
to plaintiffs’ claim of inverse condemnation. The continuing-violations doctrine is often
applied by the federal courts in the context of Title VII, civil-rights actions, and other
discrimination claims. See, e.g., Hunt v Bennett, 17 F3d 1263, 1266 (CA 10, 1994);
Lockridge v Univ of Maine Sys, 597 F3d 464, 474 (CA 1, 2010); Kovacevich v Kent State
Univ, 224 F3d 806, 829 (CA 6, 2000). In contrast, the stabilization doctrine was developed
in the context of inverse-condemnation claims. See, e.g., United States v Dickinson, 331
U.S. 745, 749; 67 S. Ct. 1382; 91 L. Ed. 1789 (1947); Hart, 416 Mich. at 504; Etchegoinberry
v United States, 114 Fed Cl 437, 475 (2013); Banks v United States, 741 F3d 1268, 1281
(CA Fed, 2014). We have found no instance in which our Court has applied the continuing-
violations doctrine to a claim of inverse condemnation. We also note that this Court’s
decision in Garg never mentioned Hart, nor did it abolish the stabilization doctrine. We
believe that Hart remains good law because this Court has never overruled it.
21
that it is unnecessary to address whether any exceptions to the MCL 600.6431(3) notice
requirement apply.11
C. INJURY TO BODILY INTEGRITY
Defendants argue that the Court of Appeals erred by determining that plaintiffs
sufficiently pleaded a claim for violation of their substantive due-process right to bodily
integrity under Const 1963, art 1, § 17. Defendants also argue that the Court of Appeals
erred by recognizing the availability of a damages remedy for plaintiffs’ claim. We again
disagree. Instead, we believe that the Court of Appeals properly held that plaintiffs pleaded
a cognizable claim for violation of their right to bodily integrity under the Due Process
Clause of Michigan’s Constitution. Given that this case is still in the very early stages of
the proceedings, we decline to hold at this point that monetary damages are unavailable for
this claim. On this issue, the Court of Appeals is again affirmed by equal division.
1. STANDARD OF REVIEW
Defendants moved for summary disposition of plaintiffs’ violation-of-bodily-
integrity claim under MCR 2.116(C)(7) and (8). Summary disposition is appropriate under
MCR 2.116(C)(7) when a claim is barred by immunity. Maiden, 461 Mich. at 118. When
reviewing a motion under MCR 2.116(C)(7), we must accept all well-pleaded factual
allegations as true and construe them in favor of plaintiffs, unless other evidence
11
Plaintiffs argue that the harsh-and-unreasonable-consequences doctrine and the
fraudulent-concealment doctrine also support their claims that satisfactory notice was filed.
Because we believe that there still remain questions of fact about when plaintiffs’ harms
accrued, we see no need to look to these doctrines at this point in the proceedings. Once
discovery is completed, the applicability of these doctrines may be reconsidered as
necessary.
22
contradicts them. Dextrom, 287 Mich. App. at 428. We review a motion for summary
disposition under MCR 2.116(C)(8) for the legal sufficiency of a claim, accepting all
factual allegations in the complaint as true and deciding the motion on the pleadings alone.
El-Khalil, 504 Mich. at 159-160.
2. LEGAL BACKGROUND
The Legislature has never created an exception to immunity for a constitutional tort.
Nonetheless, this Court has recognized that when a plaintiff brings a “constitutional tort”
against the state, in certain instances, the government is not immune from liability for
violations of its Constitution. Smith v Dep’t of Pub Health, 428 Mich. 540, 544; 410 NW2d
749 (1987), aff’d sub nom Will v Mich Dep’t of State Police, 491 U.S. 58 (1989). Plaintiffs
contend that their claims arise under these circumstances.
Smith was a divided memorandum opinion, but two of the pertinent tenets that a
majority of four were able to agree on were the following:
5) Where it is alleged that the state, by virtue of custom or policy, has
violated a right conferred by the Michigan Constitution, governmental
immunity is not available in a state court action.
6) A claim for damages against the state arising from violation by the
state of the Michigan Constitution may be recognized in appropriate cases.
[Smith, 428 Mich. at 544.]
The Smith opinion was silent as to why a majority of the Court had agreed on these tenets.
A later Court of Appeals panel noted that this lack of analysis was due to the justices’
differing views, given that “the Court was only able to agree on the bare proposition that
‘[a] claim for damages against the state arising from violation by the state of the Michigan
23
Constitution may be recognized in appropriate cases.’ ” 77th Dist Judge v Michigan, 175
Mich. App. 681, 693; 438 NW2d 333 (1989) (citation omitted).
After Smith, courts have cited Justice BOYLE’s separate opinion in Smith to explain
the reasoning behind the majority’s holding that constitutional torts may be recognized in
certain circumstances. See, e.g., Jones v Powell, 462 Mich. 329, 336-337; 612 NW2d 423
(2000); Reid, 239 Mich. App. at 628. While Justice BOYLE’s reasoning is not binding, it is,
in our view, persuasive. Justice BOYLE postulated that because the state’s Constitution is
preeminent, immunity does not bar recovery for violations of the state Constitution
perpetrated by custom or policy. Smith, 428 Mich. at 641 (BOYLE, J., concurring in part
and dissenting in part). Justice BOYLE wrote:
Assuming the plaintiff proves an unconstitutional act by the state
which is otherwise appropriate for a damage remedy, the question which
confronts this Court is whether sovereign or governmental immunity shields
the state from liability for damages for its alleged acts which violate our state
constitution. We would hold that neither common-law sovereign immunity
nor the governmental immunity found in MCL 691.1407; MSA 3.996(107)
bars recovery.
In our constitutional form of government, the sovereign power is in
the people, and “[a] Constitution is made for the people and by the people.”
Michigan Farm Bureau v Secretary of State, 379 Mich. 387, 391; 151 NW2d
797 (1967) (quoting Cooley, Constitutional Limitations [6th ed], p 81). The
Michigan Constitution is a limitation on the plenary power of government,
and its provisions are paramount. See, generally, Dearborn Twp v Dearborn
Twp Clerk, 334 Mich. 673, 688; 55 NW2d 201 (1952). It is so basic as to
require no citation that the constitution is the fundamental law to which all
other laws must conform. . . .
In light of the preeminence of the constitution, statutes which conflict
with it must fall. . . .
MCL 691.1407; MSA 3.996(107) does not, by its terms, declare
immunity for unconstitutional acts by the state. The idea that our Legislature
would indirectly seek to “approve” acts by the state which violate the state
24
constitution by cloaking such behavior with statutory immunity is too far-
fetched to infer from the language of MCL 691.1407; MSA 3.996(107). We
would not ascribe such a result to our Legislature.
Neither does common-law sovereign immunity immunize the state
from liability for its alleged unconstitutional acts. This Court abrogated
common-law sovereign immunity in Pittman v City of Taylor, 398 Mich. 41;
247 NW2d 512 (1976). Even absent such general abrogation, however, we
would decline to apply sovereign immunity to violations by the state of our
state constitution. The curious doctrine of sovereign immunity in America,
subject to great criticism over the years, see, generally, Jaffe, Suits against
governments and officers: Sovereign immunity, 77 Harv L R 1 (1963),
should, as a matter of public policy, lose its vitality when faced with
unconstitutional acts of the state. The primacy of the state constitution would
perforce eclipse the vitality of a claim of common-law sovereign immunity
in a state court action for damages.
. . . For “constitutional torts,” liability should only be imposed on the
state in cases where a state “custom or policy” mandated the official or the
employee’s actions. . . .
The state’s liability should be limited to those cases in which the
state’s liability would, but for the Eleventh Amendment, render it liable
under the 42 USC 1983 standard for local governments articulated in Monell
v New York City Dep’t of Social Services, 436 U.S. 658; 98 S. Ct. 2018; 56 L
Ed 2d 611 (1978).[12] Liability should be imposed on the state only where
the action of a state agent “implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers . . . [or] governmental ‘custom’ even though such a custom
has not received formal approval through the body’s official decisionmaking
channels.” Id., pp 690-691. [Smith, 428 Mich at 640-643 (BOYLE, J.,
concurring in part and dissenting in part).]
3. HISTORICAL RECOGNITION OF CONSTITUTIONAL TORTS
Defendants contend that historically, courts have not recognized actions against the
state when no waiver of immunity has occurred. Although defendants’ general assertion
12
The Eleventh Amendment provides that “[t]he 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 the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” US Const, Am XI.
25
might be true, our precedent with regard to constitutional torts is more nuanced. Michigan
courts have indeed recognized the existence of constitutional torts as outlined in Smith and,
in certain circumstances, have allowed constitutional-tort claims to survive motions for
summary disposition.
The Court of Appeals has repeatedly relied on Smith to recognize that immunity is
not available in a state-court action in which it is alleged that the state has violated a right
conferred by the Michigan Constitution. See Burdette v Michigan, 166 Mich. App. 406,
408-409; 421 NW2d 185 (1988) (recognizing that constitutional torts are viable but holding
that the plaintiff had not brought a viable constitutional-tort claim against the state); Marlin
v Detroit, 177 Mich. App. 108, 114; 441 NW2d 45 (1989) (remanding the case to the trial
court “for a determination of whether plaintiff has pled a violation of the Michigan
Constitution by virtue of governmental custom or policy”), lv den 448 Mich. 900 (1995);
Pawlak v Redox Corp, 182 Mich. App. 758, 764; 453 NW2d 304 (1990) (recognizing
constitutional claims against the state described in Smith as law); Johnson v Wayne Co,
213 Mich. App. 143, 150; 540 NW2d 66 (1995) (recognizing that Smith stood for the
proposition that a claim for damages against the state for a violation of the Michigan
Constitution may be recognized in appropriate cases but holding that the plaintiff did not
adequately allege which constitutional provision the government had violated), lv den 554
NW2d 903 (1996); Carlton v Dep’t of Corrections, 215 Mich. App. 490, 504, 510; 546
NW2d 671 (1996) (recognizing claims against the state for violations of the Michigan
Constitution but concluding that the plaintiff’s claim failed), lv den 453 Mich. 969 (1996);
Reid, 239 Mich. App. at 628 (recognizing the viability of constitutional-tort claims under
Smith); Co Rd Ass’n of Mich v Governor, 287 Mich. App. 95, 121; 782 NW2d 784 (2010)
26
(noting instances in which constitutional-tort theories were applied), lv den 488 Mich. 877
(2010), recon den 488 Mich. 1019 (2010); LM v Michigan, 307 Mich. App. 685, 694-695;
862 NW2d 246 (2014) (recognizing that constitutional torts exist but declining to apply the
doctrine); Rusha, 307 Mich. App. at 305 (recognizing that this Court has held that a claim
against the state for violations of the Michigan Constitution exists under certain
circumstances).
In Jones, 462 Mich. at 336-337, this Court declined to apply a constitutional-tort
theory to claims made against a municipality but nevertheless recognized that the theory
provided a remedy, albeit a “narrow remedy” against the state. In Lewis v Michigan, 464
Mich. 781, 786; 629 NW2d 868 (2001), this Court again recognized the Smith majority’s
holding as to the viability of certain constitutional-tort claims.
4. PLAINTIFFS SUFFICIENTLY ALLEGE A CONSTITUTIONAL TORT FOR
VIOLATION OF THEIR BODILY INTEGRITY
We also recognize that when a plaintiff alleges a constitutional tort like the one
alleged in this case, recovery is available for constitutional violations pursuant to a state
custom or policy and may survive the state’s claims of immunity. Smith, 428 Mich. at 544.
The Court of Appeals provided an extensive history of the development of the right
to bodily integrity:
Violation of the right to bodily integrity involves “an egregious,
nonconsensual entry into the body which was an exercise of power without
any legitimate governmental objective.” Rogers v Little Rock, Arkansas, 152
F3d 790, 797 (CA 8, 1998), citing Sacramento Co v Lewis, 523 U.S. 833, 847
n 8; 118 S. Ct. 1708; 140 L. Ed. 2d 1043 (1998). . . . [T]o survive dismissal,
the alleged “violation of the right to bodily integrity must be so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.”
Villanueva v City of Scottsbluff, 779 F3d 507, 513 (CA 8, 2015) (quotation
marks and citation omitted); see also Mettler Walloon, LLC v Melrose Twp,
27
281 Mich. App. 184, 198; 761 NW2d 293 (2008) (explaining that in the
context of individual governmental actions or actors, to establish a
substantive due-process violation, “the governmental conduct must be so
arbitrary and capricious as to shock the conscience”).
“Conduct that is merely negligent does not shock the conscience, but
‘conduct intended to injure in some way unjustifiable by any government
interest is the sort of official action most likely to rise to the conscience-
shocking level.’ ” Votta v Castellani, 600 F Appx 16, 18 (CA 2, 2015),
quoting Sacramento Co, 523 U.S. at 849. At a minimum, proof of deliberate
indifference is required. McClendon v City of Columbia, 305 F3d 314, 326
(CA 5, 2002). A state actor’s failure to alleviate “a significant risk that he
should have perceived but did not” does not rise to the level of deliberate
indifference. Farmer v Brennan, 511 U.S. 825, 838; 114 S. Ct. 1970; 128 L. Ed.
2d 811 (1994). To act with deliberate indifference, a state actor must
“ ‘know[] of and disregard[] an excessive risk to [the complainant’s] health
or safety.’ ” Ewolski v City of Brunswick, 287 F3d 492, 513 (CA 6, 2002),
quoting Farmer, 511 U.S. at 837. “The case law . . . recognizes official
conduct may be more egregious in circumstances allowing for
deliberation . . . than in circumstances calling for quick decisions . . . .”
Williams v Berney, 519 F3d 1216, 1220-1221 (CA 10, 2008). [Mays, 323
Mich. App. at 60-61.]
With this framing of the elements of plaintiffs’ claim in mind, we affirm the Court of
Appeals and conclude that plaintiffs have alleged facts that, if proved, support a claim for
a constitutional violation by defendants.
Plaintiffs allege that defendants’ decision to switch the city of Flint’s water source
to the Flint River, which defendants knew was contaminated, resulted in a nonconsensual
entry of toxic water into plaintiffs’ bodies. Plaintiffs contend that defendants neglected to
upgrade Flint’s water-treatment system before switching to the Flint River despite knowing
and being warned that the system was inadequate. After receiving information that
suggested the Flint River was contaminated with bacteria, toxic levels of lead, and other
contaminants, defendants allegedly concealed scientific data and made misleading
statements about the safety of the Flint River water.
28
There is obviously no legitimate governmental objective in poisoning citizens.
Plaintiffs’ allegations, if true, are so egregious and outrageous that they shock the
contemporary conscience and support a finding of defendants’ deliberate indifference to
plaintiffs’ health and safety. See Villanueva, 779 F3d at 513; Mettler Walloon, LLC, 281
Mich. App. at 198; McClendon, 305 F3d at 326. Plaintiffs’ allegations make out more than
a negligent decision to switch water sources. They allege that “Defendants had time for
deliberation in their decisions to expose Flint residents to toxic water, and their decision to
do so was made with deliberate indifference to the known serious medical risks.” Their
allegations paint a picture of a public health crisis of the government’s own making,
intentionally concealed by state actors despite their knowledge that Flint residents were
being harmed so long as the untreated water continued to flow through their pipes. We
find it difficult to characterize the actions that defendants allegedly took as anything short
of shocking to the conscience. “When such extended opportunities to do better are teamed
with protracted failure even to care, indifference is truly shocking.” Sacramento Co v
Lewis, 523 U.S. 833, 853; 118 S. Ct. 1708; 140 L. Ed. 2d 1043 (1998).
Plaintiffs have also alleged that a state “custom or policy” mandated the actions that
led to the violation of their substantive due-process right to bodily integrity. Smith, 428
Mich. at 544. The state and its officials will only be held liable for violation of the state
Constitution “ ‘in cases where a state “custom or policy” mandated the official or
employee’s actions.’ ” Carlton, 215 Mich. App. at 505, quoting Smith, 428 Mich. at 642
(BOYLE, J., concurring in part and dissenting in part). As the Court of Appeals noted:
Official governmental policy includes “the decisions of a government’s
lawmakers” and “the acts of its policymaking officials.” Johnson v
VanderKooi, 319 Mich. App. 589, 622; 903 NW2d 843 (2017) (quotation
29
marks and citation omitted). See also Monell, 436 U.S. at 694 (stating that a
governmental agency’s custom or policy may be “made by its lawmakers or
by those whose edicts or acts may fairly be said to represent official policy”).
A “single decision” by a policymaker or governing body “unquestionably
constitutes an act of official government policy,” regardless of whether “that
body had taken similar action in the past or intended to do so in the future[.]”
Pembaur v Cincinnati, 475 U.S. 469, 480; 106 S. Ct. 1292; 89 L. Ed. 2d 452
(1986). . . . The [United States Supreme] Court clarified that not all
decisions subject governmental officers to liability. Id. at 481. Rather, it is
“where—and only where—a deliberate choice to follow a course of action is
made from among various alternatives by the official or officials responsible
for establishing final policy with respect to the subject matter in question.”
Id. at 483. [Mays, 323 Mich. App. at 63-64.]
Plaintiffs allege that the city of Flint’s choice to provide Flint residents with the
Flint River water was approved and implemented by the state defendants, arguing that both
sets of defendants were decision-makers in the adoption of a plan that, once effectuated,
resulted in violations of their substantive due-process rights. Defendants then purportedly
made decisions to conceal the consequences of the water-source switch and misled the
public about the safety of the Flint River water. Plaintiffs allege that defendants’
aforementioned actions exposed them to unnecessary harm for months after the switch was
made. Plaintiffs’ allegations, if proved, support a conclusion that defendants considered
an array of options and made a deliberate choice to effectuate the Flint River switch despite
knowing the potential harms of doing so.
Having reviewed plaintiffs’ allegations in their totality, we conclude that plaintiffs
pleaded a recognizable due-process claim under Michigan’s Constitution for a violation of
their right to bodily integrity.
30
5. DAMAGES REMEDY
Because we have determined that plaintiffs’ allegations, if proved, are sufficient to
sustain a constitutional tort against defendants, we must next determine whether it is
appropriate to recognize a damages remedy for the constitutional violation. Not every
constitutional violation merits damages. However, at this point in the litigation, we are not
prepared to foreclose the possibility of monetary damages.13
This Court has never explicitly endorsed a test for assessing a damages inquiry for
a constitutional violation. However, we agree with the Court of Claims and the Court of
Appeals that the multifactor test elaborated in Justice BOYLE’s separate opinion in Smith
provides a framework for assessing the damages inquiry. Under that test, we weigh various
factors, including (1) the existence and clarity of the constitutional violation itself; (2) the
degree of specificity of the constitutional protection; (3) support for the propriety of a
judicially inferred damages remedy in any text, history, and previous interpretations of the
specific provision; (4) the availability of another remedy; and (5) various other factors
militating for or against a judicially inferred damages remedy. See Smith, 428 Mich. at
648-652 (BOYLE, J., concurring in part and dissenting in part). At this stage of the
proceedings, we accept plaintiffs’ allegations as true and review them in a light most
favorable to plaintiffs.
13
We conclude that Justice VIVIANO’s arguments to the contrary are premature. Plaintiffs
should be permitted to develop their factual allegations through discovery before it is
determined whether monetary damages are available.
31
As to the first factor, we have already determined that plaintiffs set forth allegations
to establish a clear violation of the Michigan Constitution. We therefore conclude that the
first factor weighs in favor of a judicially inferred damages remedy.
As to the second and third factors, in Smith, Justice BOYLE recognized that the
protections of the Due Process Clause are not as “clear-cut” as specific protections found
elsewhere in the Constitution. Id. at 651. Indeed, we have not found a decision of a
Michigan appellate court expressly recognizing a protection under the Due Process Clause
of the Michigan Constitution or an independent constitutional tort for violation of the right
to bodily integrity. We therefore conclude that the second and third factors weigh
somewhat against recognition of a damages remedy.
As to the fourth factor, the availability of an alternative remedy, we must determine
whether plaintiffs have any available alternative remedies for their constitutional-tort claim
against these specific defendants. Defendants argue that this fourth factor is dispositive
and that the availability of any other remedy forecloses the possibility of a judicially
inferred damages remedy in this case. Citing Jones, 462 Mich. at 337, defendants highlight
that “Smith only recognized a narrow remedy against the state on the basis of the
unavailability of any other remedy.” Like the Court of Appeals and the Court of Claims,
we conclude that defendants err in their reading of Jones. The Jones Court’s use of the
word “only” referred to a sentence that followed, distinguishing claims against the state
and specifically limiting the Court’s holding to cases involving a municipality or an
individual defendant. Id. We decline to hold that the availability of an alternative remedy
32
acts as an absolute bar to a judicially inferred damages remedy. The existence of alternative
remedies is given considerable weight, Smith, 428 Mich. at 647, but it is not dispositive.14
We conclude that because defendants enjoy expansive immunity under federal and
state law, plaintiffs have no alternative recourse to vindicate their rights beyond bringing a
constitutional-tort claim under Michigan’s Constitution. Any suit brought in federal court
for monetary damages under 42 USC 1983 for violation of rights granted under the federal
Constitution or a federal statute cannot be maintained in any court against a state, a state
agency, or a state official sued in his or her official capacity because the Eleventh
Amendment affords the state and its agencies immunity from such liability. See Howlett v
Rose, 496 U.S. 356, 365; 110 S. Ct. 2430; 110 L. Ed. 2d 332 (1990).
Generally, under state law, state-government employees acting within the scope of
their authority are immune from tort liability unless their actions constitute gross
negligence, MCL 691.1407(2), and even if governmental employees are found liable for
gross negligence, the state may not be held vicariously liable unless an exception to
governmental immunity applies under the governmental tort liability act, MCL 691.1401
et seq. State agencies are also “immune from tort liability if the governmental agency is
engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1).
14
We note that plaintiffs seek injunctive relief against several of the named defendants in
a related federal-court action. Plaintiffs seek an order to remediate the harm caused by
defendants’ conduct, including repairs to property and the establishment of a medical-
monitoring fund. Plaintiffs seek an award of compensatory and punitive damages.
Although plaintiffs may seek alternative remedies in federal court, that fact does not affect
our decision regarding the availability of alternative remedies. The availability of these
remedies remains to be seen. If those remedies materialize, they, of course, may affect any
future consideration of appropriate remedies in this action.
33
Moreover, the Local Financial Stability and Choice Act, MCL 141.1541 et seq., grants
emergency managers immunity from liability as provided in MCL 691.1407. MCL
141.1560(1).
Defendants suggest that plaintiffs’ injuries can be vindicated under the federal Safe
Drinking Water Act (SDWA), 42 USC 300f et seq., and the Michigan Safe Drinking Water
Act (MSDWA), MCL 325.1001 et seq. We disagree. The SDWA and MSDWA do not
provide a right to address constitutional violations. As the United States Court of Appeals
for the Sixth Circuit recognized in a federal case arising from the Flint water crisis, the
protections of the SDWA and the federal Constitution “are ‘not . . . wholly congruent’ ”
and would not foreclose constitutional claims arising under the federal Constitution. See
Boler v Earley, 865 F3d 391, 408-409 (CA 6, 2017) (citation omitted). We conclude that
the same is true for the MSDWA. Neither the SDWA nor the MSDWA addresses the
alleged conduct at issue in this case, which includes knowingly and deliberately
distributing contaminated water as well as fraudulent concealment of the hazardous
consequences of consuming and using the Flint River water. The SDWA and MSDWA
largely address the regulation of water quality by municipalities. These statutes do not
provide an alternative remedy for plaintiffs’ claim of injury to bodily integrity. We
therefore conclude that the fourth factor is neutral regarding the propriety of an inferred
damages remedy.
Finally, as to the fifth factor, which directs us to assess all other relevant
considerations, we agree with the Court of Appeals that it is appropriate to give substantial
weight to the shocking and outrageous nature of defendants’ alleged conduct. Plaintiffs
present allegations involving one of the most troublesome breaches of public trust in this
34
state’s history, with catastrophic consequences for Flint citizens’ health, well-being, and
property. If plaintiffs’ allegations are proved true, we agree that the nature of defendants’
alleged constitutional violations weighs markedly in favor of recognizing a damages
remedy.
In considering each of these five factors, recognizing that discovery has yet to take
place and accepting plaintiffs’ allegations as true, we believe that a damages remedy for
plaintiffs’ claim of violation of their right to bodily integrity under Const 1963, art 1, § 17
might be the appropriate remedy for plaintiffs’ harms.
III. CONCLUSION
We expressly affirm the Court of Appeals with regard to plaintiffs’ inverse-
condemnation claim. In all other aspects, the Court of Appeals opinion is affirmed by
equal division. MCR 7.315(A). We remand to the Court of Claims for further proceedings
consistent with this opinion.
Richard H. Bernstein
Bridget M. McCormack
Megan K. Cavanagh
35
STATE OF MICHIGAN
SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157335-7
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157340-2
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants.
BERNSTEIN, J. (concurring).
This Court should never elevate adherence to convoluted legalism and procedure
over the well-being of Michigan’s people. Plaintiffs in this case raise some of the most
disturbing allegations of malfeasance by government actors in Michigan’s history.
Before highlighting the facts of this case, it is hard not to acknowledge the unique
natural resources Michigan possesses. The state of Michigan holds the largest freshwater
reserves of any state in our nation. Yet, plaintiffs allege that in an effort to save a relatively
small amount of money in the context of sizable municipal budgets, the state of Michigan
and former Governor Snyder’s administration disregarded the known dangers of switching
Flint’s municipal water source, used without incident for nearly 60 years, to the Flint River.
At the time of plaintiffs’ alleged injuries, the city of Flint was under the financial
management of the state, purportedly for the city’s own benefit. Plaintiffs contend that the
state defendants authorized state-appointed emergency managers to provide them with
water that was contaminated with toxic levels of lead, E. coli, and Legionella bacteria.
Before the switch, defendants purportedly knew that the Flint River was contaminated and
2
that water from the Flint River was dangerous to consume and use. Without taking the
proper steps to ensure that Flint’s drinking water was safe, defendants nevertheless initiated
the water-source switch to the Flint River. Defendants then allegedly misled the public
and obfuscated the extent of the water crisis to quell its potential fallout. After the water
switch was initiated, plaintiffs contend that they suffered significant personal injury and
economic loss from damage to their property. They allege that their properties’ values
diminished after the full extent of the water crisis became public. This lawsuit followed.
After nearly six years of litigation, this Court is tasked with answering one simple
question: do plaintiffs possess the right to sue the government and its actors in their official
capacities for their injuries? I believe the answer to that question is obvious. It is
particularly important to note that this Court’s decision will affect not only the named
plaintiffs in this case but thousands of other citizens who experienced similar injuries and
losses from the use and ingestion of contaminated Flint River water. The putative class
surely includes seniors with preexisting health conditions, pregnant individuals, and, of
course, young children who will likely experience the most significant and life-altering
effects of lead poisoning.
Even when presented with this context, two of my dissenting colleagues would
dismiss plaintiffs’ claims because of purported procedural defects in their pleadings. By
way of highly legalistic analyses, they would deny plaintiffs the opportunity to conduct
any discovery, proceed with their case, and prove their claims. I write this separate opinion,
in part, to counter Justice MARKMAN’s arguments about plaintiffs’ purported failure to
adhere to the Court of Claims Act’s (COCA) statutory notice requirements. As the lead
opinion explains, I believe that questions of fact remain as to when plaintiffs’ claims
3
accrued. Dismissing plaintiffs’ claims at this juncture, in my view, would therefore be
premature. However, regardless of which dates the harms plaintiffs allege are later
determined to have occurred and accrued, I believe that two exceptions to the COCA’s
statutory notice requirement might still apply.
I write also to briefly counter Justice VIVIANO’s argument that this Court should
deny plaintiffs the right to sue for their personal injuries and deny a damages remedy
because the Legislature has not explicitly created a right to bodily integrity with such a
remedy. It is well known that this Court is the sole institution that may interpret and define
the parameters of Michigan’s Constitution. That being the case, I am completely unfazed
that the Legislature has not explicitly created a statutory right to bodily integrity. In my
opinion, plaintiffs may proceed with their claim because the Michigan Constitution’s Due
Process Clause, Const 1963, art 1, § 17, encompasses the right to bodily integrity.
I. ANALYSIS
A. STATUTORY NOTICE REQUIREMENTS
Plaintiffs allege that defendants attempted to conceal the water crisis from the public
and misled them for months before acknowledging the toxic and corrosive nature of the
water from the Flint River. Defendants argue that plaintiffs’ claims should be dismissed
because plaintiffs failed to file the claims in a timely manner. The irony of defendants’
argument, given that defendants are accused of concealing the existence of plaintiffs’
potential claims, is not lost on me.
4
1. THE HARSH-AND-UNREASONABLE-CONSEQUENCES EXCEPTION
Justice MARKMAN argues that the Court of Appeals erred in applying the harsh-and-
unreasonable-consequences exception, see Rusha v Dep’t of Corrections, 307 Mich. App.
300, 312; 859 NW2d 735 (2014), and by applying it to this case. I disagree. In my view,
if plaintiffs’ allegations are proved, the harsh-and-unreasonable-consequences exception
releases them from the notice requirements of MCL 600.6431.
In Rusha, the plaintiff alleged constitutional claims against the state for failing to
treat his multiple sclerosis during his incarceration, but he failed to file a notice of intent to
file a claim within six months of the alleged injury pursuant to MCL 600.6431. Rusha,
307 Mich. App. at 301. The Court of Appeals noted that “Michigan courts routinely enforce
statutes of limitations where constitutional claims are at issue.” Id. at 311. However, the
Court of Appeals also held that there exists an exception to such enforcement when strict
enforcement of a limitations period would be so harsh and unreasonable in its consequences
that it “effectively divest[s]” a plaintiff “of the access to the courts intended by the grant of
[a] substantive right.” Id. (quotation marks and citation omitted). More specifically, the
Court of Appeals then extended this exception to also relieve a plaintiff of statutory notice
requirements, like the one found in MCL 600.6431(3). Defendants argue that the Rusha
Court’s recognition of this exception conflicts with this Court’s holdings in Rowland v
Washtenaw Co Rd Comm, 477 Mich. 197, 200; 731 NW2d 41 (2007), Trentadue v Buckler
Automatic Lawn Sprinkler Co, 479 Mich. 378, 386-387; 738 NW2d 664 (2007), and
McCahan v Brennan, 492 Mich. 730, 733; 822 NW2d 747 (2012).
5
But I would not find such conflict to exist and would instead find our past precedent
to be distinguishable. Rowland,1 Trentadue,2 and McCahan3 each demanded strict
compliance with statutory limitations and notice requirements in the context of legislatively
granted rights rather than rights granted under the Constitution. However, this Court has
never held that constitutional claims against the state—and due-process claims in
particular—should be treated like the personal-injury claims raised in Rowland and
McCahan. Indeed, a separate concurrence in Bauserman v Unemployment Ins Agency, 503
Mich. 169, 194; 931 NW2d 539 (2019) (MCCORMACK, C.J., concurring), questioned
whether the strict-notice rules from Rowland and McCahan should apply to constitutional
claims against the state. The concurrence noted:
[W]e have not held that the same [rules from Rowland and McCahan are]
true of constitutional claims generally, or due-process claims in particular.
And I’m not sure we should: Rowland’s governmental-immunity rationale is
less persuasive in the constitutional context. The Rowland and McCahan
plaintiffs’ substantive claims (for personal injuries resulting from a defective
highway condition in Rowland, and for automobile tort liability in McCahan)
existed only by legislative grace—there is no constitutional guarantee of safe
1
In Rowland, a personal-injury case against a municipality in which the plaintiff fell and
was injured while crossing a street, this Court ruled that a suit may be dismissed for failure
to comply with a statutory notice requirement even if the defendant was not prejudiced by
the lack of notice. The Court explained, “[I]nasmuch as the Legislature is not even required
to provide a defective highway exception to governmental immunity, it surely has the
authority to allow such suits only upon compliance with rational notice limits.” Rowland,
477 Mich. at 212.
2
Trentadue, 479 Mich. at 386-387 (considering the statute of limitations for a wrongful-
death action).
3
In McCahan, 492 Mich. at 732-733, the Court determined that the notice requirement of
MCL 600.6431 is a “condition precedent to sue the state,” McCahan v Brennan, 291 Mich
App 430, 433; 804 NW2d 906 (2011), aff’d 492 Mich. 730 (2012), and that a claimant’s
failure to strictly comply warrants dismissal of the claim, McCahan, 492 Mich. at 746-747.
6
roads or payment of personal injury benefits. The state enjoys broad
immunity from suit unless it waives its immunity by creating a statutory right
of action; the Legislature may place whatever conditions it wishes on rights
of its own creation, including a notice requirement. And courts shouldn’t
undermine those legislatively created conditions.
But it is the Constitution that forbids the government from depriving
a person of his property without due process of law. The Legislature is not
the source of the due-process right (more often its target), so the fundamental
principle that animated our decisions in Rowland and McCahan isn’t
implicated here. Whether and how much the Legislature can limit a person’s
ability to pursue a due-process claim is a first-principles question: A strict-
compliance interpretation of the MCL 600.6431(3) notice requirement
applied to a due-process claim will permit the Legislature to burden or curtail
constitutional rights. How much of a burden is too much?
To be sure, the due-process right, like any other constitutional right,
is not absolute. “A constitutional claim can become time-barred just as any
other claim can. Nothing in the Constitution requires otherwise.” Block v
North Dakota, 461 U.S. 273, 292; 103 S. Ct. 1811; 75 L. Ed. 2d 840 (1983)
(citations omitted). Constitutional remedies may be “subject to a reasonable
time bar designed to protect other important societal values.” Hair v United
States, 350 F3d 1253, 1260 (CA Fed, 2003). The Legislature may, at its
discretion, restrict or change “the forms of action or modes of
remedy . . . provided adequate means of enforcing the right remain. In all
such cases, the question is one of reasonableness, and we have, therefore,
only to consider whether the time allowed in this statute is, under all the
circumstances, reasonable.” Terry v Anderson, 95 U.S. 628, 633; 24 L. Ed. 365
(1877).
But that’s the question: is the six-month, no-exceptions notice
provision reasonable when the government has taken a person’s property
without due process? . . . Hypotheticals show why it’s a hard question: If
the Legislature enacted a statute that required me to notice my intent to
challenge a local ordinance that limits gun ownership to one weapon per
household within 24 hours of having my weapon confiscated, we would
surely be troubled by that barrier to my ability to vindicate my Second
Amendment rights. And likewise if I wait 50 years to complain that denial
of a park permit for my annual church picnic violated the First Amendment,
we would think it unfair for the government to be on the hook when there is
likely no information available or witnesses around to contest the complaint.
I don’t know where this six-month notice period for a claim that the state has
7
taken my tax refund without due process falls on that continuum.
[Bauserman, 503 Mich. at 195-197.]
In this case, even if it is later determined that plaintiffs failed to timely file a notice
of intention to file a claim under MCL 600.6431(3), I agree with the Court of Appeals that,
consistent with Rusha, the application of this procedural requirement to bar plaintiffs’
claims would not be reasonable under the circumstances. See Terry, 95 U.S. at 633. As the
Court of Appeals noted:
[T]his is not a case in which an ostensible, single event or accident has given
rise to a cause of action, but one in which the event giving rise to the cause
of action was not readily apparent at the time of its happening. Similarly, a
significant portion of the injuries alleged to persons and property likely
became manifest so gradually as to have been well established before
becoming apparent to plaintiffs because the evidence of injury was concealed
in the water supply infrastructure buried beneath Flint and in the
bloodstreams of those drinking the water supplied via that infrastructure.
Plaintiffs in this case did not wait more than two years after discovering their
claims to file suit. Rather, they filed suit within six months of the state’s
public acknowledgment and disclosure of the toxic nature of the Flint River
water to which plaintiffs were exposed.
Further supporting the application of the harsh-and-unreasonable-
consequences exception to the requirement of statutory notice are plaintiffs’
allegations of affirmative acts undertaken by numerous state actors,
including named defendants, between April 25, 2014 and October 2015 to
conceal both the fact that the Flint River water was contaminated and
hazardous and the occurrence of any event that would trigger the running of
the six-month notice period. Under these unique circumstances, to file
statutory notice within six months of the date of the water source switch
would have required far more than ordinary knowledge and diligence on the
part of plaintiffs and their counsel. It would have required knowledge that
defendants themselves claim not to have possessed at the time plaintiffs’
causes of action accrued. [Mays v Governor, 323 Mich. App. 1, 35-36; 916
NW2d 227 (2018) (quotation marks and citations omitted).]
To foreclose plaintiffs’ claims at this stage of the litigation would effectively divest
plaintiffs of the opportunity to vindicate their constitutional rights. Plaintiffs should be
8
afforded the opportunity to conduct discovery and support their allegations before their
claims are dismissed. If their claims are proved but untimely, plaintiffs should be able to
utilize the harsh-and-unreasonable-consequences exception.
2. THE FRAUDULENT-CONCEALMENT EXCEPTION
Justice MARKMAN and defendants argue that the Court of Appeals erred in reading
the fraudulent-concealment exception of MCL 600.5855 to relieve plaintiffs from the
notice requirements of MCL 600.6431. I disagree and would affirm the Court of Appeals’
ruling that the fraudulent-concealment exception of MCL 600.5855 applies to MCL
600.6431. If plaintiffs prove the allegations in their complaint, the exception may provide
an alternative basis to deny defendants’ motions for summary disposition.
The Legislature created the fraudulent-concealment exception to relieve certain
plaintiffs of statutes of limitations. The exception is codified in the Revised Judicature Act
(RJA), MCL 600.101 et seq., specifically MCL 600.5855, which states:
If a person who is or may be liable for any claim fraudulently conceals
the existence of the claim or the identity of any person who is liable for the
claim from the knowledge of the person entitled to sue on the claim, the
action may be commenced at any time within 2 years after the person who is
entitled to bring the action discovers, or should have discovered, the
existence of the claim or the identity of the person who is liable for the claim,
although the action would otherwise be barred by the period of limitations.
MCL 600.5855 allows for the tolling of a statutory limitations period for two years if a
defendant has fraudulently concealed the existence of a claim for which that defendant is
liable.4 A “plaintiff must plead in the complaint the acts or misrepresentations that
comprised the fraudulent concealment” and “prove that the defendant committed
4
I note that the RJA has no statutory notice requirement. See MCL 600.101 et seq.
9
affirmative acts or misrepresentations that were designed to prevent subsequent
discovery.” Sills v Oakland Gen Hosp, 220 Mich. App. 303, 310; 559 NW2d 348 (1996).
In crafting the COCA, the Legislature imported the RJA’s fraudulent-concealment
exception, MCL 600.5855, into the COCA’s statute-of-limitations provision. See MCL
600.6452(2). MCL 600.6452(2) thus permits the commencement of an action within two
years after a claimant discovers or should have discovered a fraudulently concealed claim.
Yet, the statutory notice period of MCL 600.6431 prohibits the commencement of an action
unless notice is filed within six months following the event giving rise to the cause of action
or one year of the date on which the claim accrued. The Legislature did not create a
fraudulent-concealment exception for the statutory notice provision in the COCA. See
MCL 600.6431.
I conclude that the omission of a fraudulent-concealment exception to MCL
600.6431 is not reconcilable with the Legislature’s intent to provide claimants with two
years from the date of discovery to bring suit for harm that was fraudulently concealed, as
expressed in MCL 600.6452(2). The filing of a notice of intent to sue often occurs before
the actual filing of a complaint. If the fraudulent-concealment exception is not applied to
the statutory notice period in MCL 600.6431 and a claim is fraudulently concealed from a
plaintiff for more than six months, a plaintiff’s otherwise justiciable claim would always
be dismissed on notice grounds. The plaintiff would never have an ability to utilize the
Legislature’s fraudulent-concealment exception in MCL 600.6452(2) to toll the statutory
notice period. “[S]tatutory provisions are not to be read in isolation; rather, context matters,
and thus statutory provisions are to be read as a whole.” Robinson v Lansing, 486 Mich. 1,
15; 782 NW2d 171 (2010). “A statute is rendered nugatory when an interpretation fails to
10
give it meaning or effect.” Apsey v Mem Hosp, 477 Mich. 120, 131; 730 NW2d 695 (2007).
Adopting defendants’ arguments as they relate to fraudulent concealment would result in
reading out MCL 600.6452(2) entirely, because plaintiffs would never be able to utilize the
fraudulent-concealment exception. I agree with the Court of Appeals and reject the
contentions of both Justice MARKMAN and defendants.
The application of the fraudulent-concealment exception to statutory notice periods
does not undermine or frustrate the purpose of requiring timely statutory notice. As this
Court has previously recognized, the purpose of the notice provision in MCL 600.6431 is
to “establish[] a clear procedure” for pursuing a claim against the state and “eliminate[]
any ambiguity” about whether a claim will be filed. McCahan, 492 Mich. at 744 n 24. But
when defendants, who allegedly have knowledge of an event giving rise to liability,
actively conceal information to prevent litigation, the state suffers no ambiguity or shock
when those harmed sue. In those cases, I would hold that the fraudulent-concealment
exception indeed applies to toll the statutory notice period.
As the lead opinion states, whether plaintiffs can satisfy the exception is a factual
question that necessitates further discovery. At this stage of the litigation, summary
disposition on this ground would be inappropriate. If plaintiffs’ claims are proved but
untimely, plaintiffs should be able to utilize a fraudulent-concealment exception to the
COCA’s notice requirements.
B. A RIGHT TO BODILY INTEGRITY EXISTS IN MICHIGAN’S CONSTITUTION
Justice VIVIANO writes at length that a right to bodily integrity does not exist and
that our Legislature has not enumerated and created a damages remedy for such a right in
11
Michigan law. But his analysis misses a fundamental point: this Court is the only
institution that determines what our state’s Constitution means, and it does so
independently of the Legislature’s action or inaction in a given area. It is this Court alone
that may interpret our Constitution to encompass a right to bodily integrity. I believe that
if our state’s Constitution is to hold any tangible meaning, surely this is the case in which
a remedy for such a constitutional violation must be recognized. I would hold that the Due
Process Clause of Michigan’s Constitution includes a right to bodily integrity.
Michigan’s Due Process Clause states, “No person shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty or property,
without due process of law.” Const 1963, art 1, § 17. When the Court construes our
Constitution, it is “a fundamental principle of constitutional construction that we determine
the intent of the framers of the Constitution and of the people adopting it,” Holland v
Heavlin, 299 Mich. 465, 470; 300 N.W. 777 (1941), and we do this principally by examining
its language, Bond v Pub Sch of Ann Arbor Sch Dist, 383 Mich. 693, 699-700; 178 NW2d
484 (1970). “In interpreting our Constitution, we are not bound by the United States
Supreme Court’s interpretation of the United States Constitution, even where the language
is identical.” People v Goldston, 470 Mich. 523, 534; 682 NW2d 479 (2004). Instead,
“[this Court] must determine what law ‘ “the people have made.” ’ ” Id. (citation omitted).
“We are obligated to interpret our own organic instrument of government.” Sitz v Dep’t of
State Police, 443 Mich. 744, 763; 506 NW2d 209 (1993). Accordingly, this Court must
independently examine the text of Michigan’s Due Process Clause as well as this Court’s
precedents pertaining to this provision to ascertain whether a right to bodily integrity exists.
12
As I recognize in the lead opinion, this Court has not previously recognized a right
to bodily integrity. Thus, my focus lies on the language of the Due Process Clause itself.
“The primary objective in interpreting a constitutional provision is to determine the text’s
original meaning to the ratifiers, the people, at the time of ratification [in 1963].” Wayne
Co v Hathcock, 471 Mich. 445, 468; 684 NW2d 765 (2004). “In applying this principle of
construction, the people are understood to have accepted the words employed in a
constitutional provision in the sense most obvious to the common understanding and to
have ‘ratified the instrument in the belief that that was the sense designed to be
conveyed.’ ” People v Nutt, 469 Mich. 565, 573-574; 677 NW2d 1 (2004) (citation
omitted).
The United States Supreme Court has recognized for over a century that “[n]o right
is held more sacred, or is more carefully guarded by the common law, than the right of
every individual to the possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of law.” Union Pac R
Co v Botsford, 141 U.S. 250, 251; 11 S. Ct. 1000; 35 L. Ed. 734 (1891). Plaintiffs allege a
substantive due-process claim based on defendants’ conduct that caused their severe bodily
injuries and impaired their liberty. Plaintiffs frame these allegations as a violation of their
constitutional right to bodily integrity. Although this Court has not opined on the right
before, I believe that it is one of the most fundamental rights ensured by Michigan’s
Constitution. The right is implicit in our Due Process Clause and would have been obvious
to those who ratified our Constitution. I conclude that common notions of liberty in this
state are so inextricably entwined with physical freedom and freedom from state incursions
into the body that Michigan’s Due Process Clause plainly encompasses a right to bodily
13
integrity. See Cruzan v Dir, Missouri Dep’t of Health, 497 U.S. 261, 287; 110 S. Ct. 2841;
111 L. Ed. 2d 224 (1990) (O’CONNOR, J., concurring) (“Because our notions of liberty are
inextricably entwined with our idea of physical freedom and self-determination, the Court
has often deemed state incursions into the body repugnant to the interests protected by the
Due Process Clause.”). In my view, given the extensive history and strong prominence of
the right to bodily autonomy in our society, the Constitution’s ratifiers would agree.
II. CONCLUSION
Plaintiffs have waited for years for this Court to make a final determination as to
whether they even have a right to sue for their injuries. For the reasons expressed in this
concurrence and the lead opinion, I resoundingly answer “yes.”
Plaintiffs allege that defendants failed to acknowledge their own mistakes and then
compounded those mistakes by failing to provide basic solutions for the harms they caused.
To add insult to injury, in the context of these legal proceedings, defendants have acted as
a roadblock to any equitable resolution. Defendants have fought plaintiffs every step of
the way by attempting to foreclose their lawsuit through procedural grounds. Yet the
people of Flint have endured, and they now ask for an opportunity to be heard. The
judiciary should be the one governmental institution that hears their grievances and affords
them the opportunity to at least proceed with their case.
The world continues to turn, and new crises are ever present, but Flint remains much
the same as it was shortly after the water crisis began. Many of those who were injured
remain irreparably harmed—properties remain damaged, property values remain
depressed, and some Flint residents continue to distrust the safety of the water coming from
14
their taps. After a litany of indignities suffered at the hands of their government, the
citizens of Flint should not have to wait any longer for the opportunity to prove their
allegations.
Richard H. Bernstein
15
STATE OF MICHIGAN
SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157335-7
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157340-2
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants.
MCCORMACK, C.J. (concurring).
I concur fully with the lead opinion and agree that the plaintiffs have adequately
pled a conscience-shocking violation of their fundamental right to bodily integrity.1 I write
1
I respectfully disagree with Justice VIVIANO’s framing of the right in question as the right
“not to be exposed to contaminated water.” Plaintiffs’ substantive due-process claim is
based on the alleged violation of their constitutional right to bodily integrity. This well-
established right is among the most fundamental. “Because our notions of liberty are
inextricably entwined with our idea of physical freedom and self-determination, the Court
has often deemed state incursions into the body repugnant to the interests protected by the
Due Process Clause.” Cruzan v Dir, Missouri Dep’t of Health, 497 U.S. 261, 287; 110 S. Ct.
2841; 111 L. Ed. 2d 224 (1990) (O’Connor, J., concurring). See also Union Pac R Co v
Botsford, 141 U.S. 250, 251; 11 S. Ct. 1000; 35 L. Ed. 734 (1891) (“No right is held more
sacred, or is more carefully guarded by the common law, than the right of every individual
to the possession and control of his own person, free from all restraint or interference of
others, unless by clear and unquestionable authority of law.”); Schmerber v California, 384
U.S. 757, 772; 86 S. Ct. 1826; 16 L. Ed. 2d 908 (1966) (“The integrity of an individual’s person
is a cherished value of our society.”).
Justice VIVIANO relies on Washington v Glucksberg, 521 U.S. 702, 720-721; 117 S
Ct 2258; 138 L. Ed. 2d 772 (1997), to define the right at such a level of specificity. But the
viability of Glucksberg’s specificity prong is in serious question. In Obergefell v Hodges,
the Court acknowledged Glucksberg’s call for a “careful description” of the asserted right
but concluded that “while that approach may have been appropriate for the asserted right
2
separately to respond to Justice VIVIANO’s critique of Smith v Dep’t of Pub Health, 428
Mich. 540; 410 NW2d 749 (1987). This Court is ultimately responsible for enforcing our
state’s Constitution, and remedies are how we do that. In Smith, a majority of justices
agreed that “[a] claim for damages against the state arising from violation by the state of
the Michigan Constitution may be recognized in appropriate cases.” Id. at 544.
Justice VIVIANO believes that Smith’s foundations have been eroded by the United
States Supreme Court’s partial retreat from Bivens v Six Unknown Fed Bureau of Narcotics
Agents, 403 U.S. 388; 91 S. Ct. 1999; 29 L. Ed. 2d 619 (1971). I respectfully disagree. First,
it is not at all clear that the relevant holding of Smith is at all or exclusively based on Bivens.
there involved (physician-assisted suicide), it is inconsistent with the approach this Court
has used in discussing other fundamental rights, including marriage and intimacy.”
Obergefell v Hodges, 576 US ___, ___; 135 S. Ct. 2584, 2602; 192 L. Ed. 2d 609 (2015).
Dissenting Chief Justice Roberts asserted that “the majority’s position requires it to
effectively overrule Glucksberg, the leading modern case setting the bounds of substantive
due process.” Id. at ___; 135 S. Ct. at 2621 (Roberts, C.J., dissenting). See also Lawrence
v Texas, 539 U.S. 558, 566; 123 S. Ct. 2472; 156 L. Ed. 2d 508 (2003) (rejecting the framing
of the issue presented, as described in Bowers v Hardwick, 478 U.S. 186, 190; 106 S. Ct.
2841; 92 L. Ed. 2d 140 (1986), as “ ‘whether the Federal Constitution confers a fundamental
right upon homosexuals to engage in sodomy,’ ” because it “fail[s] to appreciate the extent
of the liberty at stake”); Yoshino, A New Birth of Freedom?: Obergefell v Hodges, 129
Harv L Rev 147, 154-159 (2015) (describing the development of Glucksberg’s “careful
description” requirement and the “battle royale over how abstractly an alleged liberty
interest could be defined”); Tribe, Equal Dignity: Speaking Its Name, 129 Harv L Rev F
16, 17 (2015) (“[T]here is no doubt that Glucksberg’s cramped methodology cast a
significant pall that Justice Kennedy’s Lawrence v. Texas opinion in 2003 only partially
swept away . . . and that his Obergefell opinion in 2015 finally displaced decisively.”)
(citation omitted). The alleged exposure to contaminated water is how the plaintiffs’
fundamental right to bodily integrity was violated; indeed, this is precisely what the
plaintiffs alleged in their complaint. In the same way that the Obergefell Court defined the
fundamental right as “the right to marry” rather than the “right to same-sex marriage,”
Obergefell, 576 US at ___; 135 S. Ct. at 2602, the fundamental right asserted here is the
right to bodily integrity, not the right to contaminant-free water.
3
Smith was a memorandum opinion, signed by the six participating justices, and Smith did
not cite Bivens or refer to it at all. All we know is that at least four justices agreed that
monetary damages may be available for state constitutional-tort claims. See Smith, 428
Mich. at 545 (stating that “at least four Justices concur in every holding, statement and
disposition of this memorandum opinion” but not identifying which justices agreed with
which of the seven propositions or why they agreed). Maybe this holding was informed
by Bivens, but maybe not.
Second, like Smith, Bivens established that monetary damages may be available to
remedy a constitutional violation even in the absence of statutory authorization for such a
claim. Although United States Supreme Court Justices Thomas and Gorsuch have
expressed their willingness to overrule Bivens, no other justice has expressed any interest
in that path. To the contrary, the United States Supreme Court has reaffirmed Bivens as
recently as three years ago. See Ziglar v Abbasi, 582 US ___, ___; 137 S. Ct. 1843, 1856-
1857; 198 L. Ed. 2d 290 (2017) (“And it must be understood that this opinion is not intended
to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-
seizure context in which it arose. Bivens does vindicate the Constitution by allowing some
redress for injuries, and it provides instruction and guidance to federal law enforcement
officers going forward. The settled law of Bivens in this common and recurrent sphere of
law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are
powerful reasons to retain it in that sphere.”). Though the Supreme Court has declined to
extend Bivens to new contexts and claims in recent years, its fundamental principles are
good law.
4
Of course, there are other reasons to conclude that monetary damages are available
in state constitutional-tort actions. When our sister state courts have so held, they have
typically based their decisions on the common law, the Restatement of Torts,2 an analogy
to Bivens, or a combination of all three. See, e.g., Brown v New York, 89 NY2d 172, 187;
674 NE2d 1129 (1996). If and when the appropriate time (and case) comes along, we can
debate whether Smith was correctly decided and what rationale we would use to justify the
conclusion that monetary damages are available (or not) in constitutional-tort actions.
But even assuming that Smith was a state Constitution, Bivens-like decision, I do
not believe that this Court should feel compelled to abandon it simply because some
members of the United States Supreme Court have grown sour on Bivens-style remedies in
a different context altogether. There are a number of reasons why. For one, we are separate
sovereigns. We decide the meaning of the Michigan Constitution and do not take our cue
from any other court, including the highest Court in the land.
And there is more that makes Bivens apples to Smith’s oranges. For example, the
critiques of Bivens are far less weighty here because there are no corresponding federalism
concerns. As Justice Harlan explained in his Bivens concurrence, the question in that case
was rooted not in the separation of powers, but in federalism: whether the liability of federal
2
Restatement Torts, 2d, § 874A provides: “When a legislative provision protects a class of
persons by proscribing or requiring certain conduct but does not provide a civil remedy for
the violation, the court may, if it determines that the remedy is appropriate in furtherance
of the purpose of the legislation and needed to assure the effectiveness of the provision,
accord to an injured member of the class a right of action, using a suitable existing tort
action or a new cause of action analogous to an existing tort action.” This section makes
clear that the term “legislative provision” includes a constitutional provision. See id. at
comment a.
5
officers should depend on “the vagaries of [state] common-law actions,” Bivens, 403 U.S.
at 409 (Harlan, J., concurring in the judgment), or one uniform body of federal law. Even
the government in Bivens did not argue that the judiciary lacked the power to fashion a
remedy. Instead, the government claimed that those remedies should be found only in the
state courts, not the federal courts. Id. at 390 (opinion of the Court) (“Respondents do not
argue that petitioner should be entirely without remedy for an unconstitutional invasion of
his rights by federal agents. In respondents’ view, however, the rights that petitioner
asserts—primarily rights of privacy—are creations of state and not of federal law.
Accordingly, they argue, petitioner may obtain money damages to redress invasion of these
rights only by an action in tort, under state law, in the state courts.”).
Principles of federalism and comity have continued to animate the Supreme Court’s
Bivens and 42 USC 19833 jurisprudence.4 As then Judge Gorsuch observed in Browder v
Albuquerque, 787 F3d 1076, 1084 (CA 10, 2015) (Gorsuch, J., concurring), “[o]ften, after
all, there’s no need to turn federal courts into common law courts and imagine a whole new
tort jurisprudence under the rubric of § 1983 and the Constitution in order to vindicate
3
Section 1983 of the Civil Rights Act of 1871 authorizes suits for monetary damages for
federal civil-rights violations committed under color of state law.
4
“Examples of the influence of federalism include: the existence and scope of absolute and
qualified individual immunities; the ‘official policy or custom’ requirement for local
government liability; and the various ‘procedural’ defenses the Court has applied to section
1983, such as statutes of limitations, preclusion and abstention.” Nahmod, State
Constitutional Torts: DeShaney, Reverse-Federalism and Community, 26 Rutgers L J 949,
950 (1995) (citations omitted). See also Friesen, Recovering Damages for State Bills of
Rights Claims, 63 Tex L Rev 1269, 1275 (1985) (arguing that state-court judges “should
not suffer from the conservatizing influences, which affect federal courts, of the need to
make nationally uniform rules, which often bind the officials of another sovereign”).
6
fundamental rights when we have state courts ready and willing to vindicate those same
rights using a deep and rich common law that’s been battle tested through the centuries.”
Indeed, one of the “happy incidents” of our federalist system is that it permits states to
forge their own paths in this area and function as laboratories of experiments. New State
Ice Co v Liebmann, 285 U.S. 262, 310-311; 52 S. Ct. 371; 76 L. Ed. 747 (1932) (Brandeis, J.,
dissenting). See also Sutton, 51 Imperfect Solutions: States and the Making of American
Constitutional Law (New York: Oxford University Press, 2018), p 18 (“A mistaken or an
ill-conceived constitutional decision is also easier to correct at the state level than it is at
the federal level. Not only do state court decisions cover a narrower jurisdiction and affect
fewer individuals, but the people at the state level also have other remedies at their disposal:
an easier constitutional amendment process and, for richer or poorer, judicial elections.
State courts, like state legislatures, thus have far more freedom to ‘try novel social and
economic experiments without risk to the rest of the country’ than the U.S. Supreme
Court.”), quoting New State Ice Co, 285 U.S. at 311.
Perhaps most importantly, there is no federal analogue for the type of action here,
which diminishes the relevance of the Supreme Court’s Bivens jurisprudence. The
plaintiffs allege more than a constitutional violation committed by a single rogue officer
that often serves as the basis for a Bivens claim. See Turkmen v Hasty, 789 F3d 218, 265
(CA 2, 2015) (Raggi, J., concurring in part and dissenting in part) (noting that “the typical
Bivens scenario” arises from “errant conduct by a rogue official”); Correctional Servs Corp
v Malesko, 534 U.S. 61, 70; 122 S. Ct. 515; 151 L. Ed. 2d 456 (2001) (“The purpose of Bivens
is to deter individual federal officers from committing constitutional violations.”). Instead,
the plaintiffs here allege that our government itself is responsible for a conscience-shocking
7
constitutional tort committed against the citizens of an entire city. They sued the governor
in his official capacity, the state of Michigan, the Michigan Department of Environmental
Quality, the Michigan Department of Health and Human Services, and two emergency
managers in their official capacities. This action—against these particular defendants—
could not be brought in federal court, even if the plaintiffs based their constitutional-tort
claim on the federal Due Process Clause. A nonconsenting state is generally immune from
suits by its own citizens in federal court. Hans v Louisiana, 134 U.S. 1, 13; 10 S. Ct. 504; 33
L. Ed. 842 (1890). This bar applies to suits seeking monetary damages against a governor
in his or her official capacity. See Governor of Georgia v Madrazo, 26 U.S. 110, 123-124;
7 L. Ed. 73 (1828); Edelman v Jordan, 415 U.S. 651, 663; 94 S. Ct. 1347; 39 L. Ed. 2d 662
(1974). It also applies to governmental entities that are considered “arm[s] of the State”
for Eleventh Amendment purposes, such as state agencies. See, e.g., Mt Healthy City Sch
Dist Bd of Ed v Doyle, 429 U.S. 274, 280; 97 S. Ct. 568; 50 L. Ed. 2d 471 (1977).
Nor could this action be brought as a § 1983 action in state or federal court. That
statute only authorizes suits against a person, and neither the state nor a state official is
considered a “person” for purposes of a damages suit under § 1983. Will v Mich Dep’t of
State Police, 491 U.S. 58, 63-65; 109 S. Ct. 2304; 105 L. Ed. 2d 45 (1989). Bivens actions
cannot be brought against federal agencies, Fed Deposit Ins Corp v Meyer, 510 U.S. 471,
486; 114 S. Ct. 996; 127 L. Ed. 2d 308 (1994), or against the President of the United States,
Nixon v Fitzgerald, 457 U.S. 731, 749; 102 S. Ct. 2690; 73 L. Ed. 2d 349 (1982) (holding that
a former president “is entitled to absolute immunity from damages liability predicated on
his official acts”).
8
In Smith, the Court held that Michiganders can sue the government directly for
violating their Michigan constitutional rights. Smith, 428 Mich. at 544 (“Where it is alleged
that the state, by virtue of custom or policy, has violated a right conferred by the Michigan
Constitution, governmental immunity is not available in a state court action.”). They can
sue the governor in his or her official capacity. They can sue state agencies. They can sue
the state of Michigan itself. These meaningful differences between federal Bivens claims
and Michigan constitutional-tort actions make the United States Supreme Court’s Bivens
jurisprudence of limited value as we determine how to approach state constitutional torts.5
Ultimately, this Court has a duty to protect the state constitutional rights of
Michiganders. The judiciary serves as a check on our coequal branches of government and
ensures that their acts are constitutional. See Marbury v Madison, 5 U.S. 137, 178; 2 L. Ed.
60 (1803). I agree with Justice Harlan that “the judiciary has a particular responsibility to
assure the vindication of constitutional interests,” Bivens, 403 U.S. at 407 (Harlan J.,
5
For what it is worth, I do not share Justice VIVIANO’s critique of Bivens’s foundation.
The Supreme Court has a long history of permitting suits for damages against rogue federal
officers. See Fallon, Bidding Farewell to Constitutional Torts, 107 Calif L Rev 933, 941-
946 (2019); see, e.g., Murray v Schooner Charming Betsy, 6 US (2 Cranch) 64; 2 L. Ed. 208
(1804); Little v Barreme, 6 US (2 Cranch) 170; 2 L. Ed. 243 (1804) (affirming tort damages
against government officers for ultra vires seizures of vessels); cf. Armstrong v Exceptional
Child Ctr, Inc, 575 U.S. 320, 327; 135 S. Ct. 1378; 191 L. Ed. 2d 471 (2015) (noting the “long
history of judicial review of illegal executive action, tracing back to England”).
Nor do I share Justice VIVIANO’s understanding that “[t]he United States Supreme
Court’s abandonment of implied causes of action in the statutory context has cast doubt on
Bivens . . . .” The difference between statutory-based claims and constitutional-tort claims
is significant. It makes sense to defer to the Legislature to authorize a cause of action
arising under a statute, which exists only by the Legislature’s creation, but, as discussed
below, I do not believe that the Legislature has exclusive jurisdiction over crafting
remedies for violations of the Constitution, which was created by the people, exists
independently of the Legislature, and reigns supreme in our system.
9
concurring in the judgment), and this responsibility is especially true of the state courts.
See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise
in Dialectic, 66 Harv L Rev 1362, 1401 (1953) (“In the scheme of the Constitution, [state
courts] are the primary guarantors of constitutional rights, and in many cases they may be
the ultimate ones.”). When a fundamental constitutional right has been violated, it falls to
the courts to determine what remedy is appropriate to vindicate it.
That the judicial power includes the ability to fashion remedies is a principle as old
as our republic. “[W]here federally protected rights have been invaded, it has been the rule
from the beginning that courts will be alert to adjust their remedies so as to grant the
necessary relief.” Bell v Hood, 327 U.S. 678, 684; 66 S. Ct. 773; 90 L. Ed. 939 (1946). The
Constitution does not explicitly authorize the courts to invalidate acts of Congress, issue
injunctions, or exclude evidence seized in violation of the Fourth Amendment. Yet in their
exercise of the judicial power, the courts have created and applied those remedies. See
Marbury, 5 U.S. at 177 (the judiciary has the power to void unconstitutional legislation);
Osborn v Bank of US, 22 US (9 Wheat) 738, 869; 6 L. Ed. 204 (1824) (power to issue
injunctions); Mapp v Ohio, 367 U.S. 643, 655; 81 S. Ct. 1684; 6 L. Ed. 2d 1081 (1961) (power
to order the exclusion of evidence). And monetary damages are an ordinary, long-
established remedy. Bivens, 403 U.S. at 395 (“That damages may be obtained for injuries
consequent upon a violation of the Fourth Amendment by federal officials should hardly
seem a surprising proposition. Historically, damages have been regarded as the ordinary
remedy for an invasion of personal interests in liberty.”). See also Nordstrom, Toward a
Law of Damages, 18 Case W Res L Rev 86, 89 (1966) (tracing the law of damages to “the
customs and orders of the Anglo-Saxons, well before the Norman Conquest in 1066 A.D.”).
10
Given this understanding of the judicial power, it is not clear to me why authorizing
damages for a constitutional-tort action would be exclusively a function of the Legislature
such that the judiciary is precluded from taking up the task, especially because
constitutional rights most often serve to limit the government’s power. Chief Justice John
Marshall questioned this too: “To what purpose are powers limited, and to what purpose is
that limitation committed to writing, if these limits may, at any time, be passed by those
intended to be restrained?” Marbury, 5 U.S. at 176. And as Justice Harlan observed, “it
would be at least anomalous to conclude that the federal judiciary . . . is powerless to
accord a damages remedy to vindicate social policies which, by virtue of their inclusion in
the Constitution, are aimed predominantly at restraining the Government as an instrument
of the popular will.” Bivens, 403 U.S. at 403-404 (Harlan, J., concurring in the judgment).
Smith’s holding that monetary damages are available in the appropriate case is
therefore unremarkable. What good is a constitutional right without a remedy? “The very
essence of civil liberty certainly consists in the right of every individual to claim the
protection of the laws, whenever he receives an injury. . . . The government of the United
States has been emphatically termed a government of laws, and not of men. It will certainly
cease to deserve this high appellation, if the laws furnish no remedy for the violation of a
vested legal right.” Marbury, 5 U.S. at 163.
Bridget M. McCormack
Megan K. Cavanagh
11
STATE OF MICHIGAN
SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157335-7
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157340-2
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants.
VIVIANO, J. (concurring in part and dissenting in part).
I agree with the lead opinion’s analysis of plaintiffs’ inverse-condemnation claim
and remand for further factual development to determine when that claim accrued.1 But I
would reverse the Court of Appeals’ denial of defendants’ motion for summary disposition
concerning plaintiffs’ substantive due-process claim for a violation of bodily integrity
because I do not believe that substantive due process encompasses a right to be protected
from exposure to contaminated water and I do not believe that plaintiffs allege conscience-
shocking conduct on the part of defendants. And even if plaintiffs did allege such a
1
In other words, I join Parts II(A), (B)(1), (B)(2), and (B)(3) of the lead opinion. Because
I believe more factual development is needed to determine when plaintiffs’ inverse-
condemnation claim accrued, I would not yet reach a conclusion as to whether the
fraudulent-concealment exception or the harsh-and-unreasonable-consequences exception
might apply if the claim is later determined to be untimely.
2
substantive due-process claim, I would not infer a damages remedy for such a claim in any
event.
I. SUBSTANTIVE DUE PROCESS
The Due Process Clause of the Michigan Constitution provides that “[n]o person
shall . . . be deprived of life, liberty or property, without due process of law.”2 Our
constitutional provision “is coextensive with its federal counterpart” in the Fourteenth
Amendment.3 We have held that the Due Process Clause offers “two separate types of
2
Const 1963, art 1, § 17.
3
Cummins v Robinson Twp, 283 Mich. App. 677, 700-701; 770 NW2d 421 (2009). The
Due Process Clause of the federal Constitution states, “No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.” US Const,
Am XIV (emphasis added).
We have held out the possibility that our Due Process Clause grants greater
protection than the federal clause. AFT Mich v Michigan, 497 Mich. 197, 245 n 28; 866
NW2d 782 (2015) (“The portions of Const 1963, art 1, § 17 and US Const, Am XIV
addressing due process are worded differently, so they may grant disparate levels of
protection. This Court has, on occasion, applied distinctive due process protections under
Const 1963, art 1, § 17 broader than have been afforded under US Const, Am XIV.”). In
general, however, “[w]e have often spoken indistinguishably about the standards governing
our respective constitutions and been vague as to which constitution we were interpreting.”
Delta Charter Twp v Dinolfo, 419 Mich. 253, 276 n 7; 351 NW2d 831 (1984), citing
Robinson Twp v Knoll, 410 Mich. 293; 302 NW2d 146 (1981); O’Donnell v State Farm
Mut Auto Ins Co, 404 Mich. 524; 273 NW2d 829 (1979); Advisory Opinion on
Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich. 465; 242 NW2d 3 (1976);
Manistee Bank & Trust Co v McGowan, 394 Mich. 655; 232 NW2d 636 (1975), overruled
on other grounds by Harvey v Michigan, 469 Mich. 1 (2003). Because plaintiffs do not
argue that our state’s Constitution provides greater protection in this instance, and because
3
protections—substantive and procedural[.]”4 Procedural due process, which is not at issue
in the instant case, requires that before a person is deprived of life, liberty, or property, he
or she must be given notice and an opportunity to be heard.5
“Textually, only procedural due process is guaranteed by the Fourteenth
Amendment [and Const 1963, art 1, § 17]; however, under the aegis of substantive due
process, individual liberty interests likewise have been protected against ‘ “certain
government actions regardless of the fairness of the procedures used to implement
them.” ’ ”6 There are two types of substantive due-process claims—ones that claim an
the particular language at issue is identical, it is unnecessary for me to address whether
Const 1963, art 1, § 17 offers more protection than its federal counterpart.
4
Bonner v Brighton, 495 Mich. 209, 226; 848 NW2d 380 (2014). See also Electro-Tech,
Inc v H F Campbell Co, 433 Mich. 57, 66 n 9; 445 NW2d 61 (1989) (“The Due Process
Clause of the Fourteenth Amendment embodies a dual function. Not only does it afford
procedural safeguards to protected life, liberty, and property interests, but it also protects
substantive aspects of those interests against impermissible governmental restrictions.”);
In re Beck, 287 Mich. App. 400, 401; 788 NW2d 697 (2010) (“There are two types of due
process: procedural and substantive.”), aff’d on other grounds 488 Mich. 6 (2010).
5
Bonner, 495 Mich. at 235 (“[D]ue process of law requires that deprivation of life, liberty,
or property by adjudication must be preceded by notice and an opportunity to be heard. To
comport with these procedural safeguards, the opportunity to be heard “must be granted at
a meaningful time and in a meaningful manner.”) (citations omitted). See also In re Beck,
287 Mich. App. at 401-402 (“The fundamental requirements of procedural due process are
notice and a meaningful opportunity to be heard before an impartial decision maker.”).
6
People v Sierb, 456 Mich. 519, 522-523; 581 NW2d 219 (1998), quoting Collins v Harker
Hts, 503 U.S. 115, 125; 112 S. Ct. 1061; 117 L. Ed. 2d 261 (1992), in turn quoting Daniels v
Williams, 474 U.S. 327, 331; 106 S. Ct. 662; 88 L. Ed. 2d 662 (1986). See also Trellsite
Foundry & Stamping Co v Enterprise Foundry, 365 Mich. 209, 214; 112 NW2d 476 (1961)
(“The concept of procedural due process was deeply rooted in American jurisprudence
4
interference with a constitutional right (either an enumerated right or a right deeply
rooted in our history and tradition), and ones that allege arbitrary abuses of power.7
from an early day, but that of substantive due process appeared in the cases at about the
middle of the 19th century.”).
Substantive due process has often been criticized because of its lack of textual basis.
See, e.g., TXO Prod Corp v Alliance Resources Corp, 509 U.S. 443, 470-471; 113 S. Ct.
2711; 125 L. Ed. 2d 366 (1993) (Scalia, J., concurring) (“I am willing to accept the
proposition that the Due Process Clause of the Fourteenth Amendment, despite its textual
limitation to procedure, incorporates certain substantive guarantees specified in the Bill of
Rights; but I do not accept the proposition that it is the secret repository of all sorts of other,
unenumerated, substantive rights—however fashionable that proposition may have been
(even as to economic rights of the sort involved here) at the time of the Lochner-era cases
the plurality relies upon.”); Albright v Oliver, 510 U.S. 266, 275; 114 S. Ct. 807; 127 L. Ed.
2d 114 (1994) (Scalia, J., concurring) (“I reject the proposition that the Due Process Clause
guarantees certain (unspecified) liberties, rather than merely guarantees certain procedures
as a prerequisite to deprivation of liberty.”); McDonald v Chicago, 561 U.S. 742, 791; 130
S. Ct. 3020; 177 L. Ed. 2d 894 (2010) (Scalia, J., concurring) (referring to his “misgivings
about Substantive Due Process”); Bork, The Tempting of America: The Political Seduction
of the Law (New York: Touchstone, 1990), p 31 (stating that the “transformation of the due
process clause from a procedural to a substantive requirement was an obvious sham”).
However, because I find that plaintiffs have not adequately alleged a violation of due
process, it is unnecessary for me to address the merits (or lack thereof) of substantive due
process generally.
7
As Lillard v Shelby Co Bd of Ed, 76 F3d 716, 724 (CA 6, 1996), explained:
This court has recognized two categories of substantive due process
rights:
The first type includes claims asserting denial of a right,
privilege, or immunity secured by the Constitution or by
federal statute other than procedural claims under “the
Fourteenth Amendment simpliciter.” . . .
The other type of claim is directed at official acts which
may not occur regardless of the procedural safeguards
accompanying them. The test for substantive due process
5
I discuss both types of claims below.8
claims of this type is whether the conduct complained of
“shocks the conscience” of the court.
Mertik v. Blalock, 983 F.2d 1353, 1367–68 (6th Cir.1993). The first type of
claim exists, for example, when a plaintiff alleges that his right to be free
from unreasonable seizures under the Fourth Amendment was violated. See
Wilson v. Beebe, 770 F.2d 578, 585–86 (6th Cir.1985) (en banc); see also
Braley v. City of Pontiac, 906 F.2d 220, 225 (6th Cir.1990). The latter type
of claim, however, does not “require[] a claim that some specific guarantee
of the Constitution apart from the due process clause be violated . . . . This
is a substantive due process right akin to the ‘fundamental fairness’ concept
of procedural due process.” Wilson, 770 F.2d at 586.
Compare Lillard, 76 F3d 716, with 1 Bodensteiner & Levinson, State & Local Government
Civil Rights Liability (November 2019 update), § 1:16 (“There are three aspects to
substantive due process. First, it protects the enumerated rights (Bill of Rights) from state
interference. Second, it provides the source for protecting certain, unenumerated,
nontextual, yet significant, rights from interference by the legislative branch of
government. Third, it prohibits arbitrary abuses of power by government officials.”). I
point out that it is not entirely clear whether plaintiffs must show both the deprivation of a
constitutional right and conscience-shocking behavior, or whether they must only show
one or the other. Guertin v Michigan, 912 F3d 907, 946 (CA 6, 2019) (McKeague, J.,
concurring in part and dissenting in part) (“At times we have treated these two elements
(deprivation of a constitutional right and conscience-shocking behavior) as separate
methods of stating a substantive-due-process claim. Range v. Douglas, 763 F.3d 573, 588
(6th Cir. 2014). At other times we have concluded they are both required. See Am. Express
Travel Related Servs. Co., Inc. v. Kentucky, 641 F.3d 685, 688 (6th Cir. 2011).”). Because
I conclude that plaintiffs have shown neither, it is not necessary to decide whether only one
would be sufficient.
8
It is not entirely clear from plaintiffs’ amended complaint which type of claim they assert.
6
A. THERE IS NO SUBSTANTIVE DUE-PROCESS RIGHT NOT TO BE EXPOSED
TO CONTAMINATED WATER
As to the first type of substantive due-process claim, in addition to those rights
enumerated in the Constitution, rights have been recognized in “ ‘matters relating to
marriage, family, procreation, and the right to bodily integrity.’ ”9 Importantly, a
substantive due-process analysis “ ‘must begin with a careful description of the asserted
right,’ for there has ‘always been reluctan[ce] to expand the concept of substantive due
process’ given that ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost
care whenever we are asked to break new ground in this field.’ ”10 After formulating a
careful description of the right in question, a court must then determine whether that right
is deeply rooted in this country’s history. As the United States Supreme Court explained
in Washington v Glucksberg:11
Our established method of substantive-due-process analysis has two
primary features: First, we have regularly observed that the Due Process
Clause specially protects those fundamental rights and liberties which are,
objectively, “deeply rooted in this Nation’s history and tradition,” and
“implicit in the concept of ordered liberty,” such that “neither liberty nor
justice would exist if they were sacrificed.” Second, we have required in
substantive-due-process cases a “careful description” of the asserted
fundamental liberty interest. Our Nation’s history, legal traditions, and
practices thus provide the crucial “guideposts for responsible
9
Sierb, 456 Mich. at 529, quoting Albright, 510 U.S. at 272.
10
Bonner, 495 Mich. at 226-227, quoting Reno v Flores, 507 U.S. 292, 302; 113 S. Ct. 1439;
123 L. Ed. 2d 1 (1993), and Collins, 503 U.S. at 125 (alterations in original).
11
Washington v Glucksberg, 521 U.S. 702; 117 S. Ct. 2258; 138 L. Ed. 2d 772 (1997).
7
decisionmaking” that direct and restrain our exposition of the Due Process
Clause.[12]
Importantly, a “careful description” of the right must be sufficiently specific in order to
determine whether it is deeply rooted in our nation’s history.13 Notably, “ ‘[T]he Court has
always been reluctant to expand the concept of substantive due process because guideposts
for responsible decisionmaking in this unchartered area are scarce and open-ended. . . .
The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we
are asked to break new ground in this field.’ ”14
12
Id. at 720-721 (citations omitted). See also id. at 725 (noting that the Court in Cruzan v
Dir, Missouri Dep’t of Health, 497 U.S. 261; 110 S. Ct. 2841; 111 L. Ed. 2d 224 (1990), had
grounded its decision in “the common-law rule that forced medication was a battery, and
the long legal tradition protecting the decision to refuse unwanted medical treatment,” not
“from abstract concepts of personal autonomy”).
13
See Glucksberg, 521 U.S. at 722 (“[T]he development of this Court’s substantive-due-
process jurisprudence . . . has been a process whereby the outlines of the ‘liberty’ specially
protected by the Fourteenth Amendment—never fully clarified, to be sure, and perhaps not
capable of being fully clarified—have at least been carefully refined by concrete examples
involving fundamental rights found to be deeply rooted in our legal tradition.”) (citation
omitted). For example, in Glucksberg the Court clarified that the right at issue was not “a
right to die” or “a liberty to choose how to die” but more specifically “a right to commit
suicide which itself includes a right to assistance in doing so.” Id. at 722-723 (quotation
marks and citations omitted).
Chief Justice MCCORMACK contends that “the viability of Glucksberg’s specificity
prong is in serious question.” But Glucksberg has not been overruled. And though the
majority stated in Obergefell v Hodges, 576 US ___, ___; 135 S. Ct. 2584, 2602; 192 L. Ed.
2d 609 (2015), that the careful-description approach “is inconsistent with the approach this
Court has used in discussing other fundamental rights, including marriage and intimacy,”
this case, of course, does not involve marriage or intimacy.
14
Sierb, 456 Mich. at 528, quoting Collins, 503 U.S. at 125. As Justice Scalia explained in
Michael H v Gerald D, 491 U.S. 110, 121-123; 109 S. Ct. 2333; 105 L. Ed. 2d 91 (1989):
8
Without that core textual meaning as a limitation, defining the scope of the
Due Process Clause “has at times been a treacherous field for this Court,”
giving “reason for concern lest the only limits to . . . judicial intervention
become the predilections of those who happen at the time to be Members of
this Court.” Moore v. East Cleveland, 431 U.S. 494, 502[; 97 S. Ct. 1932; 52
L. Ed. 2d 531] (1977). The need for restraint has been cogently expressed by
Justice WHITE:
That the Court has ample precedent for the creation of new
constitutional rights should not lead it to repeat the process at
will. The Judiciary, including this Court, is the most
vulnerable and comes nearest to illegitimacy when it deals with
judge-made constitutional law having little or no cognizable
roots in the language or even the design of the Constitution.
Realizing that the present construction of the Due Process
Clause represents a major judicial gloss on its terms, as well as
on the anticipation of the Framers . . . , the Court should be
extremely reluctant to breathe still further substantive content
into the Due Process Clause so as to strike down legislation
adopted by a State or city to promote its welfare. Whenever
the Judiciary does so, it unavoidably pre-empts for itself
another part of the governance of the country without express
constitutional authority. Moore, [431 US] at 544 (dissenting
opinion).
In an attempt to limit and guide interpretation of the Clause, we have insisted
not merely that the interest denominated as a “liberty” be “fundamental” (a
concept that, in isolation, is hard to objectify), but also that it be an interest
traditionally protected by our society. As we have put it, the Due Process
Clause affords only those protections “so rooted in the traditions and
conscience of our people as to be ranked as fundamental.” Snyder v.
Massachusetts, 291 U.S. 97, 105[; 54 S. Ct. 330; 78 L. Ed. 674] (1934)
(Cardozo, J.). Our cases reflect “continual insistence upon respect for the
teachings of history [and] solid recognition of the basic values that underlie
our society . . . .” Griswold v. Connecticut, 381 U.S. 479, 501[; 85 S. Ct.
1678; 14 L. Ed. 2d 510] (1965) (Harlan, J., concurring in judgment).
9
In this case, then, even assuming that the Due Process Clause in our state’s
Constitution protects a right to bodily integrity—a conclusion that, until the Court of
Appeals decision below, no appellate court in this state had ever reached15—plaintiffs must
carefully describe a particular right to bodily integrity, and that right must be deeply rooted
in the nation’s history and tradition.
So what is the right that plaintiffs assert? In their amended complaint, plaintiffs
allege that “[d]efendants deliberately and knowingly breached the constitutionally
protected bodily integrity of Plaintiffs by creating and perpetuating the ongoing exposure
to contaminated water, with deliberate indifference to the known risks of harm which said
exposure would, and did, cause to Plaintiffs.” (Emphasis added.) In other words, the right
that plaintiffs allege may carefully be described as a right not to be exposed to contaminated
water.16 With that careful description of the right in mind, we must next determine whether
15
Mays v Governor, 323 Mich. App. 1, 66; 916 NW2d 227 (2018) (“Michigan appellate
courts have acknowledged that the substantive component of the federal Due Process
Clause protects an individual’s right to bodily integrity, but this Court is unaware of any
Michigan appellate decision expressly recognizing the same protection under the Due
Process Clause of the Michigan Constitution or a stand-alone constitutional tort for
violation of the right to bodily integrity.”) (citation omitted).
16
See also Guertin, 912 F3d at 956 (McKeague, J., concurring in part and dissenting in
part) (describing the right as “protection from exposure to lead-contaminated water
allegedly caused by policy or regulatory decisions or statements”).
I believe that the majority in Guertin erred by describing the right too generally.
See id. at 921 (opinion of the court) (affirming the district court’s conclusion that it is a
violation of the substantive due-process right to bodily integrity when a government actor
“ ʻknowingly and intentionally introduc[es] life-threatening substances into individuals
without their consent, especially when such substances have zero therapeutic benefit’ ”).
10
such a right is “ ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the
concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were
sacrificed.’ ”17
Importantly, I am aware of no case holding that such a right is encompassed in
substantive due process. In fact, there are several cases explicitly holding that there is no
such right to a contaminant-free environment. While considering a challenge to the
addition of fluoride to the water supply, one California court stated, “[T]he right to bodily
integrity is not coextensive with the right to be free from the introduction of an allegedly
contaminated substance in the public drinking water.”18 As Judge McKeague explained in
See also Hootstein v Amherst-Pelham Regional Sch Comm, 361 F Supp 3d 94 (D Mass,
2019) (relying on Guertin).
17
Glucksberg, 521 U.S. 720-721 (citations omitted).
18
Coshow v City of Escondido, 132 Cal App 4th 687, 709-710; 34 Cal Rptr 3d 19 (2005).
Several federal courts have similarly held that there is no right to a contaminant-free
environment. S F Chapter of A Philip Randolph Institute v US Environmental Protection
Agency, unpublished opinion of the United States District Court for the Northern District
of California, issued March 28, 2008 (Case No. C 07-04936 CRB), pp 6-7 (rejecting the
plaintiffs’ claim that they had a right to be free from climate-change pollution); Concerned
Citizens of Nebraska v US Nuclear Regulatory Comm, 970 F2d 421, 426-427 (CA 8, 1992)
(“[W]e are unable to conclude that a right to an environment free of any non-natural
radiation is so “deeply rooted in this Nation’s history and tradition,” as to render it
fundamental.”); In re “Agent Orange” Prod Liability Litigation, 475 F Supp 928, 934
(EDNY, 1979) (“Since there is not yet a constitutional right to a healthful environment,
there is not yet any constitutional right under the fifth, ninth, or fourteenth amendments to
be free of the allegedly toxic chemicals involved in this litigation. Plaintiffs’ constitutional
claims are dismissed for failure to state a claim.”) (citation omitted); Pinkney v Ohio
Environmental Protection Agency, 375 F Supp 305, 310 (ND Ohio, 1974) (“[T]he Court is
unable to rule that the right to a healthful environment is a fundamental right under the
Constitution.”); Fed Employees for Non-Smokers’ Rights v United States, 446 F Supp 181,
11
his partial concurrence and dissent in Guertin v Michigan,19 another case arising from the
Flint water crisis, “The mere fact that no court of controlling authority has ever recognized
the type of due process right that plaintiffs allege in this case is all we need to conclude the
right is not clearly established.”20
There is no debate to be had on this subject. Because the right to be free from
exposure to contaminated water “is neither implicit in the concept of ordered liberty nor
deeply rooted in this nation’s history and tradition[,] [i]t would be an impermissibly radical
184 (DDC, 1978); Tanner v Armco Steel Corp, 340 F Supp 532, 537 (SD Tex, 1972) (“[N]o
legally enforceable right to a healthful environment, giving rise to an action for damages,
is guaranteed by the Fourteenth Amendment or any other provision of the Federal
Constitution.”); Ely v Velde, 451 F2d 1130, 1139 (CA 4, 1971) (holding that there is no
constitutional right to a healthful environment). See also Murthy, A New Constitutive
Commitment To Water, 36 BC J L & Soc Just 159, 159-160 (2016) (“A constitutional right
to affordable water for drinking, hygiene, and sanitation does not exist in the United
States.”); Mansfield Apartment Owners Ass’n v City of Mansfield, 988 F2d 1469, 1476 (CA
6, 1993) (holding that the plaintiffs failed to state a claim for violation of substantive due
process by challenging the defendants’ policy of turning off water to the landlords’ real
estate when the tenants failed to pay their water bills).
19
Guertin v Michigan, 912 F3d 907 (CA 6, 2019).
20
Id. at 942 (McKeague, J., concurring in part and dissenting in part). As even the majority
in Guertin recognized: “There is, of course, no fundamental right to water service.
Moreover, the Constitution does not guarantee a right to live in a contaminant-free, healthy
environment.” Id. at 921-922 (opinion of the court) (quotation marks and citation omitted),
citing Lake v Southgate, unpublished opinion of the United States District Court for the
Eastern District of Michigan, issued February 28, 2017 (Case No. 16-10251), p 4
(collecting cases).
12
departure from existing tradition, and from the principles that underlie that tradition, to
declare that there is such a fundamental right protected by the Due Process Clause.”21
Nevertheless, the Court of Appeals majority did not begin its analysis with a careful
description of the right that plaintiffs assert. It did refer to a right to be free of “ ʻan
egregious, nonconsensual entry into the body which was an exercise of power without any
legitimate governmental objective.ʼ ”22 And the majority then summarized plaintiffs’
allegations as consisting of “a nonconsensual entry of contaminated and toxic water into
[plaintiffs’] bodies as a direct result of defendants’ decision to pump water from the Flint
21
People v Kevorkian, 447 Mich. 436, 481; 527 NW2d 714 (1994). See also Sierb, 456
Mich. at 523-524 (“[C]ourts should reject the ‘unprincipled creation of state constitutional
rights that exceed their federal counterparts.’ ”), quoting Sitz v Dep’t of State Police, 443
Mich. 744, 763; 506 NW2d 209 (1993).
In fact, there are very few cases in which plaintiffs challenge contaminants in the
water, and what few cases exist are relatively recent. See, e.g., Hootstein, 361 F Supp 3d
94; Brown v Detroit Pub Sch Community Dist, 763 F Appx 497 (CA 6, 2019); In re Camp
Lejeune North Carolina Water Contamination Litigation, 263 F Supp 3d 1318 (ND Ga,
2016); Rietcheck v Arlington, unpublished opinion of the United States District Court for
the District of Oregon, issued January 4, 2006 (Case No. 04-CV-1239-BR); Coshow, 132
Cal App 4th 687; City of Austin v Quick, 930 S.W.2d 678 (Tex App, 1996); Ayers v Jackson
Twp, 189 NJ Super 561; 461 A2d 184 (Law Div, 1983). As the United States Supreme
Court explained in Reno, 507 U.S. at 303, “The mere novelty of such a claim is reason
enough to doubt that ‘substantive due process’ sustains it; the alleged right certainly cannot
be considered ‘ “so rooted in the traditions and conscience of our people as to be ranked as
fundamental.” ’ ” (Citation omitted.)
22
Mays, 323 Mich. App. at 60, quoting Rogers v Little Rock, Arkansas, 152 F3d 790, 797
(CA 8, 1998). See also Guertin, 912 F3d at 920-921 (“Involuntarily subjecting
nonconsenting individuals to foreign substances with no known therapeutic value—often
under false pretenses and with deceptive practices hiding the nature of the interference—
is a classic example of invading the core of the bodily integrity protection.”).
13
River into their homes and defendants’ subsequent affirmative act of physically switching
the water source.”23
This general description of a right against nonconsensual entry of substances into
the body can be found in other cases, such as In re Cincinnati Radiation Litigation.24 There
the defendant physicians experimented on terminal cancer patients by subjecting them to
large doses of radiation, all while concealing the nature of the experiment.25 But the facts
in the instant case are very different than those in In re Cincinnati. Plaintiffs do not allege
that defendants knowingly and secretly performed dangerous experiments on them.
Plaintiffs allege that defendants switched the source of Flint’s drinking water “despite
knowledge of a 2011 study commissioned by Flint officials that cautioned against the use
of Flint River water as a source of drinking water and despite the absence of any
independent state scientific assessment of the suitability of using water drawn from the
Flint River as drinking water” and then engaged in a cover-up.26 Plaintiffs have made
serious accusations about the manner in which these decisions were made and the grave
consequences that followed for plaintiffs and other Flint residents. I do not take these
allegations lightly. However, I think it is clear that the facts alleged in this case are distinct
23
Mays, 323 Mich. App. at 60.
24
In re Cincinnati Radiation Litigation, 874 F Supp 796 (SD Ohio, 1995).
25
Id. at 800. The United States District Court for the Southern District of Ohio denied the
defendants’ motion to dismiss the plaintiffs’ substantive due-process claim. Id. at 801.
26
Mays, 323 Mich. App. at 20.
14
from those in In re Cincinnati.27 As Judge McKeague noted in his partial concurrence in
Guertin:
These cases [like In re Cincinnati] delineate the contours of the right
to bodily integrity in terms of intrusive searches or forced medication. . . .
Even the few district court or sister circuit cases cited by the majority do not
clarify the contours of plaintiffs’ alleged right. All except one of those cases
deal with medical professionals performing government-sponsored invasive
procedures or harmful experiments on unsuspecting patients. The last one
deals with police officers who coerced individuals to ingest marijuana while
those individuals were under the officer’s control. So those cases further
elaborate the ways in which medical or law enforcement personnel may
interfere with an individual’s right to bodily integrity. But they say nothing
about how non-custodial policy or regulatory decisions or statements
affecting the quality of an environmental resource may do so. In short,
neither our Nation’s history and traditions nor governing bodily integrity
jurisprudence suggests that the conduct alleged here is comparable to a
“forcible physical intrusion[] of the body by the government.” Planned
Parenthood Sw. Ohio Region, 696 F.3d [490, 506 (CA 6, 2012)]. “The mere
novelty of such a claim is reason enough to doubt that ‘substantive due
process’ sustains it.” Reno v. Flores, 507 U.S. 292, 303, 113 S. Ct. 1439, 123
L. Ed. 2d 1 (1993).”[28]
I believe the Court of Appeals erred by describing the right so generally that it encompasses
cases with very different facts.
27
So are other cases involving forced medication. See, e.g., Washington v Harper, 494 U.S.
210, 221-222; 110 S. Ct. 1028; 108 L. Ed. 2d 178 (1990) (stating that the inmate “possess[ed]
a significant liberty interest in avoiding unwanted administration of antipsychotic drugs
under the Due Process Clause of the Fourteenth Amendment”); Cruzan, 497 U.S. at 278
(stating that the Fourteenth Amendment encompasses “[t]he principle that a competent
person has a constitutionally protected liberty interest in refusing unwanted medical
treatment”).
28
Guertin, 912 F3d at 956-957 (McKeague, J., concurring in part and dissenting in part).
15
A right to be free from contaminated public water is clearly not “ ‘deeply rooted in
this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty . . . .’ ”29
Like Justice Scalia, I “believe[] that the text of the Constitution, and our traditions, say
what they say and there is no fiddling with them.”30 There is simply no historical support
for a right to receive public water free from contaminants.31 It is “judicial usurpation,” as
Justice Scalia called it, to use substantive due process to add the rights we prefer to those
explicitly set forth in the Constitution or protected by longstanding history and tradition.32
29
Glucksberg, 521 U.S. at 721 (citations omitted). See also Cruzan, 497 U.S. at 294 (Scalia,
J., concurring) (“It is at least true that no ‘substantive due process’ claim can be maintained
unless the claimant demonstrates that the State has deprived him of a right historically and
traditionally protected against state interference.”).
30
Planned Parenthood of Southeastern Pennsylvania v Casey, 505 U.S. 833, 998; 112 S. Ct.
2791; 120 L. Ed. 2d 674 (1992) (Scalia, J., concurring in part and dissenting in part).
31
That there is no constitutional right does not mean that our citizens should not expect
and demand to receive public water free from contaminants or hold their public officials
accountable for providing contaminated water (whether at the ballot box or by asserting
other viable legal claims, which plaintiffs have done here and in a number of other related
suits arising out of the Flint water crisis).
32
Chicago v Morales, 527 U.S. 41, 85; 119 S. Ct. 1849; 144 L. Ed. 2d 67 (1999) (Scalia, J.,
dissenting). See also Webster v Reproductive Health Servs, 492 U.S. 490, 532; 109 S. Ct.
3040; 106 L. Ed. 2d 410 (1989) (Scalia, J., concurring in part and concurring in the
judgment) (“The outcome of today’s case will doubtless be heralded as a triumph of
judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this
Court’s self-awarded sovereignty over a field where it has little proper business since the
answers to most of the cruel questions posed are political and not juridical—a sovereignty
which therefore quite properly, but to the great damage of the Court, makes it the object of
the sort of organized public pressure that political institutions in a democracy ought to
receive.”); Casey, 505 U.S. at 980 (Scalia, J., concurring in the judgment in part and
dissenting in part) (“The issue is whether it is a liberty protected by the Constitution of the
United States. I am sure it is not. I reach that conclusion not because of anything so exalted
16
By neglecting both to formulate a careful description of the right that plaintiffs assert and
to take notice of the readily apparent fact that there have been no historical or legal
protections for it, this Court, by leaving in place the Court of Appeals majority opinion,
has discarded the tether that “sought to limit the damage” of our Court’s “ ‘right-making’
power.”33
as my views concerning the ‘concept of existence, of meaning, of the universe, and of the
mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that
bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution
says absolutely nothing about it, and (2) the longstanding traditions of American society
have permitted it to be legally proscribed.”) (citation omitted); Cruzan, 497 U.S. at 293
(Scalia, J., concurring) (“I would have preferred that we announce, clearly and promptly,
that the federal courts have no business in this field; that American law has always accorded
the State the power to prevent, by force if necessary, suicide—including suicide by refusing
to take appropriate measures necessary to preserve one’s life; that the point at which life
becomes ‘worthless,’ and the point at which the means necessary to preserve it become
‘extraordinary’ or ‘inappropriate,’ are neither set forth in the Constitution nor known to the
nine Justices of this Court any better than they are known to nine people picked at random
from the Kansas City telephone directory; and hence, that even when it is demonstrated by
clear and convincing evidence that a patient no longer wishes certain measures to be taken
to preserve his or her life, it is up to the citizens of Missouri to decide, through their elected
representatives, whether that wish will be honored. It is quite impossible (because the
Constitution says nothing about the matter) that those citizens will decide upon a line less
lawful than the one we would choose; and it is unlikely (because we know no more about
‘life and death’ than they do) that they will decide upon a line less reasonable.”);
Obergefell, 576 US at ___; 135 S. Ct. at 2627 (Scalia, J., dissenting) (“The opinion in these
cases is the furthest extension in fact—and the furthest extension one can even imagine—
of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments
neglect to mention. This practice of constitutional revision by an unelected committee of
nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People
of the most important liberty they asserted in the Declaration of Independence and won in
the Revolution of 1776: the freedom to govern themselves.”).
33
Morales, 527 U.S. at 85 (Scalia, J., dissenting).
17
B. DEFENDANTS’ ACTIONS DO NOT SHOCK THE CONSCIENCE
Alternatively, if a plaintiff does not claim a violation of a right that is deeply rooted
in our nation’s history and tradition, there may still be a due-process violation if
defendants’ conduct shocked the conscience. The Court of Appeals correctly recounted
the requirement that a plaintiff allege conscience-shocking behavior in order to plead a
violation of substantive due process:
Violation of the right to bodily integrity involves “an egregious,
nonconsensual entry into the body which was an exercise of power without
any legitimate governmental objective.” Rogers v Little Rock, Arkansas, 152
F3d 790, 797 (CA 8, 1998), citing Sacramento Co v Lewis, 523 U.S. 833, 847
n 8; 118 S. Ct. 1708; 140 L. Ed. 2d 1043 (1998). . . . [T]o survive dismissal,
the alleged “violation of the right to bodily integrity must be so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.”
Villanueva v City of Scottsbluff, 779 F3d 507, 513 (CA 8, 2015) (quotation
marks and citation omitted); see also Mettler Walloon, LLC v Melrose Twp,
281 Mich. App. 184, 198; 761 NW2d 293 (2008) (explaining that in the
context of individual governmental actions or actors, to establish a
substantive due-process violation, “the governmental conduct must be so
arbitrary and capricious as to shock the conscience”).
“Conduct that is merely negligent does not shock the conscience, but
‘conduct intended to injure in some way unjustifiable by any government
interest is the sort of official action most likely to rise to the conscience-
shocking level.’ ” Votta v Castellani, 600 F Appx 16, 18 (CA 2, 2015),
quoting Sacramento Co, 523 U.S. at 849. At a minimum, proof of deliberate
indifference is required. McClendon v City of Columbia, 305 F3d 314, 326
(CA 5, 2002). A state actor’s failure to alleviate “a significant risk that he
should have perceived but did not” does not rise to the level of deliberate
indifference. Farmer v Brennan, 511 U.S. 825, 838; 114 S. Ct. 1970; 128 L. Ed.
2d 811 (1994). To act with deliberate indifference, a state actor must
“ ‘know[] of and disregard[] an excessive risk to [the complainant’s] health
or safety.’ ” Ewolski v City of Brunswick, 287 F3d 492, 513 (CA 6, 2002),
quoting Farmer, 511 U.S. at 837. “The case law . . . recognizes official
conduct may be more egregious in circumstances allowing for
18
deliberation . . . than in circumstances calling for quick decisions . . . .”
Williams v Berney, 519 F3d 1216, 1220-1221 (CA 10, 2008).[34]
If the above quote is not sufficiently clear, the bar for conduct that “shock[s] the
conscience” is so high that it has been described as “virtually insurmountable.”35
34
Mays, 323 Mich. App. at 60-61. See also In re Beck, 287 Mich. App. at 402 (“ ʻ[T]he
essence of a substantive due process claim is the arbitrary deprivation of liberty or property
interests.’ A person claiming a deprivation of substantive due process ‘must show that the
action was so arbitrary (in the constitutional sense) as to shock the conscience.’ ”) (citations
omitted).
35
Rimmer-Bey v Brown, 62 F3d 789, 791 n 4 (CA 6, 1995) (describing the task of showing
conscience-shocking conduct as “a virtually insurmountable uphill struggle”). See also
Cruz v Puerto Rico Power Auth, 878 F Supp 2d 316, 328 (D Puerto Rico, 2012) (“ ‘The
burden to show state conduct that “shocks the conscience” is extremely high, requiring
“stunning” evidence of “arbitrariness and caprice” that extends beyond “[m]ere violations
of state law, even violations resulting from bad faith” to “something more egregious and
more extreme.” ’ ”), quoting J R v Gloria, 593 F3d 73, 80 (CA 1, 2010), in turn quoting
DePoutot v Raffaelly, 424 F3d 112, 119 (CA 1, 2005); Al-Ami’n v Clarke, unpublished
opinion of the United States District Court for the Eastern District of Virginia, issued
February 11, 2014 (Case No. 2:13cv167), p 3 (“This standard is very high and difficult to
meet[.]”); Uhlrig v Harder, 64 F3d 567, 574 (CA 10, 1995) (“[T]he ‘shock the conscience’
standard requires a high level of outrageousness . . . .”); 16B Am Jur 2d, Constitutional
Law (July 2020 update), § 960 (“State conduct offends substantive due process when it
shocks the conscience, constitutes a force that is so brutal as to offend even hardened
sensibilities, or is offensive to human dignity. In fact, only a substantial infringement of
state law prompted by personal or group animus or a deliberate flouting of the law that
trammels significant personal or property rights is a substantive due-process violation. . . .
[A] mere violation of state law is not the kind of truly irrational governmental action which
gives rise to a substantive due-process claim.”) (citations omitted).
In fact, the “deliberate indifference” standard was borrowed from Eighth
Amendment jurisprudence. See Sacramento Co, 523 U.S. at 849-850. In the Eighth
Amendment context, deliberate indifference is also an extremely high standard. See, e.g.,
Arenas v Calhoun, 922 F3d 616, 620 (CA 5, 2019) (“ ‘Deliberate indifference is an
extremely high standard to meet.’ ”), quoting Domino v Texas Dep’t of Criminal Justice,
239 F3d 752, 756 (CA 5, 2001); Battista v Clarke, 645 F3d 449, 453 (CA 1, 2011) (stating
that the deliberate-indifference standard “leave[s] ample room for professional judgment,
19
Plaintiffs allege that defendants switched Flint’s water source despite a 2011 study
cautioning against the use of water from the Flint River and warning that the Flint Water
Treatment Plant needed upgrades.36 Following that study, there was continuing debate
about whether the water source should be switched, with some additional studies indicating
it should not, but with other individuals arguing that those studies were not reliable. After
switching water sources, certain experts continued to warn about the dangers associated
with the water from the Flint River. Almost immediately, plaintiffs and other Flint
residents began to complain about the quality of the water. As time went on, there were
more and more indications that the water was not safe, including various large public and
private entities deciding to switch water sources, an outbreak of Legionnaires’ disease, and
medical testing indicating that children had increased levels of lead in their blood. While
constraints presented by the institutional setting, and the need to give latitude to
administrators who have to make difficult trade-offs as to risks and resources”).
36
ROWE Professional Services Company & Lockwood, Andrews & Newnam, Inc,
Analysis of the Flint River as a Permanent Water Supply for the City of Flint (July 2011),
available at
(accessed July 13, 2020) [https://perma.cc/KJ8F-PNU8]. This study did conclude that
there would “need to be some modifications to existing facilities, operating agreements,
and permits” if the Flint River was to be used for the water supply. Id. at 12. It then
suggested various modifications that would be needed to meet expected future demand but
stated that without those modifications the river could supply approximately 2/3 of the
expected daily demand. Id. In another section, the study stated: “Preliminary analysis
indicates that water from the river can be treated to meet current regulations; however,
additional treatment will be required than for [sic] Lake Huron water. This results in higher
operating costs than the alternative of a new Lake Huron supply.” Id. at 7. But I see
nothing in this particular study that clearly indicates that using the Flint River as a water
source would risk a public health crisis.
20
this evidence mounted, defendants’ representatives continued to assure the public that the
water was safe. Finally, defendants opted to change back to the previous water source.
I am not convinced that the studies and expert opinions plaintiffs cite in their
complaint are sufficient to show that defendants’ behavior was deliberately indifferent.37
In any complex decision, there are many factors and alternatives that must be considered.
This is especially true for major decisions like this one—each option will likely present
various risks and costs that must be weighed against the potential benefits. Weighing these
factors is a difficult task. Though the evidence plaintiffs cite, viewed in isolation and with
the benefit of hindsight, certainly provides some indications of the risks associated with
switching Flint’s water source, plaintiffs themselves also recount that former Governor
Snyder testified that he was repeatedly assured by the Department of Environmental
Quality that the water was safe. Plaintiffs have not alleged that there was uniform
agreement or a broad consensus that using the Flint River as a water source would cause a
serious public health crisis. While there were certainly more indications of serious water-
37
Defendants moved for summary disposition regarding plaintiffs’ claim of a substantive
due-process right to bodily integrity under MCR 2.116(C)(7) and (8). For motions under
MCR 2.116(C)(7), “[t]he contents of the complaint are accepted as true unless contradicted
by documentation submitted by the movant.” Maiden v Rozwood, 461 Mich. 109, 119; 597
NW2d 817 (1999). Motions under MCR 2.116(C)(8) “test[] the legal sufficiency of the
complaint. All well-pleaded factual allegations are accepted as true and construed in a
light most favorable to the nonmovant.” Id. Courts decide motions under MCR
2.116(C)(8) by considering only the pleadings. Id. at 119-120. A motion “may be granted
only where the claims alleged are ‘so clearly unenforceable as a matter of law that no
factual development could possibly justify recovery.’ ” Id. at 119, quoting Wade v Dep’t
of Corrections, 439 Mich. 158, 163; 483 NW2d 26 (1992).
21
quality problems as time went on, the initial studies and expert analyses were contradictory
concerning the nature and extent of the water-quality problems and whether the problems
could be corrected.38 Defendants continued to gather information regarding the quality of
the water and took that information into account when determining their course of action.39
Defendants then took steps to reduce the health risks, allocated funds to improve Flint’s
water quality, appointed a Flint Water Advisory Task Force, and ultimately reconnected to
the Detroit water system.
38
For example, the high incidence of Legionnaires’ disease was, at first, only noted as
having a “possible connection to [the] water supply.” There was also disagreement among
experts regarding the quality of the water. After Agent Miguel Del Toral of the
Environmental Protection Agency (EPA) prepared a memorandum stating that there were
high levels of lead, EPA Region 5 Director Dr. Susan Hedman told Mayor Dwayne Walling
that “what he was given was a preliminary draft [of the memorandum] and that it would be
premature to draw any conclusions based on that draft.” Specifically regarding studies of
blood lead levels in children, plaintiffs recount that though the Michigan Department of
Health and Human Services had data showing elevated blood lead levels, others at the
Childhood Lead Poisoning Prevention Program disputed that the water was the cause or
that there even were elevated blood lead levels. In sum, despite the various signs that the
water posed health risks, plaintiffs cite the Task Force Report, which recounts that there
were “repeated assurances that the water was safe.”
39
As to gathering information, plaintiffs note that in January 2015, “[s]taff from Genesee
County hospitals, [the Michigan Department of Health and Human Services (MDHHS)],
[the Michigan Department of Environmental Quality (MDEQ)] and [the Genesee County
Health Department (GCHD)] [met], and MDHHS Director Nick Lyon direct[ed] GCHD to
conduct and complete its evaluation of the causes of the increased Legionellosis cases that
had begun to occur in 2014.” And on January 30, 2015, “Brad Wurfel/MDEQ e-mail[ed]
Dave Murray, Governor Snyder’s deputy press secretary, re: Legionella, saying said [sic]
he didn’t want MDEQ Director Wyant ‘to say publicly that the water in Flint is safe until
we get the results of some county health department traceback work on 42 cases of
Legionellosis disease in Genesee County since last May.’ ”
22
While hindsight shows that defendants’ decision to switch Flint’s water source has
had tragic consequences, I do not believe that plaintiffs have shown that defendants were
deliberately indifferent in their decision to supply Flint residents with an alternative water
source.40 While defendants may have failed to perceive “a significant risk that [they]
should have perceived,” that does not constitute deliberate indifference.41 Consequently,
while it is clear that mistakes were made, I do not believe that plaintiffs have alleged actions
on the part of defendants that surmount the high bar of conscience-shocking behavior.42
In sum, even if there were a substantive due-process right to bodily integrity, I do
not believe that plaintiffs have alleged the facts necessary to show either that defendants
interfered with a deeply rooted right or that defendants’ conduct was conscience-
shocking.43 I would reverse the Court of Appeals and grant defendants’ motion for
summary disposition regarding plaintiffs’ substantive due-process claim alleging a
violation of their right to bodily integrity.
40
Votta, 600 F Appx at 18.
41
Farmer, 511 U.S. at 838.
42
Judge McKeague reached the same conclusion regarding the plaintiffs’ allegations in
Guertin. Guertin, 912 F3d at 947 (McKeague, J., concurring in part and dissenting in part)
(“[T]he conduct alleged fails to meet the ‘high’ conscience-shocking standard.”).
43
In light of my conclusion that plaintiffs failed to allege a claim for a violation of
substantive due process because the right they assert is not deeply rooted in our nation’s
history and they have not alleged conscience-shocking conduct on behalf of defendants, I
need not reach the issue whether defendants acted pursuant to a custom or policy.
23
II. THE AVAILABILITY OF A DAMAGES REMEDY UNDER SMITH v
DEPARTMENT OF PUBLIC HEALTH44
Even if substantive due process did encompass a right not to be exposed to
contaminated water, I would conclude that there is no damages remedy for such a
constitutional violation. There are two reasons why I would reach this conclusion. First,
even if Smith v Dep’t of Pub Health applies, the factors Justice BOYLE lists in her partial
concurrence weigh against creation of a claim for damages. Second, I have doubts about
whether Smith was correctly decided and, in any event, whether it should be extended.
A. THERE IS NO DAMAGES REMEDY UNDER SMITH
As the lead opinion recognizes, in Smith v Dep’t of Pub Health, the Court held that
“[a] claim for damages against the state arising from violation by the state of the Michigan
Constitution may be recognized in appropriate cases.”45 Smith consolidated two cases,
Smith v Michigan46 and Will v Dep’t of Civil Serv.47 In Smith, the plaintiff was living at a
state orphanage when the superintendent of his school, mistakenly believing that the
44
Smith & H. v Dep’t of Pub Health, 428 Mich. 540; 410 NW2d 749 (1987).
45
Id. at 544. Smith addressed several issues—namely, “(1) whether the state is a ‘person’
for purposes of a damage suit under 42 USC 1983; (2) whether a state official, sued in an
official capacity, is a ‘person’ for purposes of a damage suit under 42 USC 1983; (3)
whether there is an ‘intentional tort’ exception to governmental immunity; and (4) whether
a plaintiff may sue the state for damages for violations of the Michigan Constitution.” Id.
But I focus only on the latter issue and the related holding above.
46
Smith & H. v Michigan, 122 Mich. App. 340; 333 NW2d 50 (1983).
47
Will v Dep’t of Civil Serv, 145 Mich. App. 214; 377 NW2d 826 (1985).
24
plaintiff had a mental disability, had him transferred to an institution for people with mental
disabilities.48 The plaintiff lived there for 38 years. He then filed a complaint claiming, in
relevant part, that the Department of Health and Human Services had violated his due-
process and equal-protection rights under the state Constitution by improperly committing
him to the institution.49 In Will, the plaintiff was a state employee who had sought to be
promoted to a data systems analyst. He was rejected for the position when the defendant,
the Department of State Police, learned of his brother’s political activities.50 The plaintiff
sued, claiming that the defendant’s refusal to promote him based on his brother’s political
activities violated his due-process rights.51
Smith was a fractured decision with four different opinions.52 Justice BOYLE put
forward the following factors to determine whether courts should infer a damages remedy:
48
Smith, 428 Mich. at 550 (opinion by BRICKLEY, J.).
49
Id. at 551.
50
Id. at 546.
51
Id. at 547.
52
Justice BRICKLEY, joined by Justice RILEY, “decline[d] to infer any right to sue the state
for damages on the basis of violations” that the plaintiff in Smith alleged. Id. at 612-613
(opinion by BRICKLEY, J.). Justice BOYLE, joined by Justice CAVANAGH, concurred in part
and dissented in part. Justice BOYLE said that she would remand the Court of Appeals
decision in Smith to the Court of Claims for further proceedings, namely, to determine
whether the constitutional violation occurred by virtue of a governmental custom or policy
and, if so, whether there would be a damages remedy for such a violation. Id. at 652
(BOYLE, J., concurring in part and dissenting in part). She proceeded to explain that “[w]e
would recognize the propriety of an inferred damage remedy arising directly from
violations of the Michigan Constitution in certain cases.” Id. at 647. Justice ARCHER,
joined by Justice LEVIN, dissented on other grounds not relevant to the purposes of this
25
(1) the existence and clarity of the constitutional violation itself, (2) the degree of
specificity of the constitutional protection, (3) support for the propriety of a judicially
inferred damages remedy in any “text, history, and previous interpretations of the specific
provision,” (4) “the availability of another remedy,” and (5) “various other factors”
militating against a judicially inferred damages remedy.53
These factors weigh against inferring a damages remedy in this case. First, as
explained above, I do not believe that there is a constitutional violation. However, even if
there were a clear constitutional violation, the other factors weigh against the creation of a
damages remedy. Second, as even the Court of Appeals majority noted, the degree of
specificity in the constitutional protection weighs against an inferred damages remedy. As
stated, plaintiffs bring a substantive due-process claim under Const 1963, art 1, § 17, our
Constitution’s parallel provision to the Fourteenth Amendment. But both Justice
BRICKLEY and Justice BOYLE noted that Fourteenth Amendment violations are particularly
unsuitable for courts to infer a cause of action for damages. Justice BRICKLEY counseled
statement, but he agreed with Justice BOYLE’s remand to the Court of Claims. Id. at 654-
655 (ARCHER, J., dissenting). Justice LEVIN also agreed with Justice ARCHER and
concurred in the remand. Id. at 652 (LEVIN, J., concurring). Justice GRIFFIN did not
participate.
53
See id. at 648-652 (BOYLE, J., concurring in part and dissenting in part). I point out that
the Court of Appeals listed the final factors as “ ʻvarious other factors’ militating for or
against a judicially inferred damage remedy.” Mays, 323 Mich. App. at 66. But Justice
BOYLE instructed courts to consider “various other factors, dependent upon the specific
facts and circumstances of a given case, [that] may militate against a judicially inferred
damage remedy for violation of a specific constitutional provision.” Smith, 428 Mich. at
651 (BOYLE, J., concurring in part and dissenting in part).
26
against creating a damages remedy for such a violation, remarking that “the Supreme Court
has never extended the reasoning of Bivens[54] to violations of the Fourteenth Amendment,
and, as Justice Harlan noted in his concurrence in Bivens, the appropriateness of money
damages for other types of constitutionally protected interests might ‘well vary with the
nature of the personal interest asserted.’ ”55 Justice BOYLE also noted: “Other concerns,
such as the degree of specificity of the constitutional protection, should also be considered.
For example, there was no question in Bivens . . . that the defendants had violated the
warrant requirements of the Fourth Amendment. These search and seizure protections are,
however, relatively clear-cut in comparison to the Due Process and Equal Protection
Clauses.”56
Third, nothing in the “text, history, and previous interpretations” indicates that there
should be a damages remedy here.57 If anything, that previous interpretations have noted
54
Bivens v Six Unknown Fed Bureau of Narcotics Agents, 403 U.S. 388; 91 S. Ct. 1999; 29
L. Ed. 2d 619 (1971).
55
Smith, 428 Mich. at 628 (opinion by BRICKLEY, J.). See also id. at 629-630 (“Therefore,
the Supreme Court’s hesitation to recognize a Bivens-style remedy for violations of the
Fourteenth Amendment of the federal constitution suggests caution in recognizing such a
novel theory of recovery in our jurisprudence.”).
56
Id. at 651 (BOYLE, J., concurring in part and dissenting in part).
57
Regarding text, this Court and the Court of Appeals have declined to recognize an
implied cause of action for damages for a violation of the Equal Protection Clause, Const
1963, art 1, § 2, based on the specific language of that provision. Cremonte v Mich State
Police, 232 Mich. App. 240, 252; 591 NW2d 261 (1998) (determining that there is no such
cause of action because the Equal Protection Clause, Const 1963, art 1, § 2, states that it
shall be implemented by the Legislature); Lewis v Michigan, 464 Mich. 781, 789; 629
NW2d 868 (2001) (“Given the language of the Michigan Constitution, we hold in this case
27
there are few “ ‘guideposts for responsible decisionmaking’ ” in the realm of substantive
due process indicates that courts should not infer a damages remedy.58
Fourth, I agree with the lead opinion that it is uncertain whether plaintiffs have
alternative remedies at this point, and therefore, this factor is neutral. As Justice
BERNSTEIN points out, the state defendants generally have both statutory immunity and
Eleventh Amendment immunity. Though plaintiffs seek injunctive relief as well as
compensatory and punitive damages against several of the named defendants in a related
federal-court action, it is uncertain whether those remedies are available.59 Moreover, the
that we are without proper authority to recognize a cause of action for money damages or
other compensatory relief for past violations of Const 1963, art 1, § 2.”). There is no such
language in Const 1963, art 1, § 17.
Regarding history, our state’s Constitution has guaranteed due process since the
1850 Constitution. Const 1908, art 2, § 16 (“No person shall be compelled in any criminal
case to be witness against himself, nor be deprived of life, liberty or property, without due
process of law.”); Const 1850, art 6, § 32 (“No person shall be compelled, in any criminal
case, to be a witness against himself, nor be deprived of life, liberty or property, without
due process of law.”). When considering whether to add language guaranteeing that no
“ ‘person be held to answer for a criminal offence unless on the presentment or indictment
of a grand jury,’ ” Mr. S. Clark referred to the Due Process Clause, noting that the language
came from the Magna Carta. Report of the Proceedings and Debates in the Convention to
Revise the Constitution of the State of Michigan, 1850 (Lansing: R W Ingals, 1850),
pp 192-195. But this, of course, does not favor creating or not creating a damages remedy.
58
Sierb, 456 Mich. at 528, quoting Collins, 503 U.S. at 125.
59
Though I point out that in In re Flint Water Cases, 960 F3d 303, 325 (CA 6, 2020), a
case involving some of the same plaintiffs here, the United States Court of Appeals for the
Sixth Circuit has recently denied several defendants’ motions to dismiss, including those
of Darnell Earley and Jerry Ambrose, id. at 325, and former Governor Snyder, id. at 332.
The Sixth Circuit also determined that Flint could not claim Eleventh Amendment
immunity. However, the case is still at a relatively early stage, and the Sixth Circuit did
not rule out that certain defendants might be immune in the future. See, e.g., id. at 324
28
rights and protections of the federal Safe Drinking Water Act (SDWA), 42 USC 300f et
seq., and the Michigan Safe Drinking Water Act, MCL 325.1001 et seq., “are
not . . . wholly congruent” with the constitutional rights and protections plaintiffs now
allege.60 Therefore, I agree that this factor is neutral, at least at this time.
Finally, I see no “various other factors,” outside of those mentioned above, that
militate against an inferred cause of action for damages.61 In sum, the first, second, and
third factors weigh against inferring a cause of action for damages, and the other factors
(“Some judges of this court have even noted that, because the facts at this stage are yet
undeveloped, ‘it is generally inappropriate for a district court to grant a 12(b)(6) motion to
dismiss on the basis of qualified immunity. Although an officer’s entitlement to qualified
immunity is a threshold question to be resolved at the earliest possible point, that point is
usually summary judgment and not dismissal under Rule 12.’ ”), quoting Wesley v
Campbell, 779 F3d 421, 433-434 (CA 6, 2015). Thus, it appears that plaintiffs’ federal
case might provide an alternative remedy, which would weigh against the creation of a
cause of action for damages in this case.
60
See Boler v Earley, 865 F3d 391, 408-409 (CA 6, 2017) (noting that the SDWA
protections are not “ ‘wholly congruent’ ” with the federal constitutional protections)
(citation omitted).
61
The Court of Appeals noted “ ‘the degree of outrageousness of the state actors’ conduct
as alleged by plaintiffs . . . .’ ” Mays, 323 Mich. App. at 72 (citation omitted). However, as
stated above, I do not believe that Justice BOYLE opined that courts should take into account
other factors weighing in favor of inferring a damages remedy. I recognize that Justice
BOYLE’s multifactor test is not binding. But even still, I do not believe that, for purposes
of determining whether to infer a damages remedy, it is appropriate to consider the degree
of outrageousness of the conduct plaintiffs allege. None of the other factors relates to the
particular facts at issue; instead, the focus of the analysis is on the nature of the
constitutional right at issue, whether it was clearly violated, whether there is any historical
support for a damages remedy, and whether another remedy is available. Focusing on the
egregiousness of the facts alleged would change the nature of the inquiry and lead to
arbitrary outcomes.
29
are, at best, neutral. Considering all the above factors, I believe it is clear that courts should
not infer a damages remedy for plaintiffs’ claim of a violation of their right to bodily
integrity under the Due Process Clause.
B. THE CONTINUING VIABILITY OF SMITH
While I would not recognize a claim for damages here for the reasons stated above,
I would also be hesitant to do so in future cases, because I have serious doubts regarding
whether Smith was correctly decided.62 As previously explained, there are four opinions
in Smith. Two of the opinions, Justice BRICKLEY’s and Justice BOYLE’s, explicitly rely on
Bivens.63 Four Justices—Justice BOYLE, Justice RILEY, Justice LEVIN, and Justice
ARCHER—voted to remand Smith v Michigan64 to the Court of Claims for that court to
determine whether there would be a damages remedy for the constitutional violation.65
62
Smith, 428 Mich. at 544.
63
Bivens, 403 U.S. 388.
64
Smith, 122 Mich. App. 340.
65
The plaintiff in Will had failed to preserve his claim, and the Court voted to reverse that
portion of the Court of Appeals judgment that remanded Will to the Court of Claims for
further proceedings regarding the liability of the Director of the State Police. Smith, 428
Mich. at 544-545. Chief Justice MCCORMACK asserts that “it is not at all clear that the
relevant holding of Smith is at all or exclusively based on Bivens.” Smith is certainly an
odd decision, since the Court’s opinion was issued as a memorandum opinion consisting
only of the issues presented, the Court’s holdings, and its disposition of the case. Standing
alone, that opinion would appear to lack any substantive legal effect because it violates
Const 1963, art 6, § 6, which states that “[d]ecisions of the supreme court . . . shall be in
writing and shall contain a concise statement of the facts and reasons for each
decision . . . .” See DeFrain v State Farm Mut Auto Ins Co, 491 Mich. 359, 369; 817 NW2d
504 (2012). However, I think it is clearly apparent from the separate opinions in Smith that
the Court’s holding was based on Bivens. Justice BRICKLEY’s opinion, which was joined
30
In Bivens, the United States Supreme Court considered “whether violation of [the
Fourth Amendment] by a federal agent acting under color of his authority gives rise to a
cause of action for damages consequent upon his unconstitutional conduct.”66 The Court
held that it did.67 The petitioner in Bivens complained, in relevant part, that federal officers
had violated the Fourth Amendment by searching his apartment without a warrant.68 The
respondents argued that the petitioner could only obtain monetary damages under state tort
law. But the Court rejected this argument. First, the Court noted that the Fourth
Amendment did not preclude only conduct that would be illegal under state law if done by
private persons.69 Second, “[t]he interests protected by state laws . . . , and those protected
by the Fourth Amendment’s guarantee against unreasonable searches and seizures, may be
by Justice RILEY, discussed Bivens and its progeny at length, Smith, 428 Mich. at 613-626
(opinion by BRICKLEY, J.), though it declined to recognize a damages remedy in either of
the cases before the Court, id. at 626. Justice BOYLE’s partial concurrence, which was
joined by Justice CAVANAGH, also very clearly relied on Bivens to support the conclusion
that damages were possible and that Smith should be remanded to determine whether such
a remedy was proper. Id. at 645-648 (BOYLE, J., concurring in part and dissenting in part).
In other words, four of the six justices explicitly considered Bivens. Though Justice
ARCHER and Justice LEVIN wrote separate opinions, they concurred in Justice BOYLE’s
remand, id. at 652 (opinion by LEVIN, J.); id. at 658 (ARCHER, J., dissenting), and,
presumably, her discussion of Bivens since the opinion did not provide any other rationale
in support of Justice BOYLE’s remand.
66
Bivens, 403 U.S. at 389.
67
Id.
68
Id.
69
Id. at 392.
31
inconsistent or even hostile.”70 Third, damages are considered an ordinary remedy, so
allowing damages for a Fourth Amendment violation was “hardly . . . a surprising
proposition.”71 In sum, the Court concluded that the petitioner had stated a cause of action
and that he was “entitled to recover money damages for any injuries he has suffered as a
result of the agents’ violation of the Amendment.”72
But Bivens was criticized from the outset as posing separation-of-powers
concerns.73 Justice Rehnquist strongly voiced these concerns regarding Bivens in his
dissent in Carlson v Green:
70
Id. at 394.
71
Id. at 395.
72
Id. at 397. Chief Justice MCCORMACK states that “[t]he Supreme Court has a long history
of permitting suits for damages against rogue federal officers.” However, the cases she
cites are not examples of courts awarding damages for constitutional violations but rather
involve common-law tort and statutory violations. Fallon, Bidding Farewell to
Constitutional Torts, 107 Calif L Rev 933, 943 (2019) (discussing Little v Barreme, 6 US
(2 Cranch) 170; 2 L. Ed. 243 (1804), and noting that “Barreme sought to recover by bringing
a common law trespass action”); Murray v Schooner Charming Betsy, 6 US (2 Cranch) 64,
64-65; 2 L. Ed. 208 (1804) (“An American vessel . . . was not liable to seizure under the
non-intercourse law of 27th of February 1800. If there was no reasonable ground of
suspicion that she was a vessel trading contrary to that law, the commander of a United
States ship of war, who seizes and sends her in, is liable for damages.”). Indeed, it is
undisputed that Bivens broke new ground in inferring causes of action for damages for
constitutional violations. See Bell v Hood, 327 U.S. 678, 684; 66 S. Ct. 773; 90 L. Ed. 939
(1946) (noting that the issue “whether federal courts can grant money recovery for damages
said to have been suffered as a result of federal officers violating the Fourth and Fifth
Amendments . . . has never been specifically decided by this Court”). And, not
surprisingly, I am unaware of any binding precedent from our Court or the Court of Appeals
implying a cause of action for damages for state constitutional violations prior to Smith.
73
Bivens, 403 U.S. at 411-412 (Burger, C.J., dissenting) (“We would more surely preserve
the important values of the doctrine of separation of powers—and perhaps get a better
32
Although ordinarily this Court should exercise judicial restraint in attempting
to attain a wise accommodation between liberty and order under the
Constitution, to dispose of this case as if Bivens were rightly decided would
in the words of Mr. Justice Frankfurter be to start with an “unreality.” Bivens
is a decision “by a closely divided court, unsupported by the confirmation of
time,” and, as a result of its weak precedential and doctrinal foundation, it
cannot be viewed as a check on “the living process of striking a wise balance
between liberty and order as new cases come here for adjudication.”
* * *
In my view, it is “an exercise of power that the Constitution does not
give us” for this Court to infer a private civil damages remedy from the
Eighth Amendment or any other constitutional provision. The creation of
such remedies is a task that is more appropriately viewed as falling within
the legislative sphere of authority.
* * *
result—by recommending a solution to the Congress as the branch of government in which
the Constitution has vested the legislative power. Legislation is the business of the
Congress, and it has the facilities and competence for that task—as we do not.”); id. at 427-
428 (Black, J., dissenting) (“There can be no doubt that Congress could create a federal
cause of action for damages for an unreasonable search in violation of the Fourth
Amendment. Although Congress has created such a federal cause of action against state
officials acting under color of state law [in 42 USC 1983], it has never created such a cause
of action against federal officials. If it wanted to do so, Congress could, of course, create
a remedy against federal officials who violate the Fourth Amendment in the performance
of their duties. But the point of this case and the fatal weakness in the Court’s judgment is
that neither Congress nor the State of New York has enacted legislation creating such a
right of action. For us to do so is, in my judgment, an exercise of power that the
Constitution does not give us.”); id. at 430 (Blackmun, J., dissenting) (referring to the
majority opinion as “judicial legislation”). See also Chemerinsky, Federal Jurisdiction (7th
ed), § 9.1.2, p 652 (discussing whether Bivens offends separation-of-powers principles).
See generally Jellum, “Which Is to Be Master,” the Judiciary or the Legislature? When
Statutory Directives Violate Separation of Powers, 56 UCLA L Rev 837, 865 (2009)
(“Thus, legislative acts—enacting, amending, and repealing statutes—are those acts that
alter the rights, duties, or responsibilities of those outside the legislature. When a branch
other than Congress . . . legislates, that branch violates formalist separation of powers.”).
33
. . . [C]ongressional authority here may all too easily be undermined
when the judiciary, under the guise of exercising its authority to fashion
appropriate relief, creates expansive damages remedies that have not been
authorized by Congress. Just as there are some tasks that Congress may not
impose on an Art. III court, there are others that an Art. III court may not
simply seize for itself without congressional authorization.[74]
More recently, the United States Supreme Court has recognized these separation-
of-powers concerns while noting that it is generally up to Congress to create a cause of
action for a constitutional violation.
When a party seeks to assert an implied cause of action under the
Constitution itself, just as when a party seeks to assert an implied cause of
action under a federal statute, separation-of-powers principles are or should
be central to the analysis. The question is “who should decide” whether to
provide for a damages remedy, Congress or the courts?
The answer most often will be Congress. When an issue “ ‘involves
a host of considerations that must be weighed and appraised,’ ” it should be
committed to “ ‘those who write the laws’ ” rather than “ ‘those who interpret
them.’ ”[75]
Moreover, when Bivens was decided, the United States Supreme Court was willing
to create causes of action in the statutory context. Bivens went further by allowing courts
to create causes of action in the constitutional context. But in Alexander v Sandoval,76 the
Court definitively signaled that it would no longer create such causes of action in the
74
Carlson v Green, 446 U.S. 14, 32, 34, 37; 100 S. Ct. 1468; 64 L. Ed. 2d 15 (1980) (Rehnquist,
J., dissenting) (citations omitted).
75
Ziglar v Abbasi, 582 US ___, ___; 137 S. Ct. 1843, 1857; 198 L. Ed. 2d 290 (2017)
(citations omitted).
76
Alexander v Sandoval, 532 U.S. 275; 121 S. Ct. 1511; 149 L. Ed. 2d 517 (2001).
34
statutory context, saying, “[P]rivate rights of action to enforce federal law must be created
by Congress.”77 Justice Scalia, joined by Justice Thomas, explained the implications of
this new refusal to create statutory causes of action for Bivens:
Bivens is a relic of the heady days in which this Court assumed common-law
powers to create causes of action—decreeing them to be “implied” by the
mere existence of a statutory or constitutional prohibition. As the Court
points out, we have abandoned that power to invent “implications” in the
statutory field. There is even greater reason to abandon it in the constitutional
field, since an “implication” imagined in the Constitution can presumably
not even be repudiated by Congress.[78]
77
Id. at 286. See also Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child
Dev Bd, 472 Mich. 479, 496-497; 697 NW2d 871 (2005) (“Although the United States
Supreme Court in the last century embraced a short-lived willingness to create remedies to
enforce private rights, the Court ‘abandoned’ that approach to statutory remedies in Cort v
Ash[, 422 U.S. 66; 95 S. Ct. 2080; 45 L. Ed. 2d 26 (1975),] and ‘[has] not returned to it
since.’ ”) (citations omitted); Office Planning Group, 472 Mich. at 496-500 (explaining that
Cort set forth a test for determining whether a court may imply a cause of action from a
statute and stating that since “Alexander, the Court appears to have abandoned the Cort
inquiry altogether in favor of a completely textual analysis in determining whether a private
remedy exists under a particular statute”); Hernandez v Mesa, 589 US ___, ___; 140 S. Ct.
735, 750-751; 206 L. Ed. 2d 29 (2020) (Thomas, J., concurring) (“In the decade preceding
Bivens, the Court believed that it had a duty ‘to be alert to provide such remedies as are
necessary to make effective’ Congress’ purposes in enacting a statute. Accordingly, the
Court freely created implied private causes of action for damages under federal statutes.
This misguided approach to implied causes of action in the statutory context formed the
backdrop of the Court’s decision in Bivens. . . . The Court, however, eventually corrected
course. In the statutory context, the Court ‘retreated from [its] previous willingness to
imply a cause of action where Congress has not provided one.’ ”) (citations omitted).
78
Correctional Servs Corp v Malesko, 534 U.S. 61, 75; 122 S. Ct. 515; 151 L. Ed. 2d 456
(2001) (Scalia, J., concurring) (citations omitted).
35
Perhaps because of its shaky grounding, the United States Supreme Court has only
recognized a Bivens-style remedy in two cases—Davis v Passman79 and Carlson.80 The
Court recently voiced its doubts regarding Bivens in Hernandez v Mesa,81 stating as
follows:
We have stated that expansion of Bivens is “a ‘disfavored’ judicial activity,”
and have gone so far as to observe that if “the Court’s three Bivens cases
[had] been . . . decided today,” it is doubtful that we would have reached the
same result. And for almost 40 years, we have consistently rebuffed requests
to add to the claims allowed under Bivens.[82]
79
Davis v Passman, 442 U.S. 228; 99 S. Ct. 2264; 60 L. Ed. 2d 846 (1979).
80
Carlson, 446 U.S. 14. See also Correctional Servs Corp, 534 U.S. at 70 (“In 30 years of
Bivens jurisprudence we have extended its holding only twice, to provide an otherwise
nonexistent cause of action against individual officers alleged to have acted
unconstitutionally,” i.e., Carlson, “or to provide a cause of action for a plaintiff who lacked
any alternative remedy for harms caused by an individual officer’s unconstitutional
conduct,” i.e., Davis. “Where such circumstances are not present, we have consistently
rejected invitations to extend Bivens, often for reasons that foreclose its extension here.”).
Though lower federal courts have often refused to extend Bivens, see, e.g., Turpin
v Mailet, 591 F2d 426, 427 (CA 2, 1979); Arar v Ashcroft, 585 F3d 559, 581 (CA 2, 2009);
De La Paz v Coy, 786 F3d 367, 375 (CA 5, 2015); Vanderklok v United States, 868 F3d
189, 209 (CA 3, 2017); Tun-Cos v Perrotte, 922 F3d 514, 517-518 (CA 4, 2019), some
lower federal courts have extended Bivens, see Chemerinsky, § 9.1.2, p 651 (“Lower
federal courts have recognized Bivens suits for violations of the First, Fourth, Fifth, Eighth,
Ninth, and Fourteenth Amendments.”) (citations omitted).
81
Hernandez v Mesa, 589 US ___; 140 S. Ct. 735; 206 L. Ed. 2d 29 (2020).
82
Id. at 742-743 (citations omitted). See also Ziglar, 582 US at ___; 137 S. Ct. at 1857
(“Given the notable change in the Court’s approach to recognizing implied causes of
action, however, the Court has made clear that expanding the Bivens remedy is now a
‘disfavored’ judicial activity. This is in accord with the Court’s observation that it has
‘consistently refused to extend Bivens to any new context or new category of defendants.’
Indeed, the Court has refused to do so for the past 30 years.”) (citations omitted);
36
Relatedly, some justices have called for Bivens not to be extended in future cases.
For example, Justice Scalia stated that he “would limit Bivens and its two follow-on cases
([Davis] and [Carlson]) to the precise circumstances that they involved.”83 Justice
Thomas, joined by Justice Gorsuch, has gone even further and called for Bivens to be
overturned:
I write separately because, in my view, the time has come to consider
discarding the Bivens doctrine altogether. The foundation for Bivens—the
practice of creating implied causes of action in the statutory context—has
already been abandoned. And the Court has consistently refused to extend
the Bivens doctrine for nearly 40 years, even going so far as to suggest that
Bivens and its progeny were wrongly decided. Stare decisis provides no
“veneer of respectability to our continued application of [these]
demonstrably incorrect precedents.” To ensure that we are not
“perpetuat[ing] a usurpation of the legislative power,” we should reevaluate
our continued recognition of even a limited form of the Bivens doctrine.[84]
I agree with the persistent criticism of Bivens. In light of the United States Supreme
Court’s rejection of implied causes of action in the statutory context, it makes little sense
to continue implying them in the constitutional context. Doing so raises serious separation-
Ashcroft v Iqbal, 556 U.S. 662, 675; 129 S. Ct. 1937; 173 L. Ed. 2d 868 (2009) (“Because
implied causes of action are disfavored, the Court has been reluctant to extend Bivens
liability ‘to any new context or new category of defendants.’ ”) (citation omitted).
83
Correctional Servs Corp, 534 U.S. at 75 (Scalia, J., concurring). See also Minneci v
Pollard, 565 U.S. 118, 131; 132 S. Ct. 617; 181 L. Ed. 2d 606 (2012) (Scalia, J., concurring);
Wilkie v Robbins, 551 U.S. 537, 568; 127 S. Ct. 2588; 168 L. Ed. 2d 389 (2007) (Thomas, J.,
concurring) (“I write separately because I would not extend Bivens even if its reasoning
logically applied to this case.”).
84
Hernandez, 589 US at ___; 140 S. Ct. at 750 (Thomas, J., concurring) (citations omitted).
37
of-powers concerns. Supporters of Bivens argue that its remedy is constitutionally required
“in the sense that no other remedial scheme could possibly prevent the substantive
constitutional requirements from becoming a ‘mere form of words . . . .’ ”85 However, I
am skeptical that such a remedy is required when the text of neither the United States nor
the Michigan Constitution mentions it. Rather, both Constitutions vest their respective
legislative branches with the legislative power.86 This power encompasses the power to
create causes of action.87 While there may be a narrow category of cases for which there
is no state tort law cause of action and for which damages appear to be the only effective
remedy, I am skeptical that these practical concerns justify allowing the courts to exercise
the legislative power by implying causes of action when the Legislature has not seen fit to
create a statutory cause of action.88
85
Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv L Rev 1532,
1548-1549 (1972), quoting Mapp v Ohio, 367 U.S. 643, 655; 81 S. Ct. 1684; 6 L. Ed. 2d 1081
(1961). See also Steinman, Backing Off Bivens and the Ramifications of This Retreat for
the Vindication of First Amendment Rights, 83 Mich. L Rev 269 (1984).
86
US Const, art I, § 1 (“All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and House of Representatives.”); Const
1963, art 4, § 1 (“Except to the extent limited or abrogated by article IV, section 6 or article
V, section 2, the legislative power of the State of Michigan is vested in a senate and a house
of representatives.”).
87
See Mintz v Jacob, 163 Mich. 280, 283; 128 N.W. 211 (1910).
88
Cooley, Constitutional Limitations (5th ed), pp 86-87 n 3 (“ ‘It is highly probable that
inconveniences will result from following the Constitution as it is written. But that
consideration can have no force with me. . . . I have never yielded to considerations of
expediency in expounding it [i.e., the fundamental law]. There is always some plausible
38
The critiques of Bivens apply equally to Smith. By holding, as Bivens did, that courts
may imply a cause of action for damages from violation of a constitutional provision, Smith
poses the same separation-of-powers concerns that Bivens does. The United States
Supreme Court’s abandonment of implied causes of action in the statutory context has cast
doubt on Bivens, which, in turn, undermines our reliance on that case in Smith.89 Perhaps
reason for latitudinarian constructions . . . .’ ”), quoting Oakley v Aspinwall, 3 NY 547, 568
(1850).
In addition to the separation-of-powers concerns, I believe that there are practical
problems with charging courts with deciding when to extend Bivens as well. As Justice
Rehnquist explained:
Because the judgments that must be made here involve many “competing
policies, goals, and priorities” that are not well suited for evaluation by the
Judicial Branch, in my view “[t]he task of evaluating the pros and cons of
creating judicial remedies for particular wrongs is a matter for Congress and
the legislatures of the States.” [Carlson, 446 U.S. at 36 (Rehnquist, J.,
dissenting) (citation omitted).]
89
Like the United States Supreme Court, our Court has declined in recent decades to imply
statutory causes of action. In B F Farnell Co v Monahan, 377 Mich. 552, 555-556; 141
NW2d 58 (1966), this Court noted the “ ‘general rule’ ” that there would be a private cause
of action under a statute: “ ‘where a statute imposes upon any person a specific duty for
the protection or benefit of others, if he neglects or refuses to perform such duty, he is liable
for any injury or detriment caused by such neglect or refusal, if such injury or hurt is of the
kind which the statute was intended to prevent; nor is it necessary in such a case as this to
declare upon or refer to the statute.’ ” (Citation omitted.) In Pompey v Gen Motors Corp,
385 Mich. 537, 552; 189 NW2d 243 (1971), though the Court recognized “[t]he general
rule . . . that where a new right is created or a new duty is imposed by statute, the remedy
provided for enforcement of that right by the statute for its violation and nonperformance
is exclusive,” the Court noted “two important qualifications to this rule of statutory
construction: In the absence of a pre-existent common law remedy, the statutory remedy is
not deemed exclusive if such remedy is plainly inadequate, or unless a contrary intent
clearly appears,” id. at 552 n 14 (citations omitted). Later, the Court set forth a test to
determine whether to create a new cause of action. Gardner v Wood, 429 Mich. 290, 302;
39
414 NW2d 706 (1987) (“In the interest of public policy, this Court has created a new cause
of action to redress the violation of a penal statute and, pursuant to the following test,
incorporated the statute as the specific standard of care: ‘The court may adopt as the
standard conduct of a reasonable man the requirements of a legislative enactment or an
administrative regulation whose purpose is found to be exclusively or in part (a) to protect
a class of persons which includes the one whose interest is invaded, and (b) to protect the
particular interest which is invaded, and (c) to protect that interest against the kind of harm
which has resulted, and (d) to protect that interest against the particular hazard from which
the harm results.’ ”) (quotation marks and citation omitted).
However, the Court later disavowed Pompey’s two qualifications to the general rule
that when a statute creates a new duty or a new right, the statutory remedy is exclusive.
Lash v Traverse City, 479 Mich. 180, 192 n 19; 735 NW2d 628 (2007) (“We need not
address the dictum in the Pompey footnote that some quantum of additional remedy is
permitted where a statutory remedy is ‘plainly inadequate.’ We do note that this principle,
which has never since been cited in any majority opinion of this Court, appears inconsistent
with subsequent caselaw.”). Finally, though Lash, id. at 192-193, did cite the test from
Gardner, 429 Mich. at 302, to determine if the Court may create a new cause of action, only
a week before Lash was issued, the Court issued South Haven v Van Buren Co Bd of
Comm’rs, 478 Mich. 518; 734 NW2d 533 (2007). In that case, the Court reaffirmed the
more recent trend in our cases, which emphasizes that it is the Legislature’s intent and the
statutory language that control whether a party may pursue a particular remedy:
“It is well settled that when a statute provides a remedy, a court should
enforce the legislative remedy rather than one the court prefers.” To
determine whether a plaintiff may bring a cause of action for a specific
remedy, this Court “must determine whether [the Legislature] intended to
create such a cause of action.” “ ‘ “Where a statute gives new rights and
prescribes new remedies, such remedies must be strictly pursued; and a party
seeking a remedy under the act is confined to the remedy conferred thereby
and to that only.” ’ ” Accordingly, this Court has previously declined to
establish a remedy that the Legislature has not provided. [Id. at 528-529,
quoting Roberts v Mecosta Co Gen Hosp, 466 Mich. 57, 66 n 5; 642 NW2d
663 (2002); Office Planning Group, 472 Mich. at 496; McClements v Ford
Motor Co, 473 Mich. 373, 382; 702 NW2d 166 (2005), quoting Monroe
Beverage Co, Inc v Stroh Brewery Co, 454 Mich. 41, 45; 559 NW2d 297
(1997), in turn quoting Lafayette Transfer & Storage Co v Pub Utilities
Comm, 287 Mich. 488, 491; 283 N.W. 659 (1939).]
40
taking our cue from the United States Supreme Court,90 our Court has never extended
Smith, and the Court of Appeals has only done so in one other unpublished case.91
See also Mich Ass’n of Home Builders v City of Troy, 504 Mich. 204, 225; 934 NW2d 713
(2019) (citing Lash for the conclusion that though the plaintiffs could not bring a cause of
action for damages when the statute created a new right but did not provide an express
cause of action, the plaintiffs could seek injunctive or declaratory relief).
90
Chief Justice MCCORMACK argues that the fact that the United States Supreme Court
now looks askance at Bivens should not lead us to question Smith because “we are separate
sovereigns. We decide the meaning of the Michigan Constitution and do not take our cue
from any other court, including the highest Court in the land.” Of course, I agree that we
are separate sovereigns and that we alone are tasked with interpreting our Constitution.
However, it would hardly be a mark of our independence to continue to follow Bivens,
which, although it has been cabined, remains the governing federal precedent.
91
In Jo-Dan, Ltd v Detroit Bd of Ed, unpublished per curiam opinion of the Court of
Appeals, issued July 14, 2000 (Docket No. 201406), p 16, the Court of Appeals held, “If
the finder of fact in the trial court determines that a plaintiff sustained his, her, or its burden
of proving that the defendant violated the fair and just treatment clause, the full panoply of
remedies are available. Those remedies include, but are not limited to, monetary damages
when ‘appropriate’ according to Smith . . . .” But there, the Detroit Board of Education did
not argue that monetary damages were inappropriate. Id. at 16 n 13. And, of course, the
decision is unpublished, and therefore it is not precedentially binding. MCR 7.215(C)(1).
The Court of Appeals has repeatedly noted Smith’s holding that there may be an
implied cause of action for damages for state constitutional violations. In most cases,
findings that there was no constitutional violation, or that the violation did not occur as a
result of a custom or policy, have precluded the Court of Appeals from recognizing such a
cause of action. See, e.g., Champion’s Auto Ferry, Inc v Pub Serv Comm, 231 Mich. App.
699, 717; 588 NW2d 153 (1998) (citing Smith in support of the conclusion that “[i]f and
when [the plaintiff] can establish that its authorized rates are in fact confiscatory, it may
sue in the Court of Claims for just compensation on a theory of constitutional tort,” but
also stating that the plaintiff “ha[d] failed to establish that any . . . taking has occurred”);
see also Marlin v Detroit, 177 Mich. App. 108; 441 NW2d 45 (1989); Johnson v Wayne Co,
213 Mich. App. 143; 540 NW2d 66 (1995); Carlton v Dep’t of Corrections, 215 Mich. App.
490; 546 NW2d 671 (1996); Jones v Powell, 227 Mich. App. 662; 577 NW2d 130 (1998),
aff’d 462 Mich. 329 (2000); Reid v Michigan, 239 Mich. App. 621; 609 NW2d 215 (2000);
LM v Michigan, 307 Mich. App. 685; 862 NW2d 246 (2014). Before Smith was decided,
41
For these reasons, I believe that like Bivens, Smith’s holding that there may be an
implied claim for damages arising from a state constitutional violation raises serious
separation-of-powers concerns. Additionally, given the United States Supreme Court’s
recent refusal to imply causes of action in the statutory context, Bivens’s holding that such
causes of action may be implied in the constitutional context rests on shaky ground.
Consequently, and particularly in light of our Court’s similar trend, so does Smith’s. As a
result, I question whether Smith was correctly decided on this point, and I would be willing
to reconsider Smith in an appropriate future case. At a minimum, I believe that the Court
should carefully weigh these points before extending Smith to any further constitutional
violations.92
the Court of Appeals also relied on Bivens in Kewin v Melvindale Northern Allen Park Pub
Sch Bd of Ed, 65 Mich. App. 472; 237 NW2d 514 (1975), in which it recognized a damages
award for a violation of the Fourteenth Amendment. Though this decision is published, it
was issued prior to November 1, 1990, so it is not precedential. MCR 7.215(J)(1).
Other states remain split on whether to recognize a Bivens-style remedy for state
constitutional violations. See 74 Am Jur 2d, Torts (May 2020 update), § 44 (recounting
that some states allow an implied cause of action for unconstitutional searches, while others
do not). However, in recent years, state courts have recognized fewer Bivens-style
remedies. 75 ALR5th 619 lists 25 cases in which an implied cause of action was
recognized under an analogy to Bivens and 61 cases in which the cause of action was not
recognized. Every case decided after 2000 declined to recognize a Bivens-style remedy.
92
To be clear, limiting Smith to the due-process and equal-protection claims at issue in that
case would mean declining to recognize a claim for monetary damages under Const 1963,
art 1, § 11, our state Constitution’s parallel provision to the Fourth Amendment, even
though that would be similar to the type of claim recognized in Bivens itself.
42
III. CONCLUSION
I would reverse the Court of Appeals’ ruling on plaintiffs’ substantive due-process
claim for a violation of bodily integrity and would instead grant summary disposition in
favor of defendants. The right that plaintiffs claim—a right not to be exposed to
contaminated water—is not deeply rooted in our nation’s history and tradition, and
plaintiffs have not alleged conduct on behalf of defendants that shocks the conscience.
Even if plaintiffs had alleged a substantive due-process claim for a violation of bodily
integrity, under Smith there would be no damages remedy. Moreover, I have serious doubts
as to whether Smith was correct in holding that “[a] claim for damages against the state
arising from violation by the state of the Michigan Constitution may be recognized in
appropriate cases.”93 For this reason, I would be willing to reconsider Smith in an
appropriate future case. At a minimum, I believe the Court should carefully weigh the
above points before extending Smith to any further constitutional violations.
David F. Viviano
93
Smith, 428 Mich. at 544.
43
STATE OF MICHIGAN
SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157335-7
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v Nos. 157340-2
GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees,
and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants.
MARKMAN, J. (dissenting).
In response to the Flint water crisis, plaintiffs filed this putative class-action lawsuit
against former Governor Rick Snyder, the state of Michigan, the Michigan Department of
Environmental Quality (MDEQ), the Michigan Department of Health and Human Services
and former Flint emergency managers Darnell Earley and Jerry Ambrose. The complaint
alleged a violation of Const 1963, art 1, § 17 (substantive due-process right to bodily
integrity) and a violation of Const 1963, art 10, § 2 (inverse condemnation). The state
defendants and the former emergency managers separately moved for summary
disposition. The Court of Claims denied defendants’ motions for summary disposition on
those two claims, and in a published and split decision, the Court of Appeals affirmed.
Mays v Governor, 323 Mich. App. 1; 916 NW2d 227 (2018). This Court subsequently
granted leave to appeal, Mays v Governor, 503 Mich. 1030 (2019), and heard oral argument
on March 4, 2020. A majority of this Court now affirms the Court of Appeals’ conclusion
with regard to plaintiffs’ inverse-condemnation claim but affirms only by equal division
2
with regard to plaintiffs’ violation-of-bodily-integrity claim. Because I conclude that
plaintiffs failed to comply with MCL 600.6431(3), the notice provision of the Court of
Claims Act, MCL 600.6401 et seq., I would reverse the Court of Appeals and remand to
the Court of Claims for entry of an order disposing of all of plaintiffs’ claims and
dismissing the case.1
I. ANALYSIS
A. LEGAL BACKGROUND
MCL 600.6452 provides, in pertinent part:
(1) Every claim against the state, cognizable by the court of claims,
shall be forever barred unless the claim is filed with the clerk of the court or
suit instituted thereon in federal court as authorized in section 6440, within
3 years after the claim first accrues.
(2) Except as modified by this section, the provisions of [Revised
Judicature Act (RJA)] chapter 58, relative to the limitation of actions, shall
also be applicable to the limitation prescribed in this section.
MCL 600.6431 provides, in pertinent part:
(1) No claim may be maintained against the state unless the claimant,
within 1 year after such claim has accrued, files in the office of the clerk of
the court of claims either a written claim or a written notice of intention to
file a claim against the state or any of its departments, commissions, boards,
institutions, arms or agencies, stating the time when and the place where such
1
Justice BERNSTEIN is certainly correct that what occurred to the people of Flint was
appalling. But he is, with all respect, incorrect in his characterization of the instant analysis
as “highly legalistic.” Relevant law requires plaintiffs to “file with the clerk of the court
of claims a notice of intention to file a claim or the claim itself within 6 months following
the happening of the event giving rise to the cause of action,” MCL 600.6431(3), and
plaintiffs did not do this. Mine is a wholly legal, not a “legalistic,” analysis.
3
claim arose and in detail the nature of the same and of the items of damage
alleged or claimed to have been sustained, which claim or notice shall be
signed and verified by the claimant before an officer authorized to administer
oaths.
* * *
(3) In all actions for property damage or personal injuries, claimant
shall file with the clerk of the court of claims a notice of intention to file a
claim or the claim itself within 6 months following the happening of the event
giving rise to the cause of action.
And MCL 600.5855 of the RJA, MCL 600.101 et seq., provides:
If a person who is or may be liable for any claim fraudulently conceals
the existence of the claim or the identity of any person who is liable for the
claim from the knowledge of the person entitled to sue on the claim, the
action may be commenced at any time within 2 years after the person who is
entitled to bring the action discovers, or should have discovered, the
existence of the claim or the identity of the person who is liable for the claim,
although the action would otherwise be barred by the period of limitations.
Furthermore, MCL 600.5827 provides, in pertinent part, that “the claim accrues at
the time the wrong upon which the claim is based was done regardless of the time when
damage results.” “The wrong is done when the plaintiff is harmed rather than when the
defendant acted.” Boyle v Gen Motors Corp, 468 Mich. 226, 231 n 5; 661 NW2d 557
(2003). In other words, “the ‘wrong’ in MCL 600.5827 is the date on which the defendant’s
breach harmed the plaintiff, as opposed to the date on which defendant breached his duty.”
Frank v Linkner, 500 Mich. 133, 147; 894 NW2d 574 (2017) (quotation marks and citation
omitted). “The relevant ‘harms’ for that purpose are the actionable harms alleged in
plaintiff’s cause of action.” Id. at 150. “Additional damages resulting from the same harm
do not reset the accrual date or give rise to a new cause of action.” Id. at 155.
4
In Trentadue, 479 Mich. at 391-392, this Court held that “courts may not employ an
extrastatutory discovery rule to toll accrual in avoidance of the plain language of MCL
600.5827 . . . .” That is, Trentadue abrogated the common-law discovery rule, which had
“allow[ed] tolling of the statutory period of limitations when a plaintiff could not have
reasonably discovered the elements of a cause of action within the limitations period . . . .”
Id. at 382. Therefore, in the absence of an applicable statutory discovery rule, an action
accrues not when the plaintiff discovers the cause of action, but when the defendant’s
breach harmed the plaintiff. In other words, the period of limitations begins to run when a
plaintiff suffers harm, not when a plaintiff first learns of that harm. Trentadue declined the
plaintiff’s request to make an “equitable” exception on her behalf, explaining:
[I]f courts are free to cast aside a plain statute in the name of equity, even in
such a tragic case as this, then immeasurable damage will be caused to the
separation of powers mandated by our Constitution. Statutes lose their
meaning if an aggrieved party need only convince a willing judge to rewrite
the statute under the name of equity. Significantly, such unrestrained use of
equity also undermines consistency and predictability for plaintiffs and
defendants alike. [Id. at 406-407 (quotation marks and citations omitted).]
In Rowland v Washtenaw Co Rd Comm, 477 Mich. 197, 200, 213; 731 NW2d 41
(2007), this Court further held that failure to comply with the notice provision applicable
to the defective-highway exception to governmental immunity gives rise to a bar to claims
filed pursuant to the defective-highway exception, regardless of whether the governmental
agency suffered actual prejudice, because this Court lacks the authority to incorporate an
actual-prejudice requirement into the statute.
Similarly, in McCahan v Brennan, 492 Mich. 730, 733; 822 NW2d 747 (2012), we
held that the notice provision of the Court of Claims Act, MCL 600.6431, “must be
5
interpreted and enforced as plainly written and that no judicially created saving
construction is permitted to avoid a clear statutory mandate.” More specifically, we held
that “when the Legislature conditions the ability to pursue a claim against the state on a
plaintiff’s having filed specific statutory notice, the courts may not engraft an ‘actual
prejudice’ component onto the statute as a precondition to enforcing the legislative
prohibition.” Id. at 732-733. We further held that
MCL 600.6431(1) details the notice requirements that must be met in order
to pursue a claim against the state, including a general deadline of one year
after accrual of the claim. MCL 600.6431(3) then modifies only the deadline
requirement for a specific class of claims—those involving personal injury
or property damage—replacing the one-year deadline with a six-month
deadline. Thus, subsections (1) and (3) together provide that in all actions
for personal injuries, “[n]o claim may be maintained against the state” unless
the claimant files with the Clerk of the Court of Claims the required notice
of intent to file a claim or the claim itself within six months. [Id. at 744-745.]
That is, “the only substantive change effectuated in subsection (3) is a reduction in the
timing requirement for specifically designated cases.” Id. at 741.
In Bauserman v Unemployment Ins Agency, 503 Mich. 169, 173; 931 NW2d 539
(2019), this Court held that under MCL 600.6431(3), “the ‘happening of the event giving
rise to the cause of action’ for a claim seeking monetary relief is when the claim
accrues . . . .” We also held that “there is no meaningful distinction between ‘the
happening of the event giving rise to [a] cause of action’ seeking monetary relief under
MCL 600.6431(3) and when such a claim accrues under MCL 600.5827.” Id. at 184.2
2
This Court noted that “[b]ecause the issue is uncontested, we presume, without deciding,
that the definition of ‘accrual’ in MCL 600.5827 applies equivalently to MCL 600.6431.”
Id. at 183 n 8. We also noted that even if we were to apply the common-law definition of
6
In Rusha v Dep’t of Corrections, 307 Mich. App. 300; 859 NW2d 735 (2014), the
Court of Appeals rejected the defendant’s argument that MCL 600.6431 does not apply to
constitutional torts. The Court of Appeals held that the Legislature possesses the authority
to enact procedural rules governing constitutional claims as long as the rules do not place
an undue burden on a constitutional right. Id. at 307-308. In other words, the rules cannot
be “so harsh and unreasonable in their consequences that they effectively divest plaintiffs
of the access to the courts intended by the grant of the substantive right.” Id. at 311
(quotation marks and citation omitted). See also Taxpayers Allied for Constitutional
Taxation v Wayne Co, 450 Mich. 119, 125-126; 537 NW2d 596 (1995) (“The one-year
limitation is not in the class of limitation periods that are ‘so harsh and unreasonable in
their consequences that they effectively divest plaintiffs of the access to the courts intended
by the grant of the substantive right.’ ”), quoting Forest v Parmalee, 402 Mich. 348, 359;
262 NW2d 653 (1978). The Court of Appeals held that MCL 600.6431 places a
“reasonable, albeit minimal, burden on a plaintiff to advise the state of potential claims.”
Rusha, 307 Mich. App. at 313. This Court denied leave to appeal in Rusha. Rusha v Dep’t
of Corrections, 498 Mich. 860 (2015).
“accrual,” the outcome would not be any different. Id. “Under the common law, a claim
generally accrues ‘when all of the elements of the cause of action have occurred and can
be alleged in a proper complaint.’ ” Id., quoting Connelly v Paul Ruddy’s Equip Repair &
Serv Co, 388 Mich. 146, 150; 200 NW2d 70 (1972). Similarly, in the instant case, because
the issue is uncontested, I presume, without deciding, that the definition of “accrual” in
MCL 600.5827 applies equivalently to MCL 600.6431. In addition, as discussed in more
detail later, application of the common-law definition of “accrual” would not alter my
conclusion that plaintiffs’ complaint was not timely filed.
7
B. TIMELINESS
Plaintiffs here failed to file a notice of intention to file a claim. They filed their
complaint on January 21, 2016, and thus the event giving rise to the cause of action must
have happened on or after July 21, 2015, in order for plaintiffs’ action to have been filed
in a timely manner. Accordingly, if the event giving rise to the cause of action was the
switching of the water supply on April 25, 2014, plaintiffs’ action is untimely.
The Court of Appeals held that “genuine issues of material fact still exist regarding
whether plaintiffs satisfied the statutory notice requirements of MCL 600.6431.” Mays,
323 Mich. App. at 25. It also held that “the harsh-and-unreasonable-consequences exception
relieves plaintiffs from the statutory notice requirements and . . . the fraudulent-
concealment exception of MCL 600.5855 may provide an alternative basis to affirm the
court’s denial of summary disposition.” Id. I respectfully disagree with each of these
conclusions.
1. ACCRUAL
In an action against the state for property damage or personal injuries, the “claimant
shall file with the clerk of the court of claims a notice of intention to file a claim or the
claim itself within 6 months following the happening of the event giving rise to the cause
of action.” MCL 600.6431(3). This Court recently held that “there is no meaningful
distinction between ‘the happening of the event giving rise to [a] cause of action’ seeking
monetary relief under MCL 600.6431(3) and when such a claim accrues under MCL
8
600.5827.” Bauserman, 503 Mich. at 184.3 A claim accrues under MCL 600.5827 “at the
time the wrong upon which the claim is based was done regardless of the time when
damage results.” “We have explained that the date of the ‘wrong’ referred to in MCL
600.5827 is the date on which the defendant’s breach harmed the plaintiff, as opposed to
the date on which defendant breached his duty,” Bauserman, 503 Mich. at 183 (quotation
marks and citation omitted), or the date on which the plaintiff discovered the harm,
Trentadue, 479 Mich. at 391-392. “The relevant ‘harms’ for that purpose are the actionable
harms alleged in plaintiff’s cause of action.” Frank, 500 Mich. at 150. “Additional
damages resulting from the same harm do not reset the accrual date or give rise to a new
cause of action.” Id. at 155.
Accordingly, “we are called upon to ‘determine the date on which plaintiffs first
incurred the harms they assert’ by looking to the ‘actionable harms’ alleged in plaintiffs’
complaint.” Bauserman, 503 Mich. at 184-185, quoting Frank, 500 Mich. at 150. Plaintiff’s
original complaint alleges the following:
 Plaintiffs “from April 25, 2014 to the present, have experienced and will
continue to experience serious personal injury and property damage caused by
3
The Court of Appeals opinion in the instant case preceded this Court’s opinion in
Bauserman. The Court of Appeals dissent concluded that the common-law definition of
accrual was applicable, including the common-law discovery rule. Mays, 323 Mich. App.
at 98 (RIORDAN, J., dissenting). Nevertheless, the dissent concluded that the action was
not timely filed because plaintiffs knew or should have known of their cause of action
significantly longer than six months before they filed this cause of action. Id. at 99.
Assuming for the sake of argument that the common-law definition of accrual, including
the common-law discovery rule, does apply here, I agree with the dissenting judge that the
action was not timely filed because plaintiffs knew or should have known of their cause of
action more than six months before they filed the cause of action, as will be discussed in
greater detail later.
9
Defendants’ deliberately indifferent decision to expose them to the extreme
toxicity of water pumped from the Flint River into their homes, schools,
hospitals, correctional facilities, workplaces and public places.”
 Defendants “deprived Plaintiffs of life, liberty and property without due process
of law when they knowingly took from Plaintiffs safe drinking water and
replaced it with what they knew to be a highly toxic alternative solely for fiscal
purposes.”
 Plaintiffs “since April 25, 2014, were and continue to be exposed to highly
dangerous conditions created, caused and knowingly prolonged by Defendants’
deliberately indifferent and shocking decision to replace safe drinking water
supplied by the City of Detroit’s water system with extremely toxic water
pumped from the Flint River[.]”
 “Within days after the switch, Defendant State, through its Defendant agencies,
departments and/or officials, began receiving complaints from water users,
including Plaintiffs and/or Plaintiff Class members, that the water was cloudy
and foul in appearance, taste and odor.”
 “By August, 2014, Flint water tested positive for E. coli. and several ‘boil water’
advisories were issued by the City of Flint through September, 2014.”
 “During the next eight (8) months, Flint water users, including Plaintiffs and/or
Plaintiff Class members, expressed their concerns about water quality in
multiple ways, including letters, emails and telephone calls to Flint and MDEQ
officials, the media and through well publicized demonstrations on the streets of
Flint.”
 “On January 20, 2015, citizen protests mounted fueled in part by encouragement
from environmental activist Erin Brockovich and her associate, water expert Bob
Bowcock.”
 “On February 17, 2015, Flint water users staged public demonstrations
demanding that Flint re-connect with Detroit.”
 “This action is brought by the named Plaintiffs on behalf of individuals who
from April 25, 2014 to present were exposed to toxic Flint water and experienced
an injury to their person and/or property and/or who in the future will be so
injured.”
Plaintiffs’ amended complaint alleges the following:
10
 “This constitutional tort class action is pursued on behalf of Flint water users
and property owners from April 25, 2014 to the present, which include but are
not limited to, tens of thousands of individuals and businesses, who have
experienced and will continue to experience serious personal injury and property
damage caused by Defendants’ deliberately indifferent decision to expose them
to the extreme toxicity of water pumped from the Flint River into their homes,
schools, hospitals, businesses, correctional facilities, workplaces and public
places . . . .”
 Plaintiffs “since April 25, 2014, were and continue to be injured in person and
property because they were exposed to highly dangerous conditions created,
caused and knowingly prolonged by Defendants’ conduct . . . .”
 “In June 2014, citizen complaints about contaminated water continued without
the State doing anything to address these complaints. Many Flint water users
reported that the water was making them ill.”
 “The Governor’s office received citizen complaints and was well aware of
numerous press stories about water quality problems as early as May 2014 and
continuing throughout 2015.”
 “On February 17, 2015, Flint water users staged public demonstrations
demanding that Flint re-connect with [the Detroit Water and Sewerage
Department].”
The actionable harm alleged in plaintiffs’ two complaints consists of the exposure
to the toxic water from the Flint River, which began on April 25, 2014. Simply put,
plaintiffs did not file a notice of intention to file a claim or the claim itself within six months
of that date; therefore, their claim is barred by MCL 600.6431(3).
In an order in Henry v Dow Chem Co, 501 Mich. 965, 965 (2018), this Court held
that the action therein accrued when the dioxins reached the plaintiffs’ property, not when
the plaintiffs first became aware of the damage to their property nor when they became
aware of the extent of the damage to their property. Our order was issued the day before
the Court of Appeals issued its opinion in the instant case, in which the Court of Appeals
11
cited its very decision in Henry, which this Court had just reversed. The Court of Appeals’
holding in this case that “the date on which defendants acted to switch the water is not
necessarily the date on which plaintiffs suffered the harm giving rise to their causes of
action,” Mays, 323 Mich. App. at 28, and the lead opinion’s not dissimilar conclusion are
both inconsistent with our holding in Henry that plaintiffs in that case were allegedly
harmed once the dioxins reached their property. Just as the plaintiffs were allegedly
harmed once the dioxins reached their property in Henry, plaintiffs in this case were
allegedly harmed once the Flint River water reached their property.4
The lead opinion concludes that “questions of fact remain as to when plaintiffs
suffered injury to person and property . . . .” However, plaintiffs’ complaint and amended
complaint very clearly allege that plaintiffs were harmed beginning on April 25, 2014,
when they were first exposed to the contaminated water of the Flint River. Although
plaintiffs claim that they continued over time to be harmed by such exposure, “[a]dditional
damages resulting from the same harm do not reset the accrual date or give rise to a new
cause of action.” Frank, 500 Mich. at 155. See also Connelly v Paul Ruddy’s Equip Repair
4
The lead opinion concludes that Henry is distinguishable because plaintiffs in the instant
case “do not allege that their claimed harms resulted at the time Flint’s water source was
switched.” However, plaintiffs’ original complaint alleges that plaintiffs “from April 25,
2014 to the present, have experienced and will continue to experience serious personal
injury and property damage caused by Defendants’ deliberately indifferent decision to
expose them to the extreme toxicity of water pumped from the Flint River into their homes,
schools, hospitals, correctional facilities, workplaces and public places.” (Emphasis
added.) Similarly, plaintiffs’ amended complaint alleges that plaintiffs “since April 25,
2014, were and continue to be injured in person and property because they were exposed
to highly dangerous conditions created, caused and knowingly prolonged by Defendants’
conduct . . . .” (Emphasis added.)
12
& Serv Co, 388 Mich. 146, 151; 200 NW2d 70 (1972) (“Once all of the elements of an
action for personal injury, including the element of damage, are present, the claim accrues
and the statute of limitations begins to run. Later damages may result, but they give rise to
no new cause of action, nor does the statute of limitations begin to run anew as each item
of damage is incurred.”).5
Plaintiffs rely on Hart v Detroit, 416 Mich. 488; 331 NW2d 438 (1982), to argue in
particular that their inverse-condemnation claim was timely filed. Hart held:
The time of “taking” in an inverse condemnation action is not
necessarily coincidental with the time plaintiff’s cause of action accrues. . . .
It is common for such actions to involve a continuous wrong by the
condemnor rather than a single act. In an inverse condemnation action such
as the present one, in which plaintiffs claim a continuous wrong by the
condemnor, it is well-settled that the statute of limitations does not begin to
run until the consequences of the condemnor’s actions have stabilized. [Id.
at 503-504.]
However, Hart is no longer good law because this Court in Garg v Macomb Co Community
Mental Health Servs, 472 Mich. 263; 696 NW2d 646 (2005), later abolished the “continuing
violations” doctrine because it was inconsistent with the language of the statute of
limitations. As this Court explained:
[T]he statute simply states that a plaintiff “shall not” bring a claim for injuries
outside the limitations period. Nothing in these provisions permits a plaintiff
to recover for injuries outside the limitations period when they are
5
The lead opinion states that “[p]laintiffs have also alleged injuries that might include
plaintiffs who suffered in vitro exposure to toxic water” and therefore “[i]t would simply
be illogical to foreclose a plaintiff’s suit if the plaintiff had been exposed to the Flint water
in the womb and thus suffered harm but had not yet been born as of April 2014.” However,
plaintiffs’ complaints do not say anything at all concerning in vitro exposure to toxic water;
therefore, that issue is simply not before this Court.
13
susceptible to being characterized as “continuing violations.” To allow
recovery for such claims is simply to extend the limitations period beyond
that which was expressly established by the Legislature. [Id. at 282.]
The same proposition is true here. MCL 600.6431 provides that “[n]o claim may be
maintained against the state . . . for property damage or personal injuries [unless the]
claimant . . . file[s] with the clerk of the court of claims a notice of intention to file a claim
or the claim itself within 6 months following the happening of the event giving rise to the
cause of action.”6 As discussed earlier, the event giving rise to the cause of action at issue
here was the exposure to the toxic water, which initially occurred on April 25, 2014.7
6
The lead opinion is correct that Hart involved an inverse-condemnation claim, while
Garg involved a discrimination claim. However, the issue in both those cases was
essentially the same: whether the statute of limitations permits a plaintiff to recover for
injuries suffered outside the limitations period where those injuries are susceptible to being
characterized as “continuing violations.” Garg, the later-in-time decision, answered that
question in the negative, and I see no logical reason why its reasoning would not apply in
other contexts, including, in particular, in the context of an inverse-condemnation claim.
Although this Court did not expressly overrule Hart in Garg, I do not see how the reasoning
of Hart conceivably could survive the reasoning of Garg.
7
Although Henry did not involve an inverse-condemnation claim, it did involve a similar
claim of contamination that allegedly resulted in a diminution of property value. And this
Court held that the claim accrued when the dioxin reached the plaintiffs’ property,
“regardless of whether it was possible at that time to calculate the level of monetary
damage.” Henry v Dow Chem Co, 319 Mich. App. 704, 736; 905 NW2d 422 (2017)
(GADOLA, P.J., dissenting); Henry, 501 Mich. at 965 (reversing part of the opinion of the
Court of Appeals “for the reasons stated in the Court of Appeals dissenting opinion”).
The lead opinion concludes that “[t]he economic damage plaintiffs allege from the
diminution of their properties’ value could not have occurred on the date the water source
was switched.” Instead, it asserts, “[p]laintiffs’ property diminished in value at a later date,
yet to be determined, when a buyer or bank had the requisite information to be disinclined
to buy or finance the purchase of property in Flint.” But this Court rejected a similar
argument in Henry when it adopted Judge GADOLA’s dissent. In Henry, the Court of
Appeals held that the plaintiffs’ action did not accrue until the MDEQ revealed to the public
that elevated dioxin concentrations were pervasive in the Tittabawassee river floodplain
14
Plaintiffs did not file a notice of intention to file a claim or the claim itself within six months
of April 25, 2014, and therefore their claims are barred. Once again, “[a]dditional damages
resulting from the same harm do not reset the accrual date or give rise to a new cause of
action.” Frank, 500 Mich. at 155.8
and restricted the property owners’ rights to use their property. Judge GADOLA concluded
that the plaintiffs’ action accrued when the dioxins reached the plaintiffs’ property,
explaining that “[i]t may be true that the value of plaintiffs’ property changed when the
MDEQ published its 2002 bulletin, but plaintiffs’ discovery in 2002 that their damages
were greater than originally supposed when the dioxin was deposited on their properties,
possibly as early as the 1970s, did not create a new accrual date for plaintiffs’ claims. Such
reasoning overlooks the clear directive of MCL 600.5827 that ‘the claim accrues at the
time the wrong upon which the claim is based was done regardless of the time when
damage results.’ (Emphasis added.)” Henry, 319 Mich. App. at 735 (GADOLA, P.J.,
dissenting). As already noted, this Court reversed the Court of Appeals in Henry “for the
reasons stated in the Court of Appeals dissenting opinion.” Henry, 501 Mich. at 965. As a
result, pursuant to Henry, plaintiffs’ action here accrued when the Flint River water reached
plaintiffs’ property, without regard to when “a buyer or bank had the requisite information
to be disinclined to buy or finance the purchase of property in Flint.”
8
Moreover, I question whether plaintiffs have even adequately alleged a claim of inverse
condemnation. “The right to just compensation, in the context of an inverse condemnation
suit for diminution in value . . . exists only where the landowner can allege a unique or
special injury, that is, an injury that is different in kind, not simply in degree, from the harm
suffered by all persons similarly situated.” Spiek v Dep’t of Transp, 456 Mich. 331, 348;
572 NW2d 201 (1998). As we have explained:
Where harm is shared in common by many members of the public, the
appropriate remedy lies with the legislative branch and the regulatory bodies
created thereby . . . . Only where the harm is peculiar or unique in this
context does the judicial remedy become appropriate. [Id. at 349.]
Concerning the meaning of “similarly situated,” the lead opinion is correct that Spiek
compared the plaintiffs to other persons who “reside near a public highway,” rather than
the specific highway that the plaintiffs resided near. Id. at 350 (emphasis added).
However, in discussing this requirement in general, Spiek expressly indicated that a
plaintiff’s alleged damage must not be “common to all property in the neighborhood” or
“common [to] all lands in the vicinity.” Id. at 346, 348 n 14 (quotation marks and citation
15
2. HARSH & UNREASONABLE CONSEQUENCES
The Court of Appeals also held that “the harsh-and-unreasonable-consequences
exception relieves plaintiffs from the statutory notice requirements,” Mays, 323 Mich. App.
at 25, and Justice BERNSTEIN agrees.9 However, that conclusion is simply inconsistent
omitted). In addition, contrary to the approach of the majority, this Court in Hill v State
Hwy Comm, 382 Mich. 398; 170 NW2d 18 (1969), compared the plaintiffs in that case with
those whose property was also affected by the specific construction at issue. See id. at 404
(“[P]laintiffs make no showing that they are differently treated from other members of the
traveling public or property owners whose use of these streets has been restricted by the
construction of the limited access expressway.”). Accordingly, I question whether the
majority is correct in holding that the pertinent inquiry is whether plaintiffs are similarly
situated to municipal water users generally rather than with other Flint water users.
Assuming that the latter defines the pertinent inquiry, plaintiffs have not alleged that
they have suffered a unique or special injury that is any different in kind from the harm
suffered by all persons similarly situated. Indeed, plaintiffs claim to represent all the Flint
water users that suffered personal injuries and property damage from the water. That is,
plaintiffs claim to represent all persons similarly situated. Therefore, arguably by
definition, plaintiffs have not alleged an injury that is any different in kind from those
suffered by all persons similarly situated. Because the harm that plaintiffs alleged is shared
in common by many members of the public, the appropriate remedy arguably lies with the
legislative branch and the regulatory bodies created thereby. That is, it is not necessarily
that there is no remedy available to persons injured but that the remedy is more properly
fashioned by a different agency of government. However, given that I conclude that
plaintiffs here failed to comply with the notice provision of the Court of Claims Act, it is
unnecessary for me to decide whether plaintiffs have adequately alleged a claim of inverse
condemnation. Similarly, it is unnecessary for me to address the merits of plaintiffs’
substantive due-process claim, so I will merely observe that I find Justice VIVIANO’s
opinion to be highly estimable and share a good many of his concerns.
9
The Court of Claims also relied on the harsh-and-unreasonable-consequences exception
to deny defendants’ motions for summary disposition. The Court of Appeals dissent
concluded that the harsh-and-unreasonable-consequences exception was abrogated by
McCahan and Rowland because in those cases this Court held that no judicially created
savings construction is permitted to avoid a clear statutory mandate. However, those cases
involved statutory claims, and we held that because the Legislature could completely
abolish those claims, it could obviously place restrictions on such claims. The instant case
16
with the Court of Appeals’ decision in Rusha, 307 Mich. App. at 310, that the “six-month
filing deadline” is a “minimal imposition, especially considering that § 6431 allows the
filing of statutory notice in lieu of filing an entire claim.” MCL 600.6431(3)
“merely . . . place[s] a reasonable, albeit minimal, burden on a plaintiff to advise the state
of potential claims.” Id. at 313. Therefore, “the statutory notice requirement of § 6431(3)
is reasonable and [does] not . . . deprive [a] plaintiff of any substantive, constitutional
right.” Id. Requiring parties who wish to sue the state for alleged constitutional violations
to file a notice of intention to file a claim within six months following the happening of the
event giving rise to the cause of action does not place an undue burden on such parties.
They do not have to actually file a complaint within six months but simply have to file a
notice of an intention to file a claim. As the Court of Appeals itself recognized, “[A]
claimant requires only minimal information to file a notice of intent and . . . the knowledge
required distinguishes a notice of intent from a legal complaint.” Mays, 323 Mich. App. at
42 n 10. And once a claimant files a notice of intent, the claimant has three years after the
claim has accrued to file a complaint. MCL 600.6452(1).
involves constitutional claims that the Legislature lacks the authority to completely abolish
(at least with regard to inverse condemnation), and this Court has long held that the
Legislature cannot enact limitation periods that “are so harsh and unreasonable in their
consequences that they effectively divest plaintiffs of the access to the courts intended by
the grant of the substantive right.” Forest, 402 Mich. at 359. For example, the Legislature
could not enact a statute that requires a claimant to file a takings action within one day of
the alleged taking. The Court of Appeals dissent also concluded that application of the
notice provision would not be harsh or unreasonable given that plaintiffs had numerous
indications that they were suffering harm within six months of the water-source switch and
so could have reasonably filed their notice of intent in a timely fashion. I fully agree with
this conclusion.
17
With regard to this particular case, it would not have been at all difficult for plaintiffs
to comply with the six-month notice provision because, based on their own complaints, it
is clear that plaintiffs were well aware of their possible cause of action within six months
of the event giving rise to their cause of action. As discussed earlier, this event was the
actual exposure to the toxic water, which began on April 25, 2014. Within days after this
event, plaintiffs complained that the water was cloudy and foul in appearance, taste, and
odor. By May 2014, there had been numerous press accounts about the water quality
problems in Flint. By June 2014, many Flint water users reported that the water was
making them ill. And by August 2014, several boil-water advisories had been issued.
Plaintiffs had been presented with numerous indications that they were suffering harm
within six months of the water-source switch and so could have easily filed their notice of
intent in a timely manner.
Moreover, plaintiffs were certainly well aware of their possible cause of action more
than six months before they filed suit on January 21, 2016, given that on January 20, 2015,
citizen protests mounted about the water and on February 17, 2015, there were public
demonstrations demanding that Flint reconnect with the Detroit Water and Sewerage
Department. Indeed, plaintiff Melissa Mays actually filed two complaints based on the
very same set of facts as in the instant case-- one in Genesee Circuit Court on June 5, 2015,
and the other in the United States District Court for the Eastern District of Michigan on
July 6, 2015-- well before the instant complaint was filed. Plaintiffs did not even file their
complaint in the instant case within six months of filing those complaints.
For these reasons, I conclude that the harsh-and-unreasonable-consequences
exception does not relieve plaintiffs from the statutory notice requirements.
18
3. FRAUDULENT CONCEALMENT
The Court of Appeals also held that “the fraudulent-concealment exception of MCL
600.5855 may provide an alternative basis to affirm the court’s denial of [defendants’
motions for] summary disposition,” Mays, 323 Mich. App. at 25, and Justice BERNSTEIN
agrees.10 Again, I respectfully disagree. The fraudulent-concealment statute only
constitutes an exception to statutes of limitations and does not constitute an exception to
the statutory notice provision at issue here.11 The fraudulent-concealment statute itself
asserts that it allows an action to be brought under certain circumstances “although the
action would otherwise be barred by the period of limitations,” MCL 600.5855; it does not
state that an action can be brought although the action would otherwise be barred by the
statutory notice provision. Therefore, the fraudulent-concealment statute simply does not
pertain in the present context. See Zelek v Michigan, unpublished per curiam opinion of
the Court of Appeals, issued October 16, 2012 (Docket No. 305191), p 2 (“The Court of
Claims notice provision has no effect on the limitation period and is not subject to the
tolling provisions of MCL 600.5855.”); Brewer v Central Mich Univ Bd of Trustees,
10
The Court of Claims rejected plaintiffs’ argument that the fraudulent-concealment statute
should be applied in this case. The Court of Appeals dissent also concluded that the
fraudulent-concealment statute does not apply.
11
The fraudulent-concealment statute, MCL 600.5855, provides:
If a person who is or may be liable for any claim fraudulently conceals
the existence of the claim or the identity of any person who is liable for the
claim from the knowledge of the person entitled to sue on the claim, the
action may be commenced at any time within 2 years after the person who is
entitled to bring the action discovers, or should have discovered, the
existence of the claim or the identity of the person who is liable for the claim,
although the action would otherwise be barred by the period of limitations.
19
unpublished per curiam opinion of the Court of Appeals, issued November 21, 2013
(Docket No. 312374), p 2 (“[P]laintiff’s arguments are premised on exceptions to the
statute of limitations. . . . Yet, the notice requirement of MCL 600.6431(3) is not a statute
of limitations, a savings provision, or a tolling provision. Instead, it is a condition
precedent to sue the state.”) (quotation marks and citation omitted).
This is further evidenced by the fact that the Legislature incorporated the fraudulent-
concealment exception into the statute-of-limitations provision of the Court of Claims Act,
but not into its statutory notice provision. MCL 600.6452(1) of the Court of Claims Act
provides that the statute of limitations is three years in an action against the state. MCL
600.6452(2) of the Court of Claims Act provides that “[e]xcept as modified by this section,
the provisions of RJA chapter 58, relative to the limitation of actions, shall also be
applicable to the limitation prescribed in this section.” The fraudulent-concealment statute,
MCL 600.5855, is a “provision[] of RJA chapter 58, relative to the limitation of actions,”
and thus is applicable to the statute-of-limitations provision of the Court of Claims Act.
On the other hand, the statutory notice provision of the Court of Claims Act does not
similarly incorporate the fraudulent-concealment statute. Given that the Legislature chose
to incorporate the fraudulent-concealment statute into the statute of limitations but not into
the statutory notice provision, we should presume absent evidence to the contrary that this
was purposeful and should not summarily incorporate the fraudulent-concealment statute
where it has not been placed by the lawmaking body of our state government.12
12
Justice BERNSTEIN recognizes that “[t]he Legislature did not create a fraudulent-
concealment exception for the statutory notice provision in the [Court of Claims Act].”
20
Furthermore, even assuming that the fraudulent-concealment statute does apply to
MCL 600.6431(3), for the same reasons that I conclude that the harsh-and-unreasonable-
consequences exception does not relieve plaintiffs from the statutory notice requirements,
I conclude that the fraudulent-concealment statute also does not relieve plaintiffs from the
statutory notice requirements-- namely, it is clear that plaintiffs were well aware of their
possible cause of action well within six months of the event giving rise to their cause of
action and thus the existence of their cause of action was not fraudulently concealed from
them. Once again, they could have easily filed the required notice of intent within six
months of the event giving rise to their cause of action.
For these reasons, I conclude that the fraudulent-concealment exception of MCL
600.5855 does not provide a basis to affirm the trial court’s denial of summary disposition.
Yet, he reads such an exception into the statutory notice provision of the Court of Claims
Act because its absence there is “not reconcilable with the Legislature’s intent to provide
claimants with two years from the date of discovery to bring suit for harm that was
fraudulently concealed, as expressed in MCL 600.6452(2).” However, this is simply
inconsistent with the plainest expression of the Legislature’s actual intention, i.e., the law
enacted. See Mayor of Lansing v Pub Serv Comm, 470 Mich. 154, 161; 680 NW2d 840
(2004).
Justice BERNSTEIN also asserts that failing to read a fraudulent-concealment
exception into the statutory notice provision “would result in reading out MCL 600.6452(2)
entirely, because plaintiffs would never be able to utilize the fraudulent-concealment
exception.” I respectfully disagree. MCL 600.6452(2) does more than incorporate the
fraudulent-concealment statute into the statute-of-limitations provision of the Court of
Claims Act; rather, it incorporates all the “provisions of RJA chapter 58, relative to the
limitation of actions” into the statute-of-limitations provision of the Court of Claims Act.
Therefore, failing to read a fraudulent-concealment exception into the statutory notice
provision of the Court of Claims Act would not “entirely” result in reading out MCL
600.6452(2).
21
II. CONCLUSION
Because plaintiffs did not file a notice of intent to file a claim or the claim itself
within six months following the happening of the event giving rise to the cause of action,
this Court should reverse the Court of Appeals and remand this case to the Court of Claims
for it to enter an order granting defendants’ motions for summary disposition.
Stephen J. Markman
Brian K. Zahra
CLEMENT, J., did not participate because of her prior involvement as chief legal
counsel for Governor Rick Snyder.
22