Grant Bauserman v. Unemployment Insurance Agency ( 2022 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
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
BAUSERMAN v UNEMPLOYMENT INSURANCE AGENCY
Docket No. 160813. Argued on application for leave to appeal on October 6, 2021.
Decided July 26, 2022.
Grant Bauserman, Karl Williams, and Teddy Broe, on behalf of themselves and all others
similarly situated, brought a putative class action in the Court of Claims against the Unemployment
Insurance Agency, alleging that defendant had violated their due-process rights in violation of
Const 1963, art 1, § 17 and that defendant had also engaged in unlawful collection practices.
Plaintiffs, who were all recipients of unemployment compensation benefits, specifically alleged
that defendant had used an automated fraud-detection system—the Michigan Integrated Data
Automated System (MiDAS)—to determine that plaintiffs had received unemployment benefits
for which they were not eligible and then garnished plaintiffs’ wages and tax refunds to recover
the amount of the alleged overpayments, interest, and penalties that defendant had assessed without
providing meaningful notice or an opportunity to be heard. Defendant moved for summary
disposition on multiple grounds, including that the claims were not timely filed and that plaintiffs
could not pursue a constitutional-tort claim against defendant because plaintiffs had alternative
remedies they could pursue under the Michigan Employment Security Act (MESA), MCL 421.1
et seq. The Court of Claims, CYNTHIA D. STEPHENS, J., denied defendant’s motion, reasoning, in
part, that plaintiff’s constitutional claims were viable because the administrative remedies were
inadequate. Defendant appealed. In an unpublished per curiam opinion issued July 18, 2017
(Docket No. 333181), the Court of Appeals, GADOLA, P.J., and METER and FORT HOOD, JJ.,
reversed, concluding that plaintiffs’ claims were not timely filed. Plaintiffs sought leave to appeal
in the Supreme Court, which ordered and heard oral argument on the application. 501 Mich 1047(2018). In lieu of granting leave to appeal, the Supreme Court held that the actionable harm in a
predeprivation due-process claim occurs when a plaintiff has been deprived of property and that
such a claim accrues when a plaintiff has first incurred the deprivation. As a result, Bauserman
and Broe had timely filed their claims within six months following the deprivation of their
property, but Williams had not. The Supreme Court thus affirmed in part and reversed in part the
Court of Appeals judgment and remanded the case to the Court of Appeals for consideration of
defendant’s argument that plaintiffs failed to raise cognizable constitutional-tort claims. 503 Mich
169 (2019). On remand, in a published opinion issued December 5, 2019, the Court of Appeals,
METER and FORT HOOD, JJ. (GADOLA, P.J., concurring), concluded that the alleged violations
arose from actions taken by state actors pursuant to a governmental policy and that they could be
characterized as an established practice of state government officials such that they amounted to a
custom supported by the force of law. 330 Mich App 545 (2019). In concluding that damages
were available as a remedy for the due-process deprivation plaintiffs alleged, the Court of Appeals
applied the multifactor balancing test set forth by Justice BOYLE in her opinion in Smith v Dep’t of
Pub Health, 428 Mich 540 (1987) (BOYLE, J., concurring in part and dissenting in part). Defendant
sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant
defendant’s application for leave to appeal or take other action. 506 Mich 965 (2020).
In an opinion by Justice CAVANAGH, joined by Chief Justice MCCORMACK and Justices
BERNSTEIN, and WELCH, the Supreme Court, in lieu of granting leave to appeal, held:
A constitutional-tort action for monetary damages against the state exists except in two
specific circumstances: (1) when the Constitution has delegated to another branch of government
the obligation to enforce the constitutional right at issue or (2) when another branch of government
has provided a remedy that the Supreme Court considers adequate. An alternative remedy is
adequate when it is at least as protective of a particular constitutional right as a judicially
recognized cause of action would be. Justice BOYLE’s differing multifactor approach for
determining whether a constitutional-tort action could be brought against the state was rejected as
was her assertion that the state could not be held vicariously liable. People who have been deprived
of a constitutional right may seek redress through the courts, regardless of whether the harm was
inflicted pursuant to state custom or policy; in other words, the state can be responsible under a
theory of respondeat superior for the actions of its agents whether or not the agents were acting
under a state custom or policy at the time of the alleged tort. In this case, neither of the exceptions
to the existence of liability for a constitutional tort applied to plaintiffs’ claims that defendant
violated their due-process rights. Plaintiffs alleged a cognizable constitutional-tort claim for which
they could recover money damages. The Court of Claims correctly denied defendant’s motion for
summary disposition.
1. Although the Court of Appeals has frequently applied the multifactor test set forth in
Justice BOYLE’s partial concurrence in Smith, the Michigan Supreme Court has not previously
found consensus on whether violations of the state’s Constitution are compensable through actions
seeking monetary damages. However, in Bivens v Six Unknown Named Agents of Fed Bureau of
Narcotics, 403 US 388 (1971), which recognized for the first time a cause of action against federal
agents for a violation of federal constitutional rights, the United States Supreme Court made clear
that constitutional violations have historically been redressed with monetary damages; other state
courts have similarly concluded that they bear the duty of vindicating rights guaranteed in their
constitutions. The continued vitality of Bivens and how federal constitutional torts differ from
state constitutional torts was not relevant to the holding of the Court in this case; the holding did
not rely on Bivens but on the authorities discussed in that case. Plaintiffs’ cause of action was
grounded in state constitutional rights and the Michigan Supreme Court’s authority and duty to
say what the law is.
2. Relevant here, Article 1 of Michigan’s Constitution, the Declaration of Rights, is the
bedrock upon which everything else in the Constitution was built because it guarantees civil and
political integrity and the freedom and independence of the state’s citizens. Any right given in the
Constitution must have a remedy or it is not a right at all but, instead, a voluntary obligation. The
Constitution does not have to explicitly provide for a remedy for a constitutional violation in order
for the Court to enforce its guarantees, regardless of whether the appropriate remedy is in the form
of an injunction or money damages; indeed, only a handful of the 27 sections of the Declaration
of Rights mention remedies at all.
3. While the Constitution vests the legislative power of the state in the Senate and House
of Representatives, granting them the right to make laws and to alter or repeal them, it exclusively
vests the judicial power of the state in the Court, which retains all judicial power not ceded to the
federal government. The Separation of Powers Clause of Michigan’s Constitution requires courts
to recognize and redress constitutional violations; in that regard, the Michigan Supreme Court has
primary responsibility for interpreting and enforcing the Constitution absent an explicit
constitutional provision limiting its authority to redress constitutional violations. Stated
differently, vindication of constitutional rights is not dependent on legislative action unless the
Constitution specifically delegates that power to the Legislature. The scope of the Legislature’s
authority to regulate tort liability created by statute has no bearing on whether the Legislature has
authority to restrict rights codified in the Constitution, let alone whether those rights remain
undeveloped without legislative enactment. Further, Legislative silence on the issue of remedies
for a due-process violation under Const 1963, art 1, § 17 does not signal the ratifiers’ intent to
preclude any mechanism of enforcement. However, while the Legislature may not trump the
Constitution, it may enact a remedial scheme to provide a way in which to vindicate a
constitutional right equal to that which the Court could afford. Thus, if the Legislature already
provides an adequate mechanism to remedy a constitutional tort—i.e., one that is at least as
protective of a particular constitutional right as a judicially recognized cause of action would be—
the Court is not required to duplicate the effort. Absent those considerations, the Court retains
authority to vindicate the rights guaranteed by the state’s Constitution, including by recognizing
actions seeking money damages. Accordingly, money damages are an available remedy for
constitutional torts unless (1) enforcement of the constitutional right was delegated to another
branch of government by the Constitution or (2) the Court considers adequate the remedy provided
by another branch of government. By adopting this test, the Court rejected Justice BOYLE’s
multifactor approach in Smith. The Court’s inherent judicial authority requires the Court to afford
a remedy for all constitutional violations, not just those it deems wise or justified. Further, unlike
Justice BOYLE’s test, the standard of liability in a constitutional-damages claim is not limited to a
direct standard of liability; people who have been deprived of a constitutional right may seek
redress through the courts, regardless of whether their harm was inflicted pursuant to state custom
or policy.
4. The Due Process Clause of Michigan’s Constitution, which is part of the Declaration of
Rights, provides that 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. The right of all
individuals, firms, corporations, and voluntary associations to fair and just treatment in the course
of legislative and executive investigations and hearings shall not be infringed. The language of
the Due Process Clause does not confer authority on another branch of government to provide a
remedy for a violation of that right; thus, courts may infer a damages remedy under that provision
if another branch of government has not provided an adequate remedy.
5. In this case, plaintiffs asserted that defendant’s use of MiDAS deprived them of their
property without adequate process and an opportunity to be heard. The Due Process Clause did
not confer authority on another branch of government to provide a remedy for violation of that
right. MESA did not provide a remedy for plaintiffs because they did not challenge the
administration of the act or seek a super appeal from a benefits determination. Instead, plaintiffs
brought a tort claim challenging defendant’s use of MiDAS to deprive plaintiffs of property
without due process of law, and no other adequate remedy existed to vindicate the alleged violation
of plaintiffs’ rights. Under the facts alleged, plaintiffs’ allegations, if proven, were sufficient to
sustain a constitutional-tort claim under Michigan’s Due Process Clause for which they could
recover monetary damages. The Court of Claims correctly denied defendant’s motion for
summary disposition.
Affirmed; case remanded to the Court of Claims for further proceedings.
Justice WELCH, concurring, agreed with the majority that a party has the ability to sue the
state for monetary damages on the basis of an alleged constitutional violation and that the remedy
will be implied when the only way to adequately remedy the violation is to allow for monetary
damages. She also agreed with the majority’s framework for recognizing a constitutional tort for
monetary damages and with the holding that plaintiffs pleaded a valid constitutional tort for
monetary damages in this case. She wrote separately because she would have gone further than
the majority and expressly limited monetary damages for constitutional torts to claims arising from
a violation of a right enumerated in Michigan’s Declaration of Rights, Const 1963, art 1. The
liberties set forth in the Declaration are fundamental and inalienable while the balance of the
Constitution focuses on alienable rights and liberties that the people have entrusted to the state to
allow for a democratic government to operate. Typically, a violation of those alienable rights
would be poorly suited to vindication through a monetary-damages award against the state. For
those reasons, Justice WELCH limited her concurrence with Part III of the majority opinion to the
extent it could be interpreted as applying beyond a claim under the Declaration of Rights and she
did not join footnote 13 of that opinion to the extent it declined to adopt such a limitation. The
majority’s “adequate-alternative-remedy requirement” substantially limits the state’s liability for
constitutional-tort claims because those claims are rare given that adequate alternative remedies to
an implied monetary-damages remedy exist in most cases. An adequate remedy need not make a
plaintiff whole in every circumstance; and the Legislature may manage potential exposure by
providing rights and remedies in legislation that are substantial enough to adequately secure and
give meaning to the constitutional right. Unless monetary damages are necessary to secure and
vindicate a violation of a constitutional right, a policy decision of the Legislature or the Executive
Branch regarding how to remedy a violation of legal rights under a statutory scheme should not be
second-guessed. The threshold question for judges is whether a remedy is adequate, not whether
it is ideal or equally comprehensive. To that end, the question is not just whether monetary
damages or other remedies are available by some other means, such as through a state or federal
statute or through a cause of action under the common law; the question is also whether the existing
remedy—injunctive relief, declaratory relief, more process, a refund, or whatever it is—will be
adequate such that the constitutional right is preserved and not rendered ineffectual.
Justice VIVIANO, joined by Justice ZAHRA, dissenting, disagreed with the majority’s
conclusion that a party has the ability to sue the state for monetary damages on the basis of an
alleged constitutional violation. Any reliance on Bivens to support the Court’s holding was
misplaced because the United States Supreme Court has only recognized a Bivens-style damages
claim on two other occasions and those decisions pose separation-of-powers concerns because the
Constitution grants to the Legislature the power to create causes of action, not the judiciary. Under
Justice BOYLE’s test in Smith, courts considered multiple factors when determining whether to
infer a damages remedy for violations of the Constitution caused by a custom or policy. The
separation-of-powers criticisms of Bivens apply equally to Smith. Courts violate the separation of
powers when they create causes of action for money damages for constitutional violations; only
the Legislature has authority to fashion remedies for constitutional wrongs, not the judiciary. The
majority’s recognition of monetary damages for a constitutional violation by the states obliterates
the protections afforded by the separation of powers. To the extent the majority grounded its
decision on the Court’s common-law powers, the decision massively expanded constitutional-tort
liability. The majority’s test provides no guidance in that the Legislature’s remedy for a
constitutional violation will only be adequate if it is that which the Supreme Court would have
come up with itself. In addition, the scope of the holding was uncertain because, while the opinion
focuses on a provision in the Declaration of Rights, three justices left open the possibility that
implied causes of action for damages could be found outside the Declaration. Nothing in the text
or history of Michigan’s Constitution supports finding a general cause of action for damages based
on constitutional violations; relevant here, the text of the Due Process Clause does not support a
damages remedy. By allowing such claims, Smith was wrongly decided and the majority here
compounded the error by broadening Smith. There is a distinction between a court invalidating
unconstitutional governmental action by enjoining those violations and a court adopting judicially
created doctrines that, in effect, usurp legislative authority by creating de facto statutory
enactments to implement a constitutional provision. Thus, recognizing that a person may invoke
a court’s equitable powers to enjoin constitutional violations is not inconsistent with rejecting the
inferring of causes of action for damages from the constitutional text. The majority’s textual
analysis amounts to the proposition that the very nature of a right implies a remedy, but the United
States Supreme Court and this Court have recognized that not all areas of law provide for damages
remedies for the violation of rights. The majority’s suggestion that there is a historical practice of
inferring damages remedies is also not on point because the cases relied on were ordinary tort
actions in which the constitutional arguments were incidental to the cause of action and entitlement
to damages. Justice VIVIANO would have held that the majority’s expansion of Smith was wrong
and that Smith should be overruled, putting an end to the Court’s usurpation of the Legislature’s
authority to create causes of action for damages for constitutional violations. Nonetheless, he
noted that had the majority simply applied Justice BOYLE’s test, which three justices in the current
majority recently noted was “persuasive,” a damages remedy could not properly have been inferred
given the facts in this case.
Justice CLEMENT, dissenting, disagreed with the majority’s reconsideration and
replacement of the test set forth in Justice BOYLE’s partial concurrence in Smith because that action
was not requested by plaintiffs. For the reasons stated in Part IV of Justice VIVIANO’s dissent,
Justice CLEMENT would have applied the Smith test to conclude that a damages remedy should not
be inferred in this case.
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED July 26, 2022
STATE OF MICHIGAN
SUPREME COURT
GRANT BAUSERMAN, KARL
WILLIAMS, and TEDDY BROE, on Behalf
of Themselves and All Others Similarly
Situated,
Plaintiffs-Appellees,
v No. 160813
UNEMPLOYMENT INSURANCE
AGENCY,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
In this case, we are presented with the question of whether plaintiffs have alleged a
cognizable state constitutional-tort claim allowing them to recover a judicially inferred
damages remedy. Plaintiffs allege that defendant, Michigan’s Unemployment Insurance
Agency (the Agency), adjudicated allegations of fraud, seized plaintiffs’ tax returns, and
imposed penalties on plaintiffs without providing meaningful notice or an opportunity to
be heard in violation of Michigan’s constitutional right to due process, Const 1963, art 1,
§ 17. Among other remedies for this constitutional violation, plaintiffs seek monetary
damages. Although we have never specifically held that monetary damages are available
to remedy constitutional torts, we now hold that they are. Inherent in the judiciary’s power
is the ability to recognize remedies, including monetary damages, to compensate those
aggrieved by the state, whether pursuant to an official policy or not, for violating the
Michigan Constitution unless the Constitution has specifically delegated enforcement of
the constitutional right at issue to the Legislature or the Legislature has enacted an adequate
remedy for the constitutional violation. Because enforcement of Const 1963, art 1, § 17
has not been delegated to the Legislature and because no other adequate remedy exists to
redress the alleged violations of plaintiffs’ rights, we agree that plaintiffs have alleged a
cognizable constitutional-tort claim for which they may recover money damages and we
agree with the lower courts that defendant was properly denied summary disposition.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs Grant Bauserman and Teddy Broe are former recipients of unemployment
compensation benefits who allege that the Agency unlawfully seized their property through
use of the Michigan Data Automated System (MiDAS) without affording them due process
of law. Their complaint alleges that MiDAS initiates an automated process that can result
in recipients being disqualified from benefits and subjected to penalties and criminal
prosecution, all without notice or an opportunity to be heard.
2
Grant Bauserman separated from employment with Eaton Aeroquip and then
collected unemployment benefits from September 2013 to March 2014. On December 3,
2014, the Agency issued two notices of redetermination—one claiming that Mr.
Bauserman had received unemployment benefits for which he was ineligible and another
claiming that he had intentionally misled the Agency or concealed information from it.
The Agency assessed penalties and interest and informed Mr. Bauserman that he owed
$19,910. He timely protested the redetermination through an online appeal on the
Agency’s website, and that protest was forwarded to the Michigan Administrative Hearing
System (MAHS) for a hearing. However, MAHS sent the matter back to the Agency, and
on June 16, 2015, the Agency intercepted Mr. Bauserman’s tax refund. Eventually, the
Agency reviewed the information Mr. Bauserman submitted and concluded that its
adjudication of fraud was incorrect—Mr. Bauserman was eligible for the unemployment
benefits he had received, and he neither misled the Agency nor concealed information from
it. On September 30, 2015, the Agency issued another redetermination, this one finding
that the December 3, 2014 redeterminations were “null and void.” The Agency
subsequently returned all monies that it had improperly seized from Mr. Bauserman.
Teddy Broe collected benefits in 2013, and the Agency issued a redetermination on
July 15, 2014, finding Mr. Broe ineligible for benefits and assessing penalties. Mr. Broe
did not initially protest, and the Agency assessed penalties and interest totaling more than
$8,000. In April 2015, Mr. Broe wrote to the Agency, appealing the redetermination and
explaining that he had not received the Agency’s earlier communications because they
were sent to his online account with the Agency and he was no longer accessing that
account because he was no longer receiving benefits. The Agency intercepted his tax
3
refunds in May 2015. The Agency initially denied the appeal as untimely but later
reconsidered Mr. Broe’s case. On November 4, 2015, the Agency issued a new
redetermination in Mr. Broe’s favor and subsequently returned all monies that had been
improperly seized from Mr. Broe.
Mr. Bauserman filed a putative class action against the Agency on September 9,
2015, and he later amended the complaint to add Mr. Broe as a named plaintiff.1 The
complaint alleged that “Michigan’s Unemployment fraud detection, collection, and seizure
practices fail to comply with minimum due process requirements.” (Emphasis omitted.)
Mr. Bauserman cited 26 USC 6402(f)(3) (authorizing a state to collect unemployment
compensation debts resulting from fraud from federal tax overpayments) and its several
requirements, including notice, 60 days to present evidence, and consideration of presented
evidence. In addition, Mr. Bauserman cited adjudication standards found in MCL 421.32a,
including notice, a reasonable time to supply information to the Agency, 30 days to claim
a hearing before an Administrative Law Judge, and a notice of appeal rights.
As stated by the Court of Appeals, plaintiffs alleged that “the Agency systemically,
and by way of concerted and coordinated actions, unlawfully intercepted their state and
federal tax refunds, garnished their wages, and forced them to repay unemployment
benefits that they had lawfully received.” Bauserman v Unemployment Ins Agency (On
Remand), 330 Mich App 545, 565; 950 NW2d 446 (2019). Additionally, they alleged,
1
The amended complaint also added Karl Williams as a named plaintiff, but because Mr.
Williams failed to comply with MCL 600.6431(3) (notice of claim), his claim was
dismissed by this Court in a subsequent appeal discussed later in this opinion. Bauserman
v Unemployment Ins Agency, 503 Mich 169, 193; 931 NW2d 539 (2019).
4
among other things, that MiDAS does not allow 60 days to present evidence and does not
allow the Agency to consider presented evidence. Plaintiffs also alleged that the
questionnaires sent by the Agency do not provide the basis for the Agency’s suspicions or
grounds for disqualification. Further, as a practical matter, many claimants never receive
the questionnaires because they are sent only to the claimant’s electronic account with the
Agency, without any additional notice via United States mail or e-mail. Among the alleged
harms asserted by plaintiffs were that the Agency “failed to repay to Class Members or to
repay on a timely basis funds which were seized by the UIA or paid over to UIA by the
Class Member to satisfy overpayments and penalty determinations which were reversed at
a later time.” Finally, plaintiffs alleged they were deprived of their property without due
process of law in violation of Const 1963, art 1, § 17. The Agency moved for summary
disposition on a number of grounds. Among them were that plaintiffs failed to state a
constitutional-tort claim because other remedies existed. The Court of Claims denied the
Agency’s motion on that ground. Prior appellate litigation centered on whether plaintiffs’
claims accrued when the initial redeterminations were issued or when the Agency seized
plaintiffs’ tax refunds. We held that “the ‘actionable harm’ in a predeprivation due-process
claim occurs when a plaintiff has been deprived of property, and therefore such a claim
‘accrues’ when a plaintiff has first incurred the deprivation of property.” Bauserman v
Unemployment Ins Agency, 503 Mich 169, 186; 931 NW2d 539 (2019). We then remanded
the case to the Court of Appeals to “consider the Agency’s argument that it is entitled to
summary disposition on the ground that plaintiffs failed to raise cognizable constitutional
tort claims.” Id. at 193 n 20.
5
On remand, the Court of Appeals started its analysis by reasoning that claims of this
sort “originated” in Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics, 403
US 388; 91 S Ct 1999; 29 L Ed 2d 619 (1971). Bauserman (On Remand), 330 Mich App
at 560. The Court of Appeals noted that in Smith v Dep’t of Pub Health, 428 Mich 540,
544; 410 NW 2d 749 (1987), our 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,’ ” but that we did not provide any further guidance on when that claim
for damages is available. Bauserman (On Remand), 330 Mich App at 560.
The Court of Appeals followed its general practice with state constitutional torts by
first asking whether “ ‘an official policy or custom caused a person to be deprived of [state]
constitutional rights,’ ” id. at 561 (alteration in original), quoting Carlton v Dep’t of
Corrections, 215 Mich App 490, 505; 546 NW2d 671 (1996), and it then looked to Justice
BOYLE’s partial concurrence in Smith to determine whether damages were available,
Bauserman (On Remand), 330 Mich App at 561-562, citing Smith, 428 Mich at 648-652(BOYLE, J., concurring in part and dissenting in part). The Court of Appeals concluded
that the alleged violations arose from actions taken by state actors pursuant to a government
policy and that they could be “aptly characterized as an established practice of state
government officials such that [they] amount[] to a custom supported by the force of law.”
Bauserman (On Remand), 330 Mich App at 566. Weighing the factors offered by Justice
BOYLE’s partial concurrence, the Court of Appeals concluded that damages were available
as a remedy for the due-process deprivations plaintiffs alleged. Id. at 576.
Defendant sought leave to appeal in this Court, and we scheduled oral argument on
the application, instructing the parties to address “whether the appellees have alleged
6
cognizable constitutional tort claims allowing them to recover a judicially inferred damages
remedy.” Bauserman v Unemployment Ins Agency, 506 Mich 965 (2020).
II. STANDARDS OF REVIEW
The decision before us for review is whether plaintiffs have failed to state a claim
under MCR 2.116(C)(8). “A motion under MCR 2.116(C)(8) tests the legal sufficiency of
a claim based on the factual allegations in the complaint.” El-Khalil v Oakwood
Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). For purposes of this review,
we accept all factual allegations in the complaint as true. Id. at 160. We review de novo a
trial court’s decisions on motions for summary disposition. Id. at 159. We also review de
novo questions of constitutional law. Winkler v Marist Fathers of Detroit, Inc, 500 Mich
327, 333; 901 NW2d 566 (2017).
III. ANALYSIS
The recognition and redress of constitutional violations are quintessentially judicial
functions, required of us by the Separation of Powers Clause. See Const 1963, art 3, § 2.
Our Court maintains primacy in interpreting the Constitution. However, when the
Constitution vests the Legislature with this authority and responsibility, our authority is
proportionately lessened. Further, while the Legislature cannot trump the Constitution
itself, the Legislature may implement a remedial scheme that provides a means of
vindicating the constitutional right at a level equal to a remedy this Court could afford. In
those circumstances, we would be unlikely to duplicate the Legislature’s efforts. But
absent either of those conditions, this Court retains the authority—indeed the duty—to
vindicate the rights guaranteed by our Constitution. That includes recognizing causes of
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action seeking money damages. Therefore, money damages are an available remedy for
constitutional torts unless (1) the Constitution has delegated to another branch of
government the obligation to enforce the constitutional right at issue, see Lewis v State,
464 Mich 781, 787; 629 NW2d 868 (2001) (stating that a cause of action for damages
cannot be implied by the Constitution when the text of the Constitution instead vests
authority in the Legislature to determine the remedies available), or (2) another branch of
government has provided a remedy that we consider adequate, see Mays v Governor, 506
Mich 157, 197-198; 954 NW2d 139 (2020) (plurality opinion by BERNSTEIN, J.)
(concluding that there was no sufficient alternative remedy—except by bringing a
constitutional-tort claim—to recover money damages for the plaintiffs’ claim of injury to
bodily integrity).
A. SMITH AND MAYS
Though the question of whether violations of our Constitution are compensable
through actions seeking monetary damages has been posed to us before, we have not
previously found consensus. In Smith we produced several opinions, but our holdings were
limited. Ultimately, four Justices agreed that governmental immunity was not a defense to
allegations of constitutional torts and that damages may be recognized in appropriate cases.
Smith, 428 Mich at 544.
In a concurring opinion, Justice BRICKLEY, joined by Justice RILEY, cataloged the
ebb and flow of the United States Supreme Court’s decisions regarding federal
constitutional torts, starting with Bivens. Id. at 612-626 (BRICKLEY, J., concurring). He
then opined that he would have declined to recognize a remedy for the plaintiffs in the
8
Smith cases. Id. at 626-636. One plaintiff, Jack Smith, who had been confined in a state
psychiatric hospital for nearly 50 years, sought relief under 1908 Const, art 2, §§ 1 and 16
for the confinement. Id. at 551-552. The other plaintiff, Ray Will, was an employee of the
state of Michigan who was denied promotion. Id. at 546-550. He sought relief under Const
1963, art 11, § 5 and art 1, §§ 2 and 17. Id. Justice BRICKLEY would have denied relief to
plaintiff Smith, in part, because the Constitution he relied on was no longer in effect, and
so plaintiff Smith was asking for a novel remedy only available to him. Id. at 626-632.
Justice BRICKLEY also saw plaintiff Smith’s argument as grounded in Bivens itself, and he
found several ways to distinguish plaintiff Smith’s facts from those in Bivens. Id. Plaintiff
Will did not rely on Bivens but on the existence of a “ ‘cumulative judicial remedy.’ ” Id.
at 633-636 (citations omitted). Justice BRICKLEY did not address this argument because
he considered it to be unpreserved. Id.
Also concurring, Justice BOYLE, joined by Justice M. CAVANAGH, agreed that
plaintiff Will’s argument was unpreserved. Id. at 637 (BOYLE, J., concurring in part and
dissenting in part). But she would have remanded plaintiff Smith’s case, writing separately
to emphasize that allegations of state constitutional torts avoid governmental immunity.
Id. at 637-638. She opined, “It is so basic as to require no citation that the constitution is
the fundamental law to which all other laws must conform.” Id. at 640. With regard to
statutory governmental immunity, she noted that all statutes should be construed to avoid
constitutional invalidity. Id. at 641. Given that understanding, she concluded, “The idea
that our Legislature would indirectly seek to ‘approve’ acts by the state which violate the
state constitution by cloaking such behavior with statutory immunity is too far-fetched to
infer” from the statute. Id. Considering common-law sovereign immunity, she noted the
9
concept had been abrogated in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512(1976), but even absent the abrogation, “[t]he 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.” Smith, 428 Mich at 641-642 (BOYLE, J., concurring in part and
dissenting in part). Relying on “public policy concerns,” she would have limited liability
to instances in which the action of the state’s agent was implementing a policy or custom.
Id. at 642-644. She also thought the remedy of damages was generally available. Id. at
644-648. However, she thought whether to afford a remedy in any particular case might
turn on several factors: “(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.” Mays, 506 Mich at
196 (plurality opinion by BERNSTEIN, J.), citing Smith, 428 Mich at 648-652 (BOYLE, J.
concurring in part and dissenting in part).
Justice ARCHER, joined by Justice LEVIN, started his analysis by reasoning that any
intentional tort, whether constitutional in nature or not, is not barred by governmental
immunity. Smith, 428 Mich at 657 (ARCHER, J., dissenting). He would not have limited
the scope of cognizable constitutional torts to those occurring by virtue of governmental
custom or policy. Id. at 658.
After Smith, the Court of Appeals repeatedly cited that fractured opinion for the
proposition that immunity is not available to the state for violating rights guaranteed by the
Michigan Constitution. See Mays, 506 Mich at 190-191 (plurality opinion by BERNSTEIN,
10
J.) (collecting cases). We did not return to the question of what remedies are available for
constitutional torts until Mays, when we evenly split over whether to recognize a damages
remedy for the alleged constitutional violations there. See Mays, 506 Mich 157. Though
the Court of Appeals has frequently cited Justice BOYLE’s partial concurrence in Smith, we
could not reach a consensus on what analysis should be controlling. See Mays, 506 Mich
at 217 (MCCORMACK, C.J., concurring) (“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.”); Mays, 506 Mich at 263 (VIVIANO, J., concurring in part and
dissenting in part) (“I question whether Smith was correctly decided on this point, and I
would be willing to reconsider Smith in an appropriate future case.). Now, we face the
question once again.
B. CITIZENS RELY ON COURTS TO PROTECT AND VINDICATE
CONSTITUTIONAL RIGHTS
Article 1 of our Constitution is titled “Declaration of Rights.” Because it
“guarantees the civil and political integrity [and] the freedom and independence of our
citizens,” the Declaration of Rights “is the bedrock upon which all else in the constitution
may be built.” 1 Official Record, Constitutional Convention 1961, p 106 (remarks of
Governor John B. Swainson). In crafting our current Constitution, the Declaration of
Rights was moved into the first article because it is so fundamental to representative
government that it “sets up the basic legal guideposts for [its] implementation and
enforcement . . . .” 1 Official Record, Constitutional Convention 1961, p 466.
11
One way to think of a right is in terms of the correlative duty it imposes on another
to act or refrain from acting for the benefit of the right-holder. See Hohfeld, Fundamental
Legal Conceptions (New Haven: Yale University Press, 1919), pp 35-38. Thought of in
this way, a right must have a remedy. If not, it is not a right at all but only “a voluntary
obligation that a person can fulfill or not at his whim,” or merely “a hope or a wish.”
Zeigler, Rights Require Remedies: A New Approach to the Enforcement of Rights in the
Federal Courts, 38 Hastings L J 665, 678 (1987). This understanding of rights is as old as
our republic:
It is essential to the idea of a law, that it be attended with a sanction; or, in
other words, a penalty or punishment for disobedience. If there be no penalty
annexed to disobedience, the resolutions or commands which pretend to be
laws will in fact amount to nothing more than advice or recommendation.
[The Federalist No. 15 (Hamilton) (Cooke ed, 1961), p 95.][2]
Said another way, “[l]egal obligations that exist but cannot be enforced are ghosts that are
seen in the law but that are elusive to the grasp.” The Western Maid, 257 US 419, 433; 42
2
Or, even older:
Under the common law of England, where individual rights . . . were
preserved by a fundamental document (e.g., the Magna Carta), a violation of
those rights generally could be remedied by a traditional action for damages.
The violation of the constitutional right was viewed as a trespass, giving rise
to a trespass action. [Widgeon v Eastern Shore Hosp Ctr, 300 Md 520, 525-
527; 479 A2d 921 (1984), discussing Wilkes v Wood, 98 Eng Rep 489;
Lofft’s 1 (1763), Huckle v Money, 95 Eng Rep 768; 2 Wils 205 (1763), and
Entick v Carrington, 19 How St Tr 1029 (1765).]
See also Moresi v Louisiana, 567 So 2d 1081, 1092 (La, 1990); Wurman, Qualified
Immunity and Statutory Construction, 37 Seattle U Law Rev 939, 987 (2014) (“[T]he
common law expected officers to be mulcted in damages for their errors in judgment. Some
courts explicitly stated that the law expected that officers would be grievously punished
for such errors.”).
12
S Ct 159; 66 L Ed 299 (1922). If our Constitution is to function, then the fundamental
rights it guarantees must be enforceable. Our basic rights cannot be mere ethereal hopes if
they are to serve as the bedrock of our government.
This Court has not only the authority, but also the primary responsibility of
interpreting and enforcing our Constitution. “ ‘To adjudicate upon and protect the rights
and interests of individual citizens, and to that end to construe and apply the laws, is the
peculiar province of the judicial department.’ ” Johnson v Kramer Bros Freight Lines, Inc,
357 Mich 254, 258; 98 NW2d 586 (1959), quoting Cooley, Constitutional Limitations
(7th ed), p 132. The judiciary “has the legitimate authority, in the exercise of the well-
established duty of judicial review, to evaluate governmental action to determine if it is
consistent with” the Constitution. Sharp v Lansing, 464 Mich 792, 802; 629 NW2d 873(2001). This is a first principle, inherent in our tripartite separation of powers. A “major
function[]” of the judiciary is to “guarantee[]” the rights promised in our Constitution. 2
Official Record, Constitutional Convention 1961, p 2196. If the rights guaranteed in our
Constitution are to be more than words on paper, then they must be enforceable. 3 And if
3
Justice VIVIANO quotes at length from People ex rel Sutherland v Governor, 29 Mich 320(1874), for the proposition that “ ‘there are a great many’ ” cases involving rights without
a remedy. There, we noted that, at times, a jury might reach a wrong verdict, or a judge
might make an error, or the Legislature could seat someone who was not duly elected, or
the Governor might refuse to pardon someone who had conclusively demonstrated that
they were wrongfully convicted. Id. at 330. The fact that there may be nonjusticiable
questions courts cannot decide and that the judicial process will, at times, reach incorrect
results does not imply that courts are without authority to enforce the Constitution, and
Sutherland said nothing of the kind.
13
the rights guaranteed in our Constitution are to be enforceable, then enforcement must fall
to us, absent an explicit constitutional provision limiting our authority in this regard.
We agree with the Smith majority in this regard: “A claim for damages against the
state arising from violation by the state of the Michigan Constitution may be recognized in
appropriate cases.” Smith, at 428 Mich at 544. And in doing so, both then in Smith and
here today, we are not an outlier. State courts recognizing private causes of action for state
constitutional violations is nothing new. See Bull v Armstrong, 254 Ala 390; 48 So 2d 467
(1950) (recognizing a private cause of action for an illegal warrantless search in violation
of Alabama’s constitution); Mayes v Till, 266 So 2d 578 (Miss, 1972) (recognizing a
private cause of action for an illegal warrantless search in violation of Mississippi’s
constitution). By the time the United States Supreme Court announced its decision in
Bivens, the foundation for state courts to recognize private causes of action for
constitutional violations was already ingrained in the American conception of government.
See Widgeon, 300 Md at 535 (“[T]here is no need to imply a new right of action because,
under the common law, there already exists an action for damages to remedy violations of
constitutional rights.”).
Bivens was somewhat novel in that it recognized—for the first time—a cause of
action against federal agents for violation of federal constitutional rights. But the Court
was clear that the path it traveled had always been open, explicitly stating that courts had
always had the authority to remedy violations of constitutional harms: “[I]t has been the
rule from the beginning that courts will be alert to adjust their remedies so as to grant the
necessary relief.” Bivens, 403 US at 392 (quotation marks and citation omitted). The
Bivens Court did not think it was doing anything revolutionary but, rather, said the notion
14
that constitutional violations could be redressed with monetary compensation “should
hardly seem a surprising proposition.” Id. at 395.
Since Bivens, sister courts in other states have likewise concluded that they bear the
duty of vindicating the rights guaranteed in their constitutions. “It is the state judiciary that
has the responsibility to protect the state constitutional rights of the citizens; this obligation
to protect the fundamental rights of individuals is as old as the State.” Corum v Univ of
North Carolina, 330 NC 761, 783; 413 SE2d 276(1992). “It is the state judiciary that has
the responsibility to protect the state constitutional rights of the citizens.” Godfrey v Iowa,
898 NW2d 844, 865 (Iowa, 2017). “The power of the Court to enforce rights recognized
by the New Jersey Constitution, even in the complete absence of implementing legislation,
is clear.” King v S Jersey Nat’l Bank, 66 NJ 161, 177; 330 A2d 1 (1974), citing Marbury
v Madison, 5 US (1 Cranch) 137, 163; 2 L Ed 60 (1803). See also Gay Law Students Ass’n
v Pacific Tel & Tel Co, 24 Cal 3d 458, 475; 595 P2d 592; 156 Cal Rptr 14 (1979)
(recognizing a cause of action for monetary damages for a violation of the state’s Equal
Protection Clause); Newell v Elgin, 34 Ill App 3d 719, 722-725; 340 NE2d 344 (1976)
(recognizing a cause of action for monetary damages for a violation of the state’s illegal-
seizure protection); Moresi v Louisiana, 567 So 2d 1081; 1091-1093 (La, 1990)
(recognizing a cause of action for monetary damages for a violation of the state’s privacy
protection); Widgeon, 300 Md at 525-534 (recognizing a cause of action for monetary
damages for a violation of the state’s search-and-seizure protection). But see Godfrey, 898
NW2d at 856-857 (collecting cases and describing courts as “nearly equally divided”).
15
These courts frequently refer to principles relied on by the Bivens Court and to 4
Restatement Torts, 2d, § 874A, comment a, p 301. 4
The Bivens Court explained how constitutional torts hold the potential for greater
harm than private torts: “An agent acting—albeit unconstitutionally—in the name of the
United States possesses a far greater capacity for harm than an individual trespasser
exercising no authority other than his own.” Bivens, 403 US at 392. Other courts have
continued to make similar observations: “[T]here is a great distinction between wrongs
committed by one private individual against another and wrongs committed under authority
of the state.” Dorwart v Caraway, 312 Mont 1, 16; 2002 MT 240; 58 P3d 128 (2002). The
purpose of codifications of rights in the federal Constitution, our Constitution, and the
constitutions of other states is to protect against these unique and dangerous
encroachments. Corum, 330 NC at 782-783; see also Godfrey, 898 NW2d at 876-877;
Binette, 244 Conn at 43. That danger is exemplified here. Plaintiffs allege that when they
were rightfully eligible for unemployment benefits—meant to be a hand up during a
financially difficult and fragile juncture—they were accused of fraud and assessed
staggering penalties without notice or any meaningful opportunity to be heard. 5
4
4 Restatement, p 301 states: “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.” Comment a specifies that this
notion includes constitutional provisions.
5
It has been estimated that, between 2013 and 2015, approximately 40,000 people in
Michigan were wrongfully accused of unemployment fraud as a result of the lack of due
16
To remedy these types of harms, the Bivens Court saw nothing extraordinary about
the availability of monetary damages: “Historically, damages have been regarded as the
ordinary remedy for an invasion of personal interests in liberty.” Bivens, 403 US at 395,
citing Nixon v Condon, 286 US 73; 52 S Ct 484; 76 L Ed 984 (1932); Nixon v Herndon,
273 US 536, 540; 47 S Ct 446; 71 L Ed 759 (1927); Swafford v Templeton, 185 US 487;
22 S Ct 783; 46 L Ed 1005 (1902); Wiley v Sinkler, 179 US 58; 21 S Ct 17; 45 L Ed 84(1900); Landynski, Search and Seizure and the Supreme Court, pp 28 et seq. (1966);
Lasson, History and Development of the Fourth Amendment to the United States
Constitution, pp 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional
Legality and the Law of Torts in Bell v Hood, 117 U Pa L Rev 1, 8-33 (1968); cf. West v
Cabell, 153 US 78; 14 S Ct 752; 38 L Ed 643 (1894); Lammon v Feusier, 111 US 17; 4 S
Ct 286; 28 L Ed 337 (1884). Rejecting alternate framings, the Bivens Court saw the
question before it as a simple one—whether the petitioner was “entitled to redress his injury
through a particular remedial mechanism normally available in the federal courts.” Bivens,
403 US at 397. The answer was axiomatic: “ ‘The very essence of civil liberty certainly
consists in the right of every individual to claim the protection of the laws, whenever he
process alleged by plaintiffs. De La Garza, States’ Automated Systems are Trapping
Citizens in Bureaucratic Nightmares With Their Lives On the Line, Time Magazine
(May 28, 2020) (accessed
March 4, 2022) [https://perma.cc/9THC-9HL3]. In addition, a study conducted by the
Agency concluded that, during this same period, approximately 93% of the automated
system’s fraud determinations were incorrect. Felton, Michigan Unemployment Agency
Made 20,000 False Fraud Allegations – Report, The Guardian (December 18, 2016)
(accessed March 4, 2022) [https://perma.cc/4LEH-8KAZ].
17
receives an injury.’ ” Id., quoting Marbury, 5 US (1 Cranch) at 163. Other courts have
shared that view. “The availability of damages at law is thus an ordinary remedy for
violation of constitutional provisions, not some new-fangled innovation.” Godfrey, 898
NW2d at 868. We share this view and make the unremarkable observation that damages
are an available remedy for the state’s constitutional violations. “This Court is ultimately
responsible for enforcing our state’s Constitution, and remedies are how we do that.”
Mays, 506 Mich at 215 (MCCORMACK, C.J., concurring).
One final point about Bivens. Defendant argues that the United States Supreme
Court’s recent treatment of Bivens requires this Court to refrain from recognizing causes
of action for constitutional torts. We disagree. This Court has already debated the
continued vitality of Bivens and how federal constitutional torts differ from state
constitutional torts. See Mays, 506 Mich at 214-224 (MCCORMACK, C.J., concurring);
Mays, 506 Mich at 245-263 (VIVIANO, J., concurring in part and dissenting in part).
Whatever the relative merits of those positions, they are beside the point. Our holding
today does not rely on Bivens at all, but on the authorities that Bivens discussed and that so
many other courts have discussed since then. Bivens is famous and often cited, and with
good reason. It is an eloquent explanation of the judiciary’s duty to enforce constitutional
guarantees and its authority to use available remedies to that end. But Bivens is just that—
a discussion of the authority, not the authority itself. The plaintiffs’ cause of action is
created by our state Constitution, not by any court. 6 Our holding today is grounded in the
6
See Godfrey, 898 NW2d at 866 (“As a rhetorical device, the defendants suggest that
Bivens claims for Iowa constitutional violations amount to a ‘new cause of action.’ But we
18
constitutional rights relied on by plaintiffs as well as our authority and duty to say what the
law is. See Marbury, 5 US (1 Cranch) at 177. These authorities remain undisturbed.
Justice VIVIANO responds only in passing to the core idea that a right requires a
remedy. He briefly and puzzlingly acknowledges Marbury, but his takeaway is that the
Court could not enforce a remedy for William Marbury because it did not have jurisdiction.
That is an accurate statement about Marbury, and if we similarly lacked jurisdiction in this
matter, we would have no authority to enforce a remedy. Of course, we do have jurisdiction
here. 7
Further, Justice VIVIANO’S belief would prove far too much. He believes that
constitutional rights can exist without remedies and, if a remedy is to exist, the Constitution
must explicitly provide it. But of the 27 sections of the Declaration of Rights, only a
handful mention remedies at all. 8 Most of the guarantees of the Declaration of Rights are
not enacted in statute, but we enforce them nonetheless through whatever remedy is
face an old problem, not a new problem. The old problem is whether courts have the power
to provide an appropriate remedy for constitutional wrongs.”).
7
If Justice VIVIANO means to suggest that Marbury is dicta on this point, he is technically
correct. Nonetheless, Marbury’s recognition of the judiciary’s authority to say what the
law is has clearly been widely followed.
8
Const 1963, art 1, § 2 delegates authority for enforcing the right to equal protection of the
laws to the Legislature. Const 1963, art 1, § 11 addresses available remedies for a violation
of the protection from unreasonable searches and seizures only in that it limits application
of the exclusionary rule, though of course it cannot impact the exclusionary rule’s
enforcement of US Const, Am IV. Const 1963, art 1, § 15 provides a specific remedy in
the event a criminal defendant is denied bail and trial has not commenced within 90 days.
Const 1963, art 1, § 24 indicates the Legislature may enact its provisions. Const 1963,
art 1, § 26 also addresses remedies.
19
appropriate for a violation. Justice VIVIANO distinguishes causes of action for
constitutional torts because the legislative power “ ‘encompasses the power to create
causes of action.’ ” Post at 7, quoting Mays, 506 Mich at 259 (VIVIANO, J., concurring in
part and dissenting in part). Generally, enforcing constitutional rights through injunctive
relief is uncontroversial, see, e.g., Brown v Bd of Ed of Topeka, 347 US 483, 486 n 1; 74 S
Ct 686; 98 L Ed 873 (1954), and Brown v Bd of Ed of Topeka, 349 US 294; 75 S Ct 753;
99 L Ed 1083 (1955), despite the lack of an explicit constitutional authorization for such a
cause of action. So the problem is not really that it is a legislative function to “create causes
of action”——instead, the problem appears to be that the remedy is in the form of money
damages. Justice VIVIANO doesn’t offer any specific reason why this remedy requires
explicit authorization while others, such as injunctive relief, do not, aside from his belief
that “[t]he creation of that liability, dependent upon policy considerations that the judiciary
is institutionally ill-suited to address, is a task that falls within the legislative sphere.”
We agree with Justice VIVIANO, actually, that judges should not create liability
based on policy considerations. We are doing nothing of the kind. The Constitution poses
restrictions on the state for the protection of Michigan citizens, and if the state harms its
citizens in violation of those prohibitions, that is what creates liability. Justice VIVIANO
would err in the opposite direction; he would excuse the state’s liability based on his own
policy concern—that a violation of constitutional rights should not be redressed by money
damages. The core principle that guides our reasoning is that a right must be enforceable;
otherwise, it is not right at all but a mere hope. It merits repeating that the fundamental
rights our Constitution guarantees are “the bedrock upon which all else in the constitution
20
may be built.” 1 Official Record, Constitutional Convention 1961, p 106 (remarks of
Governor John B. Swainson). Without them, there is nothing.
C. LEGISLATIVE SILENCE DOES NOT DIVEST COURTS OF THEIR AUTHORITY
OR RESPONSIBILITY
Even against this long history of courts enforcing constitutional protections by
providing remedies for constitutional violations, the Agency argues that recognizing a
cause of action is beyond our authority and that establishing a mechanism to redress the
alleged violations of plaintiffs’ rights falls to the Legislature. We disagree.
Under our Constitution, “the judicial power of the State is vested exclusively in one
court of justice . . . .” 9 Const 1963, art 6, § 1. Unlike federal courts, which are limited to
powers specifically enumerated in the United States Constitution, this Court retains all
judicial power not ceded to the federal government. Lansing Sch Ed Ass’n v Lansing Bd
of Ed, 487 Mich 349, 362; 792 NW2d 686 (2010). Similarly, the legislative power of the
state is vested in the Senate and House of Representatives—collectively, the Legislature.
Const 1963, art 4, § 1. Each branch retains “the whole of such power . . . except as it may
be restricted in the same instrument.” Washington-Detroit Theatre Co v Moore, 249 Mich
673, 680; 229 NW 618 (1930). “The legislative power we understand to be the authority,
under the Constitution, to make laws, and to alter and repeal them.” Cooley, p 109.
What plaintiffs ask of us is not to make new law under the Constitution but, rather,
to enforce the Constitution itself. As the United States Supreme Court has noted, “the
9
This grant is limited only by the Const 1963, art 1, § 6 requirement that this Court’s
decisions shall be in writing and by Const 1963, art 5, § 2, which addresses the Independent
Citizens Redistricting Commission.
21
judiciary has a particular responsibility to assure the vindication of constitutional
interests . . . .” Bivens, 403 US at 407 (Harlan, J., concurring). In addressing the argument
that vindication of constitutional rights should be left to the legislative branch, one of our
sister courts reasoned, “It would be ironic indeed if the enforcement of individual rights
and liberties in the Iowa Constitution, designed to ensure that basic rights and liberties were
immune from majoritarian impulses, were dependent on legislative action for
enforcement.” Godfrey, 898 NW2d at 865. Similarly, “[t]he very purpose of the
Declaration of Rights is to ensure that the violation of these rights is never permitted by
anyone who might be invested under the Constitution with the powers of the State.”
Corum, 330 NC at 783.
Relying on McCahan v Brennan, 492 Mich 730, 736; 822 NW2d 747 (2012), the
Agency argues that the Legislature holds the authority to decide whether the state can be
sued, and if so, the extent of any liability. The Agency notes that under Const 1963, art 3,
§ 2, no person exercising the power of one branch shall exercise the power belonging to
another branch. The Agency also criticizes Justice BOYLE’s partial concurrence in Smith
for discussing policy concerns while inferring a damages remedy. The Agency asserts
these considerations are better left to the Legislature.
The fatal flaw in these arguments is that they assume their own conclusions. Our
Constitution provides for a separation of powers generally, and specifically in Const 1963,
art 3, § 2. But that observation does nothing to define the boundaries of the authority of
the branches. McCahan dealt with the governmental tort liability act (GTLA), MCL
691.1401 et seq. The issue there was interpretation of the notice requirement found in the
GTLA. McCahan and our other cases dealing with the GTLA did not involve
22
constitutional torts but, instead, dealt with conventional torts. The scope of the
Legislature’s authority to regulate tort liability created by statute has no bearing on whether
the Legislature has authority to restrict rights codified in the Constitution, let alone whether
those rights remain fallow without legislative enactment. These authorities discuss the
Legislature’s authority within its purview, but they do not explore the boundaries of that
purview.
There are instances in which the Constitution specifically tasks the Legislature with
implementing the rights it affords. An example is Const 1963, art 1, § 2, which concludes
by stating, “The legislature shall implement this section by appropriate legislation.”
Therefore, the Constitution delegates the construction of the remedy for violation of Const
1963, art 1, § 2 to the Legislature. We have said as much before:
On its face, the implementation power of Const 1963, art 1, § 2 is
given to the Legislature. Because of this, for this Court to implement Const
1963, art 1, § 2 by allowing, for example, money damages, would be to
arrogate this power given expressly to the Legislature to this Court. Under
no recognizable theory of disciplined jurisprudence do we have such power.
[Lewis v State, 464 Mich 781, 787; 629 NW2d 868 (2001).]
But in the absence of such a specific delegation, constitutional rights must still be
enforceable. As we have discussed, interpreting the Constitution and determining the
scope of the rights it affords is the core of our function as the judicial branch. We know
“[i]t is emphatically the province and duty of the judicial department to say what the law
is.” Marbury, 5 US (1 Cranch) at 177. Interestingly, while criticizing Justice BOYLE on
the one hand for considering public policy in her analysis, the Agency admits that we must
analyze “ ‘competing policies, goals, and priorities[.]’ ” (Quoting Carlson v Green, 446
US 14, 36; 100 S Ct 1468; 64 L Ed 2d 15 (1980) (Rehnquist, J., dissenting).) As to the
23
scope of the state’s liabilities, we agree that weighing policy considerations to pick and
choose which harms the state should be liable for and to what extent is not within our
purview. But neither is it within the purview of the Legislature. That consideration has
been completed, and those choices are contained within the Constitution. 10 The state is
prohibited from violating the rights the Constitution guarantees. If it does so, it is liable
for the harm it causes. 11
But the Agency’s position is weaker even than if there were some legislative action
in play. As discussed, the Legislature cannot curtail a substantive constitutional right or
limit the remedies available to vindicate that right. But the Agency urges us to conclude
that legislative silence on the issue of remedies for a due-process violation under Const
10
To be sure, adhering to the Constitution places a burden on state government. In
recognition of that fact, our Constitution appears to reflect policy considerations. For
example, Const 1963, art 1, § 2 provides that “[n]o person shall be denied the equal
protection of the laws; nor shall any person be denied the enjoyment of his civil or political
rights or be discriminated against in the exercise thereof because of religion, race, color or
national origin,” but also that “[t]he legislature shall implement this section by appropriate
legislation.” Const 1963, art 1, § 11 protects against government searches and seizures in
much the same way as US Const, Am IV. However, Const 1963, art 1, § 11 limits
application of the exclusionary rule in criminal proceedings, making a different choice than
under federal law. Const 1963, art 1, § 14 provides for the right to a jury trial, but allows
for 10 out of 12 jurors to reach a verdict in a civil case. Other rights are protected without
qualification. Our role is not to evaluate the choices reflected in the Constitution. Our role
is to respect and enforce them.
11
See In re Town Highway No 20, 191 Vt 231, 248-249; 2012 VT 17; 45 A3d 54 (2012)
(“Thus, the rights enumerated within our Constitution provide no less authority in
supporting a cause of action than the rights set out in our statutes or in this Court’s
precedent, presuming those constitutional rights are found to be self-executing. Indeed,
‘[t]o deprive individuals of a means by which to vindicate their constitutional rights would
negate the will of the people in ratifying the constitution, and neither this Court nor the
Legislature has the power to do so.’ ”) (alteration in original), quoting Shields v Gerhart,
163 Vt 219, 223; 658 A 2d 924 (1995).
24
1963, art 1, § 17 somehow signals the ratifiers’ intent to preclude any mechanism of
enforcement. Under this view, constitutional guarantees that the Legislature has not
addressed would be reduced from rights to mere hopes, or as Justice Holmes said, to
“ghosts that are seen in the law . . . .” The Western Maid, 257 US at 433. This is not our
view. See King v S Jersey Nat’l Bank, 66 NJ 161, 177; 330 A 2d 1 (1974) (“Just as the
Legislature cannot abridge constitutional rights by its enactments, it cannot curtail them
through its silence, and the judicial obligation to protect the fundamental rights of
individuals is as old as this country.”). If the Legislature has already provided an adequate
mechanism to remedy a constitutional tort, this Court is not required to duplicate the effort.
However, we emphasize that the Legislature’s alternative must be at least as protective of
a particular constitutional right as a judicially recognized cause of action and must include
any remedy necessary to address the harm caused. To be adequate, the legislative remedy
should be at least as protective of constitutional rights as a judicially recognized remedy
would be.
D. THE CONTINUED VIABILITY OF JUSTICE BOYLE’S PARTIAL
CONCURRENCE IN SMITH
While we agree with the Smith majority that a claim for damages against the state
arising from a violation of the Michigan Constitution may be recognized in appropriate
cases, Smith, 428 Mich at 544, we part ways with Justice BOYLE as to how to determine an
“appropriate case.” As already discussed, in light of this Court’s inherent judicial authority
and respect for the separation of powers, we believe that a cause of action exists except in
two specific circumstances: (1) when the Constitution has delegated to another branch of
government the obligation to enforce the constitutional right at issue or (2) when another
25
branch of government has provided a remedy that we consider adequate. While Justice
BOYLE also recognized these two exceptions, her partial concurrence suggests that she
would have also recognized additional exceptions. Justice BOYLE would presumably have
declined to recognize a claim for damages where the existence and clarity of the
constitutional violation at issue is unclear and where the degree of specificity of the
constitutional protection is unclear. Id. at 652 (BOYLE, J., concurring in part and dissenting
in part). But while these concerns may caution against imposing liability on the state for
violation of a particular constitutional provision under particular factual situations, they
speak to whether a right exists or has been violated, not to whether there is a constitutional-
damages remedy for that violation. Justice BOYLE would also “consider the text, history,
and previous interpretations of the specific provision for guidance on the propriety of a
judicially inferred damage remedy.” Id. at 650. But, as discussed previously, the only
concern for the “propriety” of recognizing a damages action should be derived from this
Court’s inherent judicial authority and the language of the Constitution itself—such as
when the Constitution specifically delegates to another branch of government the
obligation to enforce the constitutional right. Otherwise, this Court should not be in the
business of determining the “propriety” of recognizing a constitutional-damages claim.
Likewise, Justice BOYLE’s consideration of “various other factors, dependent upon the
specific facts and circumstances of a given case,” id. at 651, is unworkably vague. On this
point we agree with the Agency that policy concerns about whether and when to recognize
a constitutional-tort remedy are better left to other branches of government. But when the
Constitution itself has not delegated to the other branches the authority to weigh those
policy concerns, or when the other branches have not stepped in to afford an adequate
26
alternative remedy, our inherent judicial authority requires us to afford a remedy for all
constitutional violations, not just those that we think are wise or justified.
One final, but important, point of disagreement with Justice BOYLE’s partial
concurrence in Smith: we do not limit the standard of liability in a constitutional-damages
claim to a direct standard of liability. Justice BOYLE opined that, consistent with Monell v
New York City Dep’t of Social Servs, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978),
the state’s liability for constitutional violations should arise only when the state is acting
pursuant to a custom or policy that violates the constitution. In other words, the state cannot
be held vicariously liable for the constitutional violations of its employees or agents. Smith,
428 Mich at 642-643 (BOYLE, J., concurring in part and dissenting in part). But, in Monell,
the United States Supreme Court was faced with the question of whether, and when, an
entity, such as a municipality, may be held liable under a specific statutory provision, 42
USC 1983, that imposes liability only on “persons.” Monell, 436 US at 690-691. The
Court’s adoption of the direct custom or policy theory and rejection of a respondeat
superior theory of liability under the statute was, in large part, based on the intent of
Congress in adopting the specific statute at issue, the Civil Rights Act of 1871. Id. at 665-
689. Whatever the merit of the policy concerns considered by Congress in adopting the
statute and considered by the Supreme Court in deciding the standard of liability under that
statute, we are not in a position to vindicate those policy concerns by incorporating the
same reasoning into damages remedies under Michigan’s Constitution. While we respect,
and may even share, some of Justice BOYLE’s “prudential concerns” favoring a direct
standard of liability over respondeat superior liability, our obligation is to interpret the
Constitution. Weighing policy concerns is the work of other branches in crafting, if they
27
choose, a different, albeit adequate, remedy for constitutional violations. 12 Absent clear
language in the Constitution or a legislatively crafted remedy, we hold that people who
have been deprived of a constitutional right deserve to seek redress through the courts,
regardless of whether their harm was inflicted pursuant to state custom or policy. 13
12
The oft-cited prudential concerns favoring direct liability over respondeat superior
liability are not beyond debate. For example, some Courts and legal scholars have opined
that imposing direct liability would better deter future constitutional violations. Smith, 428
Mich at 643-644 (BOYLE, J., concurring in part and dissenting in part), citing Note,
Rethinking sovereign immunity after Bivens, 57 NYU L R 597, 637 (1982). But others
believe that respondeat superior liability affords equal, if not better, opportunities to
prevent future harm because it incentivizes the state to train, supervise, and discipline its
employees and agents to avoid violations. See Brown v New York, 89 NY2d 172, 194; 674
NE2d 1129 (1996).
13
Justice VIVIANO worries our decision “represents a massive and amorphous expansion
of constitutional tort liability.” Of course, there is nothing new about suing the state for
monetary damages. That has been happening since Smith, though the Court of Appeals has
generally employed Justice BOYLE’S analysis. Whatever the difference in outcomes
between her analysis and ours, it simply is not our role to place guardrails on constitutional
rights based on judicial policy preferences. Justice VIVIANO worries that our decision
poses “ ‘dangers to liberty,’ ” but his is the view which would leave fundamental rights
merely recognized, but not redressed. (Citation omitted.) That is an odd way of thinking
about liberty.
Justice VIVIANO mentions liability for cities and villages as well as individuals who
operate public utilities. But our holding is that the state is liable for harms it commits in
violation of the Constitution; whether other entities, such as municipal governments or
individual government actors, can be liable for constitutional torts is not before us, and we
decline to address that question in what would be dictum. Justice VIVIANO also worries
about Const 1963, art 9, § 41, which establishes the Michigan game and fish protection
trust fund, and whether violations of this provision would be grounds for money damages
and if so, to whom; on a similar note, Justice WELCH asserts we should limit our holding
to violations of the Declaration of Rights. Again, we decline to opine on hypothetical cases
not before this Court.
28
IV. APPLICATION
Plaintiffs allege that the Agency violated their due-process rights by seizing their
property without providing them with adequate notice and an opportunity to be heard.
Plaintiffs allege that the Agency systematically and unlawfully intercepted their state and
federal tax refunds, garnished their wages, and forced them to repay unemployment
benefits that they had lawfully received. Plaintiffs allege that the Agency took these actions
(1) without providing proper notice or hearing, (2) without allowing plaintiffs to present
evidence, and (3) by using a computerized system to detect and determine fraud cases that
does not comport with due process. These allegations, if proven, are sufficient to sustain
a constitutional-tort claim for a violation of the Due Process Clause of the Michigan
Constitution, Const 1963, art 1, § 17, which provides as follows:
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. The right of all individuals, firms, corporations and voluntary
associations to fair and just treatment in the course of legislative and
executive investigations and hearings shall not be infringed.
Nothing in the language of this provision, or any other constitutional provision, confers
authority on another branch of government to provide a remedy for violation of this right.
Accordingly, the first exception to recognizing a damages action is not met here. In
addition, the Legislature has not enacted a statutory remedy that adequately compensates a
plaintiff for violation of this due-process right, so the second exception is likewise not
present. While the Agency argues that plaintiffs have a remedy in the form of an appeal
under the Michigan Employment Security Act, MCL 421.1 et seq., plaintiffs are not
challenging the administration of the act and this isn’t a “super appeal” from a benefits
29
determination. 14 Rather, this is a tort claim challenging the Agency’s use of MiDAS to
deprive plaintiffs of property without due process of law. There is no remedy available to
vindicate their substantive rights other than an action under the Michigan Constitution.
Administrative agencies don’t have the power to determine constitutional questions or
afford consequential damages. See Dickerson v Warden, Marquette Prison, 99 Mich App
630, 641-642; 298 NW2d 841 (1980). And the state’s sovereign immunity, guaranteed by
the Eleventh Amendment of the United States Constitution, precludes plaintiffs from suing
the state in federal court to remedy a violation of either the Michigan Constitution,
Pennhurst State Sch and Hosp v Halderman, 465 US 89, 121; 104 S Ct 900; 79 L Ed 2d
67 (1984) (“[A] claim that state officials violated state law in carrying out their official
responsibilities is a claim against the State that is protected by the Eleventh Amendment.”),
or a parallel provision of the federal Constitution, Seminole Tribe of Florida v Florida, 517
US 44, 55-56; 116 S Ct 1114; 134 L Ed 2d 252 (1996). Because enforcement of Const
1963, art 1, § 17 has not been delegated to the Legislature and because no other adequate
remedy exists to vindicate the alleged violations of plaintiffs’ rights, we agree that plaintiffs
have alleged a cognizable constitutional-tort claim for which they may recover monetary
damages.
14
Regardless, for some in the plaintiff class such as Mr. Broe, the time to appeal the
Agency’s decisions expired before plaintiffs were aware of the existence of a possible
cause of action because of the alleged due-process violations.
30
V. CONCLUSION
Plaintiffs seek redress of the alleged deprivation of their property without notice or
an opportunity to be heard in violation of Const 1963, art 1, § 17. This Court bears the
authority and ultimate responsibility to enforce our state’s Constitution and to ensure that
rights have remedies. When the language of the Constitution itself does not delegate that
responsibility to another branch of government and when the Legislature has not enacted
an adequate alternate remedy for the constitutional violation, we will recognize and enforce
a monetary-damages remedy. We agree that plaintiffs have alleged a cognizable
constitutional-tort claim for which they may recover money damages, and we agree with
the lower courts that the Agency was properly denied summary disposition. We remand
the case to the Court of Claims for further proceedings not inconsistent with this opinion.
Megan K. Cavanagh
Bridget M. McCormack
Richard H. Bernstein
Elizabeth M. Welch
31
STATE OF MICHIGAN
SUPREME COURT
GRANT BAUSERMAN, KARL
WILLIAMS, and TEDDY BROE, on Behalf
of Themselves and All Others Similarly
Situated,
Plaintiffs-Appellees,
v No. 160813
UNEMPLOYMENT INSURANCE
AGENCY,
Defendant-Appellant.
WELCH, J. (concurring).
Today, a majority of this Court confirms that a party has the ability to directly sue
the state for monetary damages on the basis of an alleged violation of our Constitution. We
have previously recognized these claims and that a remedy for monetary damages exists in
appropriate cases. Smith v Dep’t of Pub Health, 428 Mich 540, 544; 410 NW2d 749 (1987).
When the only way to adequately remedy a constitutional violation is to allow for monetary
damages, then such a remedy will be implied. 1 The majority opinion adopts a framework
1
Coined by Professor Marshall S. Shapo in his article Constitutional Tort: Monroe v. Pape,
and the Frontiers Beyond, 60 Nw U L Rev 277 (1965), the term “constitutional tort” has
evaded a precise definition. See, e.g., Wells, Marshall Shapo’s Constitutional Tort Fifty-
Five Years Later, Nw U L Rev Colloquy (2020), p 257 (describing constitutional torts as
“suits for damages for constitutional violations committed by government officials or the
governments themselves”), available at (accessed July 18, 2022)
[https://perma.cc/QR5H-J83K]; Donoghue & Edelstein, Life After Brown: The Future of
State Constitutional Tort Actions in New York, 42 NYL Sch L Rev 447, 449 n 10 (1998)
(describing a “ ‘state constitutional tort’ to mean any direct civil action for the violation of
that would allow recognition of monetary damages against the state for the violation of any
constitutional right if (1) the constitutional right is self-executing, unless the Constitution
delegates to a different branch of government discretion in implementing that right, and (2)
there is not an adequate alternative remedy. While I agree with the framework and with
the holding that plaintiffs pleaded a valid constitutional tort for monetary damages in this
matter, I write separately for two reasons. First, I would go further than my colleagues and
expressly limit the Court’s recognition of monetary damages for constitutional torts to
claims arising from a violation of a right enumerated in Michigan’s Declaration of Rights,
Const 1963, art 1. Accordingly, while I join the majority opinion, I limit my concurrence
with Part III of the majority opinion to the extent it could be interpreted to apply beyond a
claim under the Declaration of Rights, and I do not join footnote 13 of that opinion to the
extent that it declines to adopt such a limitation. Second, the majority’s “adequate
alternative remedy” requirement limits the “expansion of liability for the state and its
taxpayers” that Justice VIVIANO foretells in his dissent. In other words, constitutional-tort
a state constitutional right, with the caveat that state civil rights litigation, like its federal
counterpart, does not fit neatly into the area of tort law.”).
Generally speaking, the term has been described in academic literature as a direct
private civil cause of action to redress the violation of a state constitutional right by a
government actor, regardless of the remedy. The default remedies to cure the constitutional
violations in such civil actions are often injunctive or declaratory relief, unless some other
remedy is provided in a statute or the constitution itself. The Court’s decision today
concerns a narrower subclass of constitutional torts for which a monetary-damages remedy
will be implied because no other adequate alternative common-law, statutory, or
administrative remedy exists, and it sets forth the general framework for determining when
allowing such a remedy is appropriate.
2
claims are, and will continue to be, rare given that adequate alternative remedies to an
implied monetary-damages remedy exist in most cases.
I. CONSTITUTIONAL TORTS AND THE DECLARATION OF RIGHTS
In Part III of its opinion, the majority has set forth a framework, with which I agree,
for recognizing a constitutional tort for monetary damages. I would, however, go further
than my colleagues and expressly limit our recognition of constitutional-tort actions for
monetary damages to claims based on a violation of the fundamental liberties enumerated
in Michigan’s Declaration of Rights, Const 1963, art 1. My colleagues in the majority do
not consider such a limitation because they “decline to opine on hypothetical cases not
before us.” Ante at 28 n 13. But given that the claim in this matter arises under the
Declaration of Rights, I believe addressing this limitation is appropriate.
Our state Constitution has long contained a distinct Bill or Declaration of Rights. 2
Const 1963, art 1; Const 1908, art 2; Const 1835, art 1. Michigan’s Declaration of Rights
sets forth basic, fundamental individual liberties that are secured to each person in the state.
Additionally, we have previously recognized that “[t]he Michigan Declaration of Rights,
like the federal Bill of Rights, is ‘drawn to restrict governmental conduct and to provide
protection from governmental infringement and excesses . . . .’ ” Sitz v Dep’t of State
2
This fact sets our Constitution apart from its federal counterpart because the federal Bill
of Rights, proposed by our nation’s first congress in 1789, was a series of amendments of
the original federal Constitution. See, e.g., National Archives and Records Administration,
The Bill of Rights: How Did it Happen? (accessed July 13, 2022) [https://perma.cc/GPK7-2NUU];
National Archives and Records Administration, The Bill of Rights: A Transcription
(accessed July 13,
2022) [https://perma.cc/T5XM-66QT].
3
Police, 443 Mich 744, 760; 506 NW2d 209 (1993), quoting Woodland v Citizens Lobby,
423 Mich 188, 204; 378 NW2d 337 (1985). The majority opinion implicitly acknowledges
this through its quotation of statements made by Governor John B. Swainson at the
constitutional convention of 1961, but a fuller quotation of the Governor’s statement is
helpful:
Another of your heavy responsibilities will be review of our
constitutional declaration of rights. As that part of our constitution that
guarantees the civil and political integrity, the freedom and independence of
our citizens, the bill of rights is the bedrock upon which all else in the
constitution may be built. [1 Official Record, Constitutional Convention
1961, p 106 (remarks of Governor John B. Swainson).]
Governor Swainson made similar statements in a letter he provided to the committee
examining and proposing amendments of the Declaration of Rights:
“The drafting of a declaration of rights that will incorporate the
distilled wisdom of the past and provide for the protection of individual rights
emerging from the social and economic ferment of the twentieth century
could very well be the most important and lasting contribution that this
convention can make to the preservation of the democratic ideal.
Other provisions of the fundamental law of the state affect some of us
in our relation to state government and the services it provides for us. But
the rights guaranteed by the declaration of rights affect all of us.
Action by the state to buttress the protection of the individual against
the possible tyrannies of bureaucracy, the exploitation, discrimination,
invasion of privacy, and unequal access to justice will give strong support to
the revitalization of our state.
* * *
In a society that is becoming more highly organized in groups, the
proper expression of these group interests and activities must be harmonized
with the urgent necessity to reassert the doctrine that the essential feature of
democracy remains the statutes of the individual.” [1 Official Record,
Constitutional Convention 1961, pp 400-401 (remarks of Governor John B.
Swainson).]
4
Professor James K. Pollock, chairman of the committee examining the Declaration
of Rights, noted the fundamentals underlying a bill of rights in a statement made on Bill of
Rights Day. Pollock explained, “The basic theory underlying the early bills of rights is a
belief in the rights of individual men and in rights existing in the law of nature independent
of states or their laws, as set forth especially in Locke’s Second Treatise on Government
(1690).” 1 Official Record, Constitutional Convention 1961, p 403 (remarks of James K.
Pollock). Pollock noted that some rights and liberties are so fundamental and
individualized that they must be considered “inalienable” in the sense that their execution
and protection cannot be fully entrusted to the state. Id. In contrast, he noted that other
rights and liberties, such as those associated with creating the operational “ ‘frame’ or form
of government” have long been considered “alienable” to the extent that they can be
entrusted to the state “under proper safeguards for due compensation in the form of just
and effective government[.]” Id. A bill of rights, Pollock explained, is intended to
enumerate the “inalienable rights of the people which they cannot delegate to their
government and upon which the latter is explicitly forbidden ever to infringe.” Id.When the proposed amendments of the Declaration of Rights were presented to the
full body of the convention, the committee recommended movement of the Declaration of
Rights from Article 2 to Article 1. Pollock explained why:
In the committee’s opinion[,] the liberties of the people are so fundamental
to the Michigan constitution and to free representative government generally
that the declaration of rights which establishes the fundamental principles of
liberty and sets up the basic legal guideposts for their implementation and
enforcement, should appear as the first article in the new constitution. In
retaining or altering any present provisions, the committee has carefully
considered the exact language in question, as well as committee intent, with
the purpose of reducing as far as possible the necessity of judicial
5
construction. [1 Official Record, Constitutional Convention 1961, p 466
(remarks of James K. Pollock).]
The substance of the Declaration of Rights was vigorously debated over many weeks at the
constitutional convention, but the core purpose and importance of having a declaration of
rights was widely agreed upon.
The notion that monetary recovery is available for the violation of inalienable
fundamental liberties set forth in our Constitution aligns with the robust public statements
and debate at the constitutional convention of 1961. An untenable situation would arise if
the state could violate an individual’s fundamental, inalienable rights without the
individual having a legal pathway to an adequate remedy. Our fundamental and inalienable
liberties would hardly be fundamental at all without such a remedy.
In light of these considerations, I wholeheartedly agree with the majority that the
liberties enumerated in the Declaration of Rights are fundamental, and “[w]ithout them,
there is nothing.” Ante at 21. But not everything in our Constitution creates a right that is
clearly individualized or inalienable. While Part IV of the majority opinion applies the
newly adopted legal framework to a due process claim, the legal analysis in Part III of the
opinion is broad enough that it could apply to any alleged violation of any provision of our
Constitution, despite the caveats contained in footnote 13. I do not endorse such a broad
ruling, even if implicit, given existing law and the arguments that have been presented in
this case.
Beyond Article 1, much of the balance of our Constitution focuses on the
operational mechanics for state and local government, elections, taxation, and public
employment, as well as other more technical details, as Justice VIVIANO’s dissent
6
acknowledges. These technical details are the alienable rights and liberties described by
Pollock at the constitutional convention of 1961. While the Declaration of Rights must
remain a protective backdrop, the degree of individualization of other alienable rights is
lessened once the people have entrusted the state with administration of these alienable
rights and liberties for the sake of allowing a democratic government to operate. Generally
speaking, the violation of nonindividualized, alienable rights that have been entrusted to
the state appear poorly suited to vindication through an award of monetary damages against
the state. At least one other state Supreme Court appears to have likewise limited
monetary-damage remedies for constitutional-tort claims arising under its state’s
declaration of rights. See Corum v Univ of N Carolina, 330 NC 761, 783-786; 413 SE2d
276 (1992).
The constitutional claim before the Court today is premised on a due process
violation. The same was true of the constitutional claims at issue in Smith and Mays v
Governor, 506 Mich 157; 954 NW2d 139 (2020). Michigan’s Due Process Clause is
contained in the Declaration of Rights. Const 1963, art 1, § 17. For the reasons discussed
in Part III of the majority opinion, the violation of other rights set forth in the Declaration
might also give rise to a facially valid claim seeking monetary compensation for a
constitutional tort. But application of the framework in Part III of the majority opinion is
not clearly limited to violations of the Due Process Clause or even the Declaration of
Rights. Rather, even with the limitations acknowledged in footnote 13, the majority’s
analysis could plausibly be read to apply to any violation of any provision of the Michigan
Constitution. While the majority has not broadly held that the analysis in Part III applies
7
to all violations of Michigan’s Constitution, it also has declined to address whether there
is any limitation on the application of the Part III framework.
This Court has never given comprehensive consideration to whether a monetary-
damages remedy should be recognized for the violation of any right or liberty outside of
the Declaration of Rights. In light of the history I have set forth and the cases this Court
has considered in the past, I am doubtful that a claim for monetary damages should be
recognized in such circumstances, even if all other criteria of the framework the majority
adopts today have been satisfied.
It is worth repeating: implying a monetary-damages remedy for constitutional torts
is reserved as a “narrow remedy,” Jones v Powell, 462 Mich 329, 337; 612 NW2d 423(2000), and when necessary, as an ultimate stop-gap measure to vindicate the constitutional
right. I believe a violation of an individualized liberty contained in the Declaration of
Rights provides a pathway for an action for monetary damages under some circumstances,
but I do not believe the same can be assumed for the rest of our Constitution. Accordingly,
while I agree with the analysis in Part III, I limit my concurrence to allowing a monetary-
damages remedy only for violations of the Declaration of Rights, Const 1963, art 1, and I
do not join footnote 13 of the majority opinion to the extent that it declines to adopt such a
limitation.
II. ADEQUATE ALTERNATIVE REMEDIES
Contrary to Justice VIVIANO’s view, I believe that the majority’s adequate-
alternative-remedy criteria for setting forth a constitutional-tort claim will substantially
limit the liability faced by the state. Under the test adopted by the majority today, if there
8
is an adequate alternative remedy that vindicates the violation of a fundamental
constitutional right, then monetary damages will not be allowed for violation of that
constitutional right. I write separately to emphasize that an adequate remedy need not
necessarily make a plaintiff “whole” in every circumstance, and that this limitation
provides more protection to the state’s coffers than Justice VIVIANO suggests.
Rather, the question is also whether the existing remedy—injunctive relief,
declaratory relief, more process, a refund, or whatever it is—will be adequate such that the
constitutional right is preserved and not rendered ineffectual. See, e.g., Lum v Koles, 314
P3d 546, 556-557 (Alas, 2013) (“The alternative remedies do not need to provide the same
level of protection, ‘may include federal remedies,’ ‘need not be an exact match,’ and are
alternatives even if no longer procedurally available.”) (citation omitted). Just as our state
courts are well-equipped to determine whether a state constitutional violation has occurred,
In re Apportionment of State Legislature–1982, 413 Mich 96, 114; 321 NW2d 565 (1982),
they are also well-equipped to determine whether adequate alternative remedies exist.
The Legislature will generally be able to manage its potential exposure by providing
rights and remedies in legislation so long as those remedies are substantial enough to
adequately secure and give meaning to the constitutional right. When there is a legislative
scheme at issue, other state supreme courts have deferred to the other branches of
government. See, e.g., Spackman ex rel Spackman v Bd of Ed of Box Elder Co Sch Dist,
16 P3d 533, 539; 2000 UT 87 (2000) (urging “caution in light of the myriad policy
considerations involved in a decision to award damages against a governmental agency
and/or its employees for a constitutional violation” and “deference to existing remedies out
of respect for separation of powers’ principles”); Binnette v Sabo, 244 Conn 23, 42-43; 710
9
A2d 688 (1998) (recognizing the separation-of-powers principle and “its requirement for
judicial deference to legislative resolution of conflicting considerations of public policy”)
(quotation marks and citation omitted). Although recognizing it “has the authority to
fashion a common law remedy for the violation of a particular constitutional right,” the
New Hampshire Supreme Court added that it “will avoid such an extraordinary exercise
where established remedies—be they statutory, common law, or administrative—are
adequate.” Marquay v Eno, 139 NH 708, 721; 662 A2d 272 (1995); see also Dick Fischer
Dev No 2, Inc v Dep’t of Admin, 838 P2d 263, 268 (Alas, 1992) (stating same); Shields v
Gerhart, 163 Vt 219, 234-235; 658 A2d 924 (1995) (“Where the Legislature has provided
a remedy, although it may not be as effective for the plaintiff as money damages, we will
ordinarily defer to the statutory remedy and refuse to supplement it.”).
These cases are persuasive. There is an ongoing relationship between the roles of
the different branches of government that deserves respect. Unless monetary damages are
necessary to secure and vindicate a violation of a constitutional right, it is inappropriate to
second-guess policy-type decisions of the Legislature or the Executive Branch regarding
how to remedy violations of legal rights under a statutory scheme. The threshold question
for judges is whether a remedy is adequate, not whether it is ideal or equally
comprehensive. In practice, it appears that courts in other states have held that adequate
alternative remedies preclude a constitutional remedy for monetary damages under many
circumstances. 3
3
See, e.g., Fields v Mellinger, 244 W Va 126, 129-136; 851 SE2d 789 (2020) (declining
to recognize a constitutional tort for money damages on the basis of alleged employment
discrimination because there were adequate alternative remedies under common-law
actions and state and federal statutes); Salminen v Morrison & Frampton, PLLP, 377 Mont
10244, 255; 2014 MT 323; 339 P3d 602 (2014) (“Since the Salminens have a basis in law for
a claim to redress this allegation, they need not proceed under the Constitution.”); Lum,
314 P3d at 556-557 (holding that there were adequate alternative remedies because the
plaintiff “could have brought a common-law trespass claim or a federal civil rights action
under 42 U.S.C. § 1983”); Boatright v Glynn Co Sch Dist, 315 Ga App 468, 471; 726 SE2d
591 (2012) (rejecting the plaintiff’s constitutional-tort claim on the basis that the plaintiff’s
prior request for mandamus relief and claims asserted under Ga Code Ann 20-2-940 would
have provided adequate state remedies had plaintiff not dropped the claims); St Luke Hosp,
Inc v Straub, 354 SW3d 529, 537-538 (Ky, 2011) (noting that traditional common-law tort
actions were available and provided adequate alternative remedies for the alleged violation
of the defendant’s rights under the state constitution); Khater v Sullivan, 160 NH 372, 374;
999 A2d 377 (2010) (holding that the plaintiffs had adequate alternative statutory remedies
through the appeal process for zoning and land-use decisions); Giraldo v Dep’t of
Corrections & Rehabilitation, 168 Cal App 4th 231, 255-256; 85 Cal Rptr 3d 371 (2008)
(holding that adequate alternative remedies existed for the asserted cruel-and-unusual-
punishment claim under the state constitution because the plaintiff could have filed a claim
under 42 USC 1983); Sunburst Sch Dist No 2 v Texaco, Inc, 338 Mont 259, 279-280; 2007
MT 183; 165 P3d 1079 (2007) (holding that the recent adoption of Restatement Torts, 2d,
§ 929 to allow for the recovery of restoration damages meant that the district court had
“erred in instructing the jury on the constitutional tort theory where . . . adequate remedies
exist[ed] under statutory or common law”); Lowell v Hayes, 117 P3d 745, 754 (Alas, 2005)
(holding that the existence of a viable defamation claim was an adequate alternative remedy
and noting that “the inadequacy of alternative remedies for alleged constitutional violations
cannot be measured per se by the dismissal or defeat of those remedies”); Degrassi v Cook,
29 Cal 4th 333, 342-343; 58 P3d 360 (2002) (holding that a timely action for injunctive
relief, if meritorious, would have adequately remedied the complained of conduct); Lyles
v New York, 194 Misc 2d 32, 36-37; 752 NYS2d 523 (2002) (holding that adequate
remedies could have been obtained through various common-law tort theories and that
there was no need, therefore, to imply a constitutional-tort remedy for money damages);
Martinez v Schenectady, 97 NY2d 78, 83-84; 761 NE2d 560 (2001) (holding that a tort
claim for money damages was unavailable because reversal of the plaintiff’s prior
conviction provided an adequate remedy); Marquay, 139 NH at 722 (holding that common-
law tort and statutory causes of action provided adequate remedies even if not as
“ ‘complete’ as would be an additional constitutional tort”); Davis v Town of Southern
Pines, 116 NC App 663, 675-676; 449 SE2d 240 (1994) (holding that plaintiff’s
“constitutional right not to be unlawfully imprisoned and deprived of her liberty [was]
adequately protected by her common law claim of false imprisonment” and that she could
therefore not bring a constitutional-tort claim); Rockhouse Mountain Prop Owners Ass’n,
Inc v Town of Conway, 127 NH 593, 598-599; 503 A2d 1385 (1986) (holding that
alternative adequate remedies existed for the plaintiff’s equal protection claim because its
11
This case concerns an alleged procedural due process violation that allegedly caused
substantial financial loss for the plaintiffs beyond what was garnished and later returned
with no established legal path to recovery. In most cases, I fully expect that the remedy
for a violation of procedural due process will be more process. 4 The way to remedy
procedural due process violations has historically been through additional process afforded
in equity by courts, not monetary damages. Unless a well-trained lawyer is going to
supervise every single instance of official action that could affect a private interest, there
are bound to be procedural due process violations (even in the form of a mistake).
Unsurprisingly, other state supreme courts have likewise been hesitant to recognize a
constitutional tort with an attendant monetary-damages remedy for procedural due process
violations. See, e.g., Spackman, 16 P3d at 539; Carlsbad Aquafarm, Inc v State Dep’t of
Health Servs, 83 Cal App 4th 809, 821, 822; 100 Cal Rptr 2d 87 (2000) (recognizing a
litigant complaining of lack of procedural due process “had an alternative remedy” because
it “could have immediately petitioned the superior court for a writ of mandate ordering [the
defendant] to provide it with due process” and that it was not the “role of the judiciary to
create a damages action merely to provide a more ‘complete’ remedy”). However, in light
of the remarkable and extraordinary allegations of systemic due process violations in this
membership had a statutory right to seek de novo review of the decision not to construct
and maintain roads to their homes).
4
The Utah Supreme Court has stated that “procedural due process claims would appear to
be particularly amenable to redress through equitable means” exactly because “a court can
generally require the offending party to redo correctly the ‘procedure’ that allegedly lacked
the mandated safeguards.” Spackman, 16 P3d at 539 n 11.
12
case, I agree with the Court of Appeals and my colleagues in the majority that additional
process would be an inadequate remedy and that allowing for monetary damages is justified
in this case.
III. CONCLUSION
For the reasons already discussed, I concur with the majority that a claim against
the state for monetary damages can be recognized for certain constitutional violations and
with the holding that a claim for monetary damages is appropriate in this case. While I
agree with the legal framework and analysis in Part III of the majority opinion, I qualify
my concurrence with the majority opinion in the manner previously discussed. Finally,
while I appreciate Justice VIVIANO’s concerns, I believe the requirement that no adequate
alternative remedy exist before a monetary-damages remedy can be implied will ensure
that recognition of such a remedy for constitutional-tort claims will remain relatively rare.
Elizabeth M. Welch
13
STATE OF MICHIGAN
SUPREME COURT
GRANT BAUSERMAN, KARL
WILLIAMS, and TEDDY BROE, on Behalf
of Themselves and All Others Similarly
Situated,
Plaintiffs-Appellees,
v No. 160813
UNEMPLOYMENT INSURANCE
AGENCY,
Defendant-Appellant.
VIVIANO, J. (dissenting).
Our Constitution establishes the structure of our government, its powers and limits,
and the rights of the people. 1 After today’s decision, the Constitution will also provide
individuals with a cause of action for money damages when their constitutional rights are
violated if the Legislature has not provided a remedy that a majority of this Court deems
“adequate.” This represents an expansion of liability for the state and its taxpayers, without
any legal grounding. In fashioning this new cause of action for monetary damages, the
Court wields legislative power, unjustified by our common-law authority or the text and
history of the Constitution itself. I would instead hold that this Court has no power to
create these new causes of action and would overrule our caselaw suggesting otherwise.
1
Friedman, A History of American Law (New York: Simon & Schuster, 2005), p 74.
I. SMITH, BIVENS, AND THE SEPARATION OF POWERS
I believe that it is a violation of the separation of powers for courts to create causes
of action for money damages for constitutional violations. The fashioning of remedies for
constitutional wrongs is the work of the legislative branch, not the courts. While we have
authority over the common law, it is a gross abuse of that authority to create causes of
action for damages in these circumstances.
A. CASELAW
Today, for the first time in Michigan’s history, a majority of this Court has held that
a plaintiff has properly alleged a claim for money damages to redress a violation of
Michigan’s 1963 Constitution. In the handful of our cases addressing this general subject,
we have recognized the possibility that violations of the Constitution could result in a cause
of action for monetary damages, but we have never before found such a cause of action.
Our initial decision establishing that such claims exist came in the hopelessly fractured
memorandum opinion in Smith v Dep’t of Pub Health. 2 The Court issued a brief
memorandum opinion signed by all six participating justices; that opinion simply listed six
propositions that at least four of the participating justices agreed upon, two of which were:
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.[3]
2
Smith v Dep’t of Pub Health, 428 Mich 540; 410 NW2d 749 (1987).
3
Id. at 544, 545.
2
“The Smith opinion was silent as to why a majority of the Court had agreed on these
tenets.” 4 As my partial dissent in Mays v Governor 5 explained, the Court’s memorandum
opinion was followed by four separate opinions written or joined by the participating
justices. Justice BOYLE set forth the test that, until today, was applied by the lower courts
and this Court. 6 Under her test, courts should analyze the following factors when
determining whether to infer a damages remedy for violations of the Constitution caused
by a custom or policy:
(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.[7]
In neither of the two consolidated appeals we addressed in Smith did the Court infer a
damages claim: in one appeal, we determined that the plaintiff had failed to preserve the
argument, and in the other appeal, we remanded for a determination of whether a
4
Mays v Governor, 506 Mich 157, 188; 954 NW2d 139 (2020) (plurality opinion by
BERNSTEIN, J.).
5
Id. at 246 & n 52 (VIVIANO, J., concurring in part and dissenting in part).
6
See id. at 196 (plurality opinion by BERNSTEIN, J.) (“[W]e 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.”).
7
Id. at 247 (VIVIANO, J., concurring in part and dissenting in part), quoting Smith, 428
Mich at 648-652 (BOYLE, J., concurring in part and dissenting in part).
3
constitutional violation occurred and, if so, “whether it is one for which a damage remedy
is proper.” 8
We have addressed the subject of inferred damages claims in only three other cases.
In Jones v Powell, we characterized Smith as a “narrow remedy.” 9 In that case, the plaintiff
sued the city of Detroit as well as the Detroit police officers who had stormed her house
and searched it because they falsely believed a fleeing suspect had entered the house. We
affirmed the Court of Appeals’ ruling “that our decision in Smith provides no support for
inferring a damage remedy for a violation of the Michigan Constitution in an action against
a municipality or an individual government employee” because those plaintiffs had
adequate alternative remedies under federal law. 10 In Lewis v Michigan, we declined to
infer a cause of action under the Equal Protection Clause of our Constitution, Const 1963,
art 1, § 2, because that provision expressly states it will be implemented by the
Legislature. 11 Finally, in Mays, only a plurality of the Court supported inferring a damages
claim under Justice BOYLE’s test for due-process claims for violation of the right to bodily
integrity. 12
8
Smith, 428 Mich at 545.
9
Jones v Powell, 462 Mich 329, 337; 612 NW2d 423 (2000).
10
Id. at 331, 335, 337.
11
Lewis v Michigan, 464 Mich 781, 782, 787; 629 NW2d 868 (2001).
12
Mays, 506 Mich at 195-200 (plurality opinion by BERNSTEIN, J.).
4
The Court’s caselaw is clearly undergirded by the United States Supreme Court’s
decision in Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics. 13 In Bivens,
the Supreme Court concluded that the plaintiff had stated a cause of action for money
damages for violation of the Fourth Amendment. 14 But as I have explained, Bivens offers
a shaky foundation for our caselaw, and the Supreme Court has recognized Bivens-style
damages claims on only two other occasions. 15 From the outset, and continuing today,
“Bivens was criticized . . . as posing separation-of-powers concerns” because the creation
of damages remedies involves inherently policy-based considerations that fall within the
Legislature’s purview, not the judiciary’s. 16 As the United States Supreme Court stated
13
Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics, 403 US 388; 91 S Ct
1999; 29 L Ed 2d 619 (1971); see also Mays, 506 Mich at 251-263 (VIVIANO, J., concurring
in part and dissenting in part) (discussing Bivens).
14
Bivens, 403 US at 397.
15
Mays, 506 Mich at 257 (VIVIANO, J., concurring in part and dissenting in part), citing
Davis v Passman, 442 US 228; 99 S Ct 2264; 60 L Ed 2d 846 (1979), and Carlson v Green,
446 US 14; 100 S Ct 1468; 64 L Ed 2d 15 (1980).
16
Mays, 506 Mich at 253-255 (VIVIANO, J., concurring in part and dissenting in part)
(noting that Congress, rather than the courts, would most often be the branch to establish
damages remedies because the “issue ‘ “involves a host of considerations that must be
weighed and appraised” ’ ” and thus “should be committed to ‘ “those who write the
laws” ’ rather than ‘ “those who interpret them” ’ ”), quoting Ziglar v Abbasi, 582 US ___;
137 S Ct 1843, 1857; 198 L Ed 2d 290 (2017) and Carlson, 446 US at 37 (Rehnquist, J.,
dissenting) (“[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.”); Bivens, 403
US 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 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.”).
5
just this year, “Now long past ‘the heady days in which this Court assumed common-law
powers to create causes of action,’ . . . we have come ‘to appreciate more fully the tension
between’ judicially created causes of action and ‘the Constitution’s separation of legislative
and judicial power . . . .’ ” 17 “At bottom,” the Court continued, “creating a cause of action
is a legislative endeavor.” 18 The Court appears to have limited Bivens and the two other
cases allowing damages to their exact factual circumstances, and multiple justices have
called for overruling this line of caselaw. 19 The Court will now refuse to create a cause of
17
Egbert v Boule, 596 US ___, ___; 142 S Ct 1793; ___ L Ed 2d___ (2022); slip op at 6.
18
Id. at ___; slip op at 6. See also id. at ___ (Gorsuch, J., concurring); slip op at 1 (“Our
Constitution’s separation of powers prohibits federal courts from assuming legislative
authority. As the Court today acknowledges, Bivens . . . crossed that line by ‘impl[ying]’
a new set of private rights and liabilities Congress never ordained.”) (alteration in original);
id. at ___ (Gorsuch, J., concurring); slip op at 2 (“To create a new cause of action is to
assign new private rights and liabilities—a power that is in every meaningful sense an act
of legislation.”).
19
As discussed in Mays, the United States Supreme Court recently observed:
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. [Mays, 506 Mich at 257
(VIVIANO, J., concurring in part and dissenting in part) (alteration in
original), quoting Hernández v Mesa, 589 US ___, ___; 140 S Ct 735, 742-
743; 206 L Ed 2d 29 (2020).]
See also Egbert, 596 US at ___ (opinion of the Court); slip op at 17 (noting same). Justices
Clarence Thomas and Neil Gorsuch have called for overruling Bivens. See id. at ___
(Gorsuch, J., concurring); slip op at 3 (“I would only take the next step and acknowledge
explicitly what the Court leaves barely implicit” and overrule Bivens.); Hernández, 589 US
at ___; 140 S Ct at 750 (Thomas, J., concurring) (“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
6
action for money damages if “there is any reason to think that Congress might be better
equipped to create a damages remedy.” 20
B. SEPARATION OF POWERS
I continue to believe that “[t]he critiques of Bivens apply equally to Smith,” which
“poses the same separation-of-powers concerns that Bivens does.” 21 I cannot see how a
damages
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. This power
encompasses the power to create causes of action. 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.[22]
The constitutional separation of powers protects against the threat posed by
unrestrained judicial lawmaking. “Lawmaking, the framers of the federal Constitution
believed, should be difficult because it poses dangers to liberty; thus, federal statutes
require passage by two legislative bodies and approval by the executive to become law.” 23
doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny
were wrongly decided.”).
20
Egbert, 596 US at ___ (opinion of the Court); slip op at 7.
21
Mays, 506 Mich at 260 (VIVIANO, J., concurring in part and dissenting in part).
22
Id. at 259 (citations omitted).
23
In re Certified Questions from United States District Court, Western District of Mich,
506 Mich 332, 415; 958 NW2d 1 (2020) (VIVIANO, J., concurring in part and dissenting in
part), citing Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2131; 204 L Ed 2d
522 (2019) (Gorsuch, J., dissenting).
7
“Our own Constitution, of course, reflects these same requirements.” 24 Indeed, our
Constitution contains express protection of the separation of powers not contained even in
the federal Constitution. 25 “[T]hese hedges against hasty lawmaking and the separation of
powers . . . were . . . meant to ‘respect[] the people’s sovereign choice to vest the
legislative power’ in one branch alone and to ‘safeguard[] a structure designed to protect
their liberties, minority rights, fair notice, and the rule of law.’ ” 26 These protections are
obliterated when the judiciary takes it upon itself to craft monetary damages for
constitutional violations. The creation of that liability, dependent upon policy
considerations that the judiciary is institutionally ill-suited to address, is a task that falls
within the legislative sphere. 27
Some have suggested, however, that state courts, unlike federal courts, are suited to
the task of creating causes of action under our common-law powers, which federal courts
24
In re Certified Question, 506 Mich at 415 (VIVIANO, J., concurring in part and dissenting
in part), citing Const 1963, art 4, §§ 24 and 33.
25
See 1963 Const., art 3, § 2 (“No person exercising powers of one branch shall exercise
powers properly belonging to another branch except as expressly provided in this
constitution.”).
26
In re Certified Question, 506 Mich at 416 (VIVIANO, J., concurring in part and dissenting
in part) (alteration in original), quoting Gundy, 588 US at ___; 139 S Ct at 2135 (Gorsuch,
J., dissenting).
27
See, e.g., Egbert, 596 US at ___ (opinion of the Court); slip op at 6 (noting the “ ‘range
of policy considerations’ ” required, including economic concerns, costs, and effects on
governmental operations) (citation omitted). The Legislature is better positioned to address
these issues, including the argument that damages remedies for constitutional violations
have little deterrent effect (and might even have a perverse incentive effect) on
governmental actors because those actors do not internalize costs the same way that private
actors do. See Levinson, Making Government Pay: Markets, Politics, and the Allocation
of Constitutional Costs, 67 U Chi L Rev 345, 345-348, 367-373, 402-406 (2000).
8
lack. 28 In declining to extend Bivens, the Supreme Court has noted that it does not have
common-law authority. 29 This is taken by some as a signal that a common-law court, such
as ours, has a free hand to fashion tort-based causes of action for monetary damages. The
cause of action would be separate from the constitutional provision in the sense that the
tort would not arise from or be required by the state Constitution itself. It would, instead,
28
See Bowers, The Implied Cause of Action for Damages Under the Idaho Constitution,
56 Idaho L Rev 339, 350 (2020) (“The most important distinction between state and federal
courts with regard to Bivens actions . . . is the differing scope of jurisdiction in state and
federal courts. Judicial implication of damages remedies may pose knotty questions in
Article III courts of limited jurisdiction, but it is widely accepted that ‘state courts remain
common-law generalists with equitable and inherent authority to create law, shape policy,
and devise remedies.’ ”) (citations omitted).
Although there is some ambiguity on this point in the majority opinion, the majority
does not appear to rely on this rationale, instead purporting to find the right to a damages
remedy as inherent in the Constitution itself. See note 39 of this opinion (discussing the
majority’s justifications for its holding). Nonetheless, because no such right exists in the
Constitution (as explained below), the majority’s action must ultimately rest on the judicial
creation of a freestanding tort. It is therefore necessary to examine our power in this regard.
Numerous common-law courts have considered their power to create torts for
constitutional violations independent from any such cause of action arising from the
constitutional text. See, e.g., Spackman ex rel Spackman v Bd of Ed of Box Elder Co Sch
Dist, 16 P3d 533, 537-538; 2000 UT 87 (2000) (explaining that “[i]n the absence of
applicable constitutional or statutory authority” for a right to damages for constitutional
violations, “Utah courts employ the common law,” and “a Utah court’s ability to award
damages for violation of a self-executing constitutional provision rests on the common
law”); cf. Cantrell v Morris, 849 NE2d 488, 505-507 (Ind, 2006) (recognizing that a
damage remedy might “arise[] under the state Constitution itself or under state common
law tort doctrines” but finding “little practical significance” between the two modes and
holding that any damages remedy would be limited by statutory immunities for
governmental actors); Beaumont v Bouillion, 896 SW2d 143, 150 (Tex, 1995) (rejecting
the argument that “we may look to the Constitution to define the element of duty for a
Texas common law cause of action”).
29
See Hernández, 589 US at ___; 140 S Ct at 742 (“With the demise of federal general
common law, a federal court’s authority to recognize a damages remedy must rest at bottom
on a statute enacted by Congress . . . .”).
9
be a pure act of judicial lawmaking. One scholar, concluding that Bivens could not be
justified as an exercise of constitutional interpretation, thought that decision was an
exercise of “preemptive lawmaking” in the mold of the common law. 30
Putting it in those stark terms underscores the activism inherent in the enterprise.
And this view fundamentally misunderstands our common-law powers. As explained more
fully later in this opinion, we certainly do not claim that power when it comes to statutes,
and there is no history supporting the creation of such torts for violations of the
Constitution. It goes well beyond our role as the principal steward of the common law:
Acting in [our capacity as the principal steward of Michigan’s common law],
we have on occasion allowed for the development of the common law as
circumstances and considerations of public policy have required. See, e.g.,
Berger [v Weber, 411 Mich 1; 303 NW2d 424 (1981)]. But as Justice YOUNG
has recently observed, our common-law jurisprudence has been guided by a
number of prudential principles. See Young, A judicial traditionalist
confronts the common law, 8 Texas Rev L & Pol 299, 305-310 (2004).
Among them has been our attempt to “avoid capricious departures from
bedrock legal rules as such tectonic shifts might produce unforeseen and
undesirable consequences,” id. at 307[.][31]
30
See Merrill, The Common Law Powers of Federal Courts, 52 Univ Chi L Rev 1, 51-52
(1985) (“By definition, the remedy in question is not authorized by the text itself. . . . Thus,
as a general matter, it is unlikely that an examination of the structure and history of the
enactment will yield evidence of a specific intent to create such a remedy. . . . But for the
most part, the techniques of conventional interpretation will not authorize judicial creation
of remedies beyond those expressly provided by Congress. At this point, however, the
doctrine of preemptive lawmaking comes into play. Although at first blush it may seem
odd to apply the concept of preemptive lawmaking in order to create additional remedies,
the underlying rationale is essentially the same in this context as it is when a court finds it
necessary to preempt or supplement state substantive rules in order to preserve federal
statutory policies.”) (citations and paragraph structure omitted).
31
Henry v Dow Chemical Co, 473 Mich 63, 83; 701 NW2d 684 (2005).
10
We went on to explain that the judiciary has an “obligation to exercise caution and to defer
to the Legislature when called upon to make a new and potentially societally dislocating
change to the common law” and that separation-of-powers concerns support this cautious
approach. 32 Indeed, the very concept of the common law defies innovation given that it is
defined as “custom.” 33
To the extent the majority’s decision today is grounded on the Court’s common-law
powers, it dangerously aggrandizes those powers. The decision represents a massive and
amorphous expansion of constitutional tort liability. Under the majority’s decision, unless
the Constitution provides otherwise, or the Legislature has established a remedy that we
deem adequate, damages will lie for a constitutional violation. How will we know when
the Legislature’s alternative remedy is “adequate”? When it is “at least as protective of a
particular constitutional right as a judicially recognized cause of action,” and it “must
include any remedy necessary to address the harm caused.” Ante at 25. In other words,
32
Id. at 89.
33
Boorstin, The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries
(Chicago: University of Chicago Press, 1969), pp 73-74 (“Indeed, all the virtues of
tradition seemed to be inherent in the very definition of the English common law because,
after all, the common law was rooted in custom. The definition of the common law as
custom, at the same time that it allowed Blackstone to attribute to the law the virtues of
those early times in which English law had originated, permitted him to find in the law the
accumulated wisdom of all the ages since. And who would dare to set his private stock of
wisdom against the accrued capital of wisdom of all the past? . . . ‘Custom, which is the
life of the common law,’ derived much of its validity from the presumption in favour of
the products of experience.”) (citation omitted).
11
the Legislature’s remedy will be adequate if it is that which we would have come up with
ourselves. This leaves no guidance whatsoever. 34
More importantly, what is the scope of the Court’s holding—will the violation of
any provision of the Constitution result in damages, or only the violation of certain
provisions? Although the opinion appears to focus on the provisions in the Declaration of
Rights, the opinion also presents its holding in sweeping terms, stating that “when the
Constitution itself has not delegated to the other branches the authority to weigh those
policy concerns, or when the other branches have not stepped in to afford an adequate
alternative remedy, our inherent judicial authority requires us to afford a remedy for all
constitutional violations . . . .” Ante at 26-27.
While only three justices appear to leave open the possibility that implied causes of
action for damages could be found outside the Constitution’s Declaration of Rights, it is
worth explaining why such a view cannot (and should not) garner majority support. Our
Constitution, unlike the federal Constitution, contains a host of more technical details that
have now become potential tripwires for money-damages claims, including many that
would seem to bear little relation to individual rights. Cities and villages, for example,
cannot acquire certain public utilities unless the transaction is first approved by the voters. 35
Individuals and entities that operate public utilities cannot use various public places to run
wire and other utility facilities without first obtaining a franchise from the pertinent local
34
Justice WELCH characterizes the majority’s adequate-alternative-remedy requirement as
limited, suggesting that it will not require the Legislature to provide for monetary relief “in
every circumstance[.]” Whether this proves true remains to be seen; the majority opinion
offers no such assurances.
35
Const 1963, art 7, § 25.
12
government. 36 Our Constitution establishes a “game and fish protection trust fund” and
establishes how it shall be financed and managed. 37 Are violations of these provisions
grounds for money damages? And if so, to whom? These ambiguities are present in more
central provisions as well. For example, our Constitution requires that the Independent
Citizens Redistricting Commission adopt redistricting plans with districts of equal
population. 38 How would money damages remedy a violation of this provision?
The Court’s decision today portends a staggering extension of liability that is alien
to the incremental and customs-based nature of the common law. The decision cannot be
justified as a proper use of common-law authority. Accordingly, I believe that the creation
of money-damages claims for constitutional violations is a legislative function. It is
therefore a violation of the separation of powers for the Court to step in and create such
claims.
36
Const 1963, art 7, § 29. The majority opinion claims that these examples of provisions
on municipalities are irrelevant because the opinion is limited to the potential liability of
the state, not municipalities. But the opinion fails to offer any principled reason for
interpreting other provisions as allowing damages remedies, but not these. That is, if the
damages remedy is truly just an interpretation of the Constitution, the opinion cites no
language or principle that would limit the remedy to claims against the state. To the extent
the opinion rests upon the “rights”-giving provisions of the Constitution, it never expressly
limits its reasoning to those provisions. Rather, three of the four justices in the majority
decline to decide whether the holding applies outside of violations of the Declaration of
Rights or other possible rights in the Constitution. Even if the holding is eventually limited
to violations of constitutional “rights,” those three justices never explain how a court is to
determine whether a provision grants a right for purposes of the majority’s holding. For
example, does a resident have a “right” to vote on whether a city can acquire public
utilities? See Const 1963, art 7, § 25. Their attempt to clarify and limit their holding by
pure ipse dixit is bound to create confusion.
37
Const 1963, art 9, § 41.
38
Const 1963, art 4, § 6(13)(a).
13
II. CONSTITUTIONAL TORTS AS CONSTITUTIONAL INTERPRETATION
Perhaps because of the stunning sweep of today’s holding, and concerns with the
separation of powers, the majority purports to ground its decision in the Constitution itself,
suggesting that the remedy crafted today is constitutionally required. 39 A cause of action
established by the text would arguably avoid the separation-of-powers concerns noted
above. But the majority never bothers with any textual analysis and only gestures vaguely
at historical practices. Neither text nor history suggest any hidden causes of action for
constitutional violations generally, nor do they reveal a cause of action for the provision at
issue here, the Due Process Clause.
39
I read the majority opinion as attempting to ground its holding in the Constitution itself
rather than the Court’s authority over the common law. Somewhat confusingly, however,
the majority at times suggests that its holding rests on inherent judicial power, implying
that the damages remedies created today are creatures of the common law (or some other
ambiguous source) rather than requirements arising from the constitutional text itself.
Compare ante at 2 (“Inherent in the judiciary’s power is the ability to recognize remedies,
including monetary damages, to compensate those aggrieved by the state . . . for violating
the Michigan Constitution . . . .”), ante at 26-27 (“But when the Constitution itself has not
delegated to the other branches the authority to weigh . . . policy concerns, or when the
other branches have not stepped in to afford an adequate alternative remedy, our inherent
judicial authority requires us to afford a remedy for all constitutional violations . . . .”), and
ante at 7 (“[T]his Court retains the authority—indeed the duty—to vindicate the rights
guaranteed by our Constitution.”), with ante at 18-19 (“Our holding today is grounded in
the constitutional rights relied on by plaintiffs as well as our authority and duty to say what
the law is.”), and ante at 21 (“What plaintiffs ask of us is not to make new law under the
Constitution but, rather, to enforce the Constitution itself.”). One would hope that with
such a momentous holding, the majority would take greater pains to locate and specify the
grounds for its holding rather than serving up vague platitudes. In any case, for the reasons
addressed in this dissent, the majority errs no matter which basis its opinion ultimately
employs.
14
A. INTERPRETING THE CONSTITUTIONAL TEXT
Some courts and scholars have asserted that looking to the Constitution itself is the
proper approach to constitutional torts. The Supreme Court has acknowledged that Bivens
simply extended the then-regnant interpretive practice of inferring causes of action from
statutes. 40 As another example, the Oregon Supreme Court looked for any “textual or
historical basis” in that state’s bill of rights “for implying a right to damages for
constitutional violations,” finding no such basis. 41 Our decision in Lewis was likewise
grounded in the text: because the constitutional provision at issue entrusted its
implementation to the Legislature, the Court would not infer a damages remedy. 42 The
40
Hernández, 589 US at ___; 140 S Ct at 741; see also Katzberg v Regents of Univ of
California, 29 Cal 4th 300, 314; 58 P3d 339 (2002) (“[M]ost California decisions issued
during the past two decades . . . have viewed the determinative question as whether an
action for damages exists in (or can be inferred from) the constitutional provision at issue.
Accordingly, most of the recent California decisions expressly focus their analysis upon
whether the provision at issue was intended, either expressly or impliedly, to afford relief
in damages.”). Some who disagree that Bivens can be justified by constitutional
interpretation have nonetheless noted that Bivens purported to ground its decision as an
interpretation of the Constitution. Monaghan, Forward: Constitutional Common Law, 89
Harv L Rev 1, 24 (1975) (“The majority opinion [in Bivens] apparently derives the right to
damages from the fourth amendment itself. But, unless the Court views a damage action
as an indispensable remedial dimension of the underlying guarantee, it is not constitutional
interpretation, but common law.”) (citations omitted).
41
Hunter v Eugene, 309 Or 298, 303; 787 P2d 881 (1990); see also Bouillion, 896 SW2d
at 148-149 (examining the text and history of the provisions in deciding that there was no
cause of action for damages when the state constitutional rights of speech and assembly
were violated).
42
Lewis, 464 Mich at 786.
15
Restatement likewise seems to locate the activity of implying damages in the interpretive
sphere. 43
But to infer causes of action for money damages from the constitutional text requires
a contortion of interpretive principles. This contortion was commonplace when Bivens was
decided, and the Court extended the practice to the constitutional sphere. At that time, the
United States Supreme Court generally read private causes of action into statutes. 44 The
43
See Restatement Torts, 2d, § 874A, p 301 (“When a legislative provision [which is
defined to include the Constitution] 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.”). Although the Restatement suggests that the action
is a tort, the comments indicate that the process of inferring a civil remedy is tied to
interpretation. The Restatement centers the analysis on discovering legislative intent, even
though the effectuation of that intent might be a court-created tort cause of action.
Restatement, § 874A, comments c and d, p 302 (“If the court determines that the legislative
body did actually intend for civil liability to be imposed or not imposed, whether the intent
is explicit or implicit, then the court should treat the situation as if it had expressly so
provided. . . . If this was the intent of the legislative body, a study of the text of the
provision, including the title and preamble, if any, will often disclose the fact. Tracing the
legislative history may sometimes prove helpful. Some courts give careful attention to this
source, while others decline to allow it to be considered at all. . . . If the court has reached
the conclusion that the legislative body did actually have the intent either to establish a
civil remedy to protect and enforce the right or to limit the relief to that expressly provided
for in the legislative provision, the issue is settled, and the court is warranted in declaring
that it is complying with the legislative intent.”) (paragraph structure omitted); but see
Katzberg, 29 Cal 4th at 325 (suggesting that the Restatement calls for the “exercise
[of] . . . authority over the common law” to, “in appropriate circumstances, recognize a tort
action for damages to remedy a constitutional violation”).
44
Mays, 506 Mich at 256 (VIVIANO, J., concurring in part and dissenting in part) (“ ‘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.’ ”), quoting Correctional Servs Corp v Malesko, 534 US 61, 75;
122 S Ct 515; 151 L Ed 2d 456 (2001) (Scalia, J., concurring).
16
understanding was that this approach effectuated the legislative purpose behind a statute. 45
But the Court has “abandoned” that view, 46 and the touchstone of the present test for
implied causes of action has been whether the text and structure of a statute displayed the
legislature’s intent to create such a cause of action. 47 Therefore, a private cause of action
should only be implied from the fair import of the statute’s text. 48 A judicially created
private remedy in a statute that does not provide for such a remedy “would be a major
addition to the statute,” akin to an amendment. 49 The present approach has been labeled
the “presumption against implied right of action” canon of interpretation. 50
45
Alexander v Sandoval, 532 US 275, 287; 121 S Ct 1511; 149 L Ed 2d 517 (2001),
discussing J I Case Co v Borak, 377 US 426, 433; 84 S Ct 1555; 12 L Ed 2d 423 (1964);
see also Cort v Ash, 422 US 66, 78; 95 S Ct 2080; 45 L Ed 2d (1975) (positing various
factors in deciding whether to infer a cause of action, including whether the legislation
sought to benefit or protect a discrete class and whether the private remedy furthers the
statute’s purposes).
46
Alexander, 532 US at 287.
47
See id. at 288 (“We therefore begin (and find that we can end) our search for Congress’s
intent with the text and structure of Title VI.”).
48
Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St. Paul:
Thomson/West, 2012), pp 316-317.
49
Id.50
Id. at 313. See also Callahan v Fed Bureau of Prisons, 965 F3d 520, 523 (CA 6, 2020)
(“What started out as a presumption in favor of implied rights of action has become a firm
presumption against them.”).
17
Our caselaw charts a similar course. 51 At one time, we followed the Restatement
view and inferred causes of action to further legislative purposes. 52 But we have since
adopted the view that implied causes of action must arise, if at all, from the statutory text
itself and not from vague perceptions of legislative objectives. 53 In a 2005 opinion, we
noted that the United States Supreme Court had “become increasingly reluctant to imply a
private cause of action” and had instead focused on the “central inquiry [of] whether
Congress intended to create, either expressly or by implication, a private cause of action.” 54
And, in fact, we said that the United States Supreme Court had apparently moved to “a
completely textual analysis in determining whether a private remedy exists under a
particular statute.” 55 We likewise indicated that the criterion for implied causes of action
was the statutory text. 56
51
See generally Mays, 506 Mich at 260 n 89 (VIVIANO, J., concurring in part and dissenting
in part) (discussing the caselaw).
52
See Gardner v Wood, 429 Mich 290, 301; 414 NW2d 706 (1987) (“Where a penal statute
is silent concerning whether a violation of its provisions should give rise to a civil remedy,
courts will infer a civil remedy for the violation ‘to further the ultimate policy for the
protection of individuals which they find underlying the statute, and which they believe the
legislature must have had in mind.’ ”), quoting Prosser & Keeton, Torts (5th ed), § 36,
p 222.
53
See Myers v Portage, 304 Mich App 637, 643 n 12; 848 NW2d 200 (2014) (discussing
this Court’s changing caselaw).
54
Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich
479, 497, 498; 697 NW2d 871 (2005) (quotation marks and citation omitted).
55
Id. at 499.
56
Id. at 500 (interpreting a federal statute); see also Lash v Traverse City, 479 Mich 180,
193; 735 NW2d 628 (2007) (noting that in a case involving the government as a defendant,
we would not recognize a cause of action without express provision by the Legislature).
18
Nothing in the text of our state Constitution generally allows damages remedies for
constitutional violations. Like the federal Constitution, our Constitution does not generally
refer to remedies. 57 This distinguishes our Constitution from those that contain a remedies
clause that expressly entitles individuals to a remedy for violations of those constitutions. 58
It is noteworthy that even with such a constitutional provision, at least one state has rejected
inferring causes of action for damages. 59 Nothing in the text of the provision at issue here,
the Due Process Clause, supports a damages remedy: “No person shall . . . be deprived of
life, liberty or property, without due process of law.” 60
Plaintiffs and the majority try to invoke the 1961 constitutional convention records
for support, but they point to nothing very useful. The closest they come is that the
57
See Fallon, Jr. & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies,
104 Harv L Rev 1731, 1779 (1991) (“The Constitution generally makes no reference to
remedies.”); cf. Hill, Constitutional Remedies, 69 Colum L Rev 1109, 1132 (1969) (“It
may fairly be assumed that the founding fathers did not contemplate a new species of
constitutional tort.”). Of course, there are some exceptions. For example, “[p]rivate
property shall not be taken for public use without just compensation therefore being first
made or secured in a manner prescribed by law.” Const 1963, art 10, § 2; see also US
Const, Am V (“[N]or shall private property be taken for public use, without just
compensation.”).
58
See, e.g., Minn Const, art 1, § 8 (“Every person is entitled to a certain remedy in the laws
for all injuries or wrongs which he may receive to his person, property or character, and to
obtain justice freely and without purchase, completely and without denial, promptly and
without delay, conformable to the laws.”); see also Phillips, The Constitutional Right to a
Remedy, 78 NYU L Rev 1309, 1310 (2003) (noting that the remedies clause “expressly or
implicitly appears in forty state constitutions”).
59
See Tex Const, art 1, § 13 (“All courts shall be open, and every person for an injury done
him, in his lands, goods, person or reputation, shall have remedy by due course of law.”);
Bouillion, 896 SW2d at 147 (declining to find an implied private right of action for
damages under various provisions of the state constitution).
60
Const 1963, art 1, § 17.
19
convention considered—but did not add—the line that “[t]his provision [i.e., the
Declaration of Rights] shall not be construed to enable the denial to any citizen of any
direct and immediate legal remedy in the courts of this state.” 61 This is a far cry from the
proposition that the drafters intended for damages remedies to be available, if such an
argument from unstated intentions were even relevant. This language was eventually
reflected in the section on the civil rights commission: “Nothing contained in this section
shall be construed to diminish the right of any party to direct and immediate legal or
equitable remedies in the courts of this state.” 62 Thus, to the extent the language even
appears in the Constitution, it involves only a specific section not relevant here. If
anything, to the extent that the language was considered but not placed in the Declaration
of Rights, that would seem to weigh in favor of concluding that the convention rejected the
notion that the Declaration would keep undiminished the ability of individuals to access
the courts to obtain monetary damages for violations of their constitutional rights. 63
Finally, it is not at all clear that the language is referring to money damages for
constitutional violations. Bivens had not yet been decided at the time of the convention,
and we had no history of providing damages for constitutional violations at that time. There
is no reason to believe that the convention delegates and the ratifying public had the
61
2 Official Record, Constitutional Convention 1961, p 1946.
62
Const 1963, art 5, § 29.
63
Cf. In re MCI Telecom Complaint, 460 Mich 396, 415; 596 NW2d 164 (1999) (“Where
the Legislature has considered certain language and rejected it in favor of other language,
the resulting statutory language should not be held to explicitly authorize what the
Legislature explicitly rejected.”).
20
clairvoyance to anticipate the coming caselaw creating those damages remedies. And even
if they had, they left no marks on the Constitution itself approving such remedies. 64
The majority’s textual analysis instead amounts to the proposition that the very
nature of a right implies a remedy. This proposition does have some intuitive pull and a
distinguished provenance. In Marbury v Madison, Chief Justice Marshall proclaimed that
the “government of law, and not of men,” will “cease . . . if the laws furnish no remedy for
the violation of a vested legal right.” 65 But it is equally clear that a government of laws
requires that those remedies be established and enforced by the proper legal process. That
is why, in Marbury, despite finding that William Marbury’s rights had been violated, the
Court left him without a remedy: Congress had not properly granted the Court jurisdiction
to hear the case in the first place, and thus no remedy could be crafted or enforced for the
violation of Marbury’s rights. 66
64
Another textual argument some have made to support damages remedies is that such
remedies flow from the fact that a constitutional provision is self-executing. See Brown v
New York, 89 NY2d 172, 186; 674 NE2d 1129 (1996) (“A civil damage remedy cannot be
implied for a violation of the State constitutional provision unless the provision is self-
executing . . . .”); Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S Cal
L Rev 289, 292 (1995) (arguing that Bivens could be justified by the self-executing nature
of constitutional provisions). A self-executing provision is one that “ ‘supplies a sufficient
rule by means of which the right given may be enjoyed and protected, or the duty imposed
may be enforced,’ ” Detroit v Oakland Circuit Judge, 237 Mich 446, 451-452; 212 NW
207 (1927) (citation omitted), such that “it takes effect immediately, without the necessity
for supplementary or enabling legislation,” Brown, 89 NY2d at 186. But as the Vermont
Supreme Court has explained, “The fact that the constitutional provision is self-executing
means only that the rights contained therein do not need further legislative action to become
operative. It does not necessarily mean that monetary damages is the proper remedy for a
violation.” Shields v Gerhart, 163 Vt 219, 227-228; 658 A2d 924 (1995).
65
Marbury v Madison, 5 US (1 Cranch) 137, 163; 2 L Ed 60 (1803).
66
Id. at 180; see also Nixon v Fitzgerald, 457 US 731, 755 n 37; 102 S Ct 2690; 73 L Ed
2d 349 (1982) (“Yet Marbury does not establish that the individual’s protection must come
21
The United States Supreme Court has elsewhere recognized that not all areas of law
provide for damages remedies for rights violations: “Our implied-rights-of-action cases
identify another area of the law in which there is not a damages remedy for every legal
wrong.” 67
We, too, have explained that not all rights are vindicated in court:
But it is said that this conclusion will leave parties who have rights, in
many cases, without remedy. Practically, there are a great many such cases,
but theoretically, there are none at all. All wrongs, certainly, are not
redressed by the judicial department. A party may be deprived of a right by
a wrong verdict, or an erroneous ruling of a judge, and though the error may
be manifest to all others than those who are to decide upon his rights, he will
be without redress. A person lawfully chosen to the legislature may have his
seat given by the house to another, and be thus wronged without remedy. A
just claim against the State may be rejected by the board of auditors, and
neither the governor nor the courts can give relief. A convicted person may
conclusively demonstrate his innocence to the governor, and still be denied
a pardon. In which one of these cases could the denial of redress by the
in the form of a particular remedy. Marbury, it should be remembered, lost his case in the
Supreme Court. The Court turned him away with the suggestion that he should have gone
elsewhere with his claim.”); Colegrove v Green, 328 US 549, 556; 66 S Ct 1198; 90 L Ed
1432 (1946) (opinion by Frankfurter, J.) (“The Constitution has many commands that are
not enforceable by courts because they clearly fall outside the conditions and purposes that
circumscribe judicial actions.”); Fallon, Jr., Bidding Farewell to Constitutional Torts, 107
Calif L Rev 933, 970-971 (2019) (“Critics routinely pillory the Supreme Court’s retreat
from Bivens . . . as [a] betrayal[] of Marbury’s promise of an individually effective remedy
for every violation of an individual right. But Marbury, as properly interpreted in the
context of our tradition, made no such promise. The Supreme Court awarded no remedy
to William Marbury. It is not clear that any other court would have done so either.”)
(citations omitted).
67
Nixon, 457 US at 754 n 37; see also Webster v Doe, 486 US 592, 613; 108 S Ct 2047;
100 L Ed 2d 632 (1988) (Scalia, J., dissenting) (“[I]t is simply untenable that there must be
a judicial remedy for every constitutional violation.”); New Law, 104 Harv L Rev at 1786
(“But the existence of constitutional rights without individually effective remedies is a fact
of our legal tradition, with which any theory having descriptive pretensions must come to
terms.”).
22
proper tribunal constitute any ground for interference by any other authority?
The law must leave the final decision upon every claim and every
controversy somewhere, and when that decision has been made, it must be
accepted as correct.[68]
This also reflects the limited scope of the common-law principle, ubi jus, ibi remedium—
“ ‘the principle that where one’s right is invaded or destroyed, the law gives a remedy to
protect it or damages for its loss.’ ” 69 One scholar has observed that, at the time of the
country’s founding and in the early nineteenth century (when Michigan was formed), this
principle was more of a “platitude” than “black letter legal doctrine” because “a plaintiff
had a cause of action at law or in equity only if judicial relief was available through a
particular form of proceeding.” 70 Writs available to plaintiffs were not invented to meet
each new wrong. 71
And historically—at least until the twentieth century—individuals generally looked
to the legislative branch for protection and fulfillment of rights. 72 One court, for example,
noted that the Second Amendment,
68
People ex rel Sutherland v Governor, 29 Mich 320, 330-331 (1874).
69
People v Kabongo, 507 Mich 78, 135; 968 NW2d 264 (2021) (opinion by ZAHRA, J.),
quoting Oxford Dictionary of Law (8th ed).
70
Bellia, Jr., Article III and the Cause of Action, 89 Iowa L Rev 777, 784 (2004).
71
Id. at 786 (“Notwithstanding the oft-recited platitude ubi jus, ibi remedium, if no form
of action afforded judicial relief, there was no remedy regardless of whether it could be
said that there was a right.”).
72
See Dinan, Keeping the People’s Liberties: Legislators, Citizens, and Judges as
Guardians of Rights (University Press of Kansas, 1998), p xi (noting, in a study of
Michigan and a handful of other states, that “[d]uring a republican regime, which had its
origins in the initial state constitutions and predominated throughout the nineteenth
century, rights were secured primarily through representative institutions and the political
process, particularly through the passage of legislative statutes” and that “[n]ot until the
middle of the twentieth century can we identify the emergence of a judicialist regime”);
23
like similar provisions in our own Declaration of Rights, declares a great
general right, leaving it for other more specific constitutional provision or to
legislation to provide for the preservation and practical security of such right,
and for influencing and governing the judgment and conscience of all
legislators and magistrates, who are thus required to recognize and respect
such rights.[73]
Consequently, I find nothing in the text of the Constitution that would remotely
justify the creation of a cause of action for money damages in these circumstances.
B. HISTORICAL PRACTICE
The majority also suggests that there is a historical practice of inferring causes of
action in the Constitution and allowing damages remedies. 74 Some courts and scholars
have pointed to 19th century caselaw and, even further back, to English common-law cases
as support. 75 But these cases were run-of-the-mill tort actions in which the constitutional
Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill and London: The
University of North Carolina Press, 1998), pp 301-302 (“Reform-minded Americans were
thus committed to equity as a basis of law, but by resting their plans on legislative
enactment they at the same time denied the judicial discretion that made equitable
interpretations necessary and possible. . . . Not the courts but only the legislatures could
redress the grievances of the people, said a New Jerseyite in 1781, ‘because they are the
representatives of the people.’ . . . Legislatures should be the sole source of law.”); but see
Wood, Power and Liberty: Constitutionalism in the American Revolution (New York:
Oxford University Press, 2021), ch 6 (noting the fear of judicial power but explaining that
it began to be seen as a check upon the legislature in constitutional matters).
73
Opinion of Justices, 80 Mass 614, 620 (1859).
74
The text-and-history approach is increasingly used as the appropriate method for
constitutional interpretation. See, e.g., Dobbs v Jackson Women’s Health Org, 597 US
___, ___; ___ S Ct ___; ___ L Ed 2d ___ (2022); slip op at 9 (beginning with the
constitutional text before turning to history and tradition); New York State Rifle & Pistol
Ass’n, Inc v Bruen, 597 US ___, ___; ___ S Ct ___; ___ L Ed 2d ___ (2022); slip op at 10
(adopting “a test rooted in the Second Amendment’s text, as informed by history”).
75
See generally Widgeon v Eastern Shore Hosp Ctr, 300 Md 520; 479 A2d 921 (1984)
(discussing the early English cases); Woolhandler & Collins, Was Bivens Necessary?, 96
Notre Dame L Rev 1893, 1920 (2021) (“Bivens was supported by the Framers’
24
arguments were incidental to the cause of action and entitlement to damages. These cases
were common-law trespass actions in which the governmental defendant attempted to
defend his or her actions by claiming that those actions were legally justified. The
constitutional issue would arise to “negate a defendant’s plea of legal justification.” 76 In
many cases, the governmental official would claim immunity for his or her action under
federal law—the Constitution—but would lose that immunity if the official’s action was
unconstitutional. 77
expectations that trespass actions against officials would be a means of implementing the
Constitution.”); Vladeck, The Inconsistent Originalism of Judge-Made Remedies Against
Federal Officers, 96 Notre Dame L Rev 1869, 1871 (2021) (noting the “ ‘long history’ of
challenging completed unconstitutional conduct by federal officers, including the robust
regime of judge-made damages actions that persisted well into the twentieth century in
both state and federal courts”) (citation and emphasis omitted); Vladeck, The Disingenuous
Demise and Death of Bivens, 2019-2020 Cato Sup Ct Rev 263, 267-268 (2020) (noting the
early United States Supreme Court caselaw); Baker, The Minnesota Constitution as a
Sword: The Evolving Private Cause of Action, 20 Wm Mitchell L Rev 313, 322 (1994)
(“Other states have grounded the right to sue for constitutional violations in the common
law of England.”).
76
Was Bivens Necessary?, 96 Notre Dame L Rev at 1897; see also Amar, Of Sovereignty
and Federalism, 96 Yale L J 1425, 1506-1507 (1987) (“The structure of these pre-Bivens
cases was quite simple: The ultimate issue before the court concerned the federal
Constitution, but standing was conferred by the vertically-pendent state law cause of
action. Plaintiff would sue defendant federal officer in trespass; defendant would claim
federal empowerment that trumped the state law of trespass under the principles of the
supremacy clause; and plaintiff, by way of reply, would play an even higher supremacy
clause trump: Any federal empowerment was ultra vires and void because of Fourth
Amendment limitations on federal power itself. If, but only if, plaintiff could in fact prove
that the Fourth Amendment had been violated, defendant’s shield of federal power would
dissolve, and he would stand as a naked tortfeasor.”).
77
See Butz v Economou, 438 US 478, 490-491; 98 S Ct 2894; 57 L Ed 2d 895 (1978) (“As
these cases demonstrate, a federal official was protected for action tortious under state law
only if his acts were authorized by controlling federal law. ‘To make out his defence he
must show that his authority was sufficient in law to protect him.’ . . . Since an
unconstitutional act, even if authorized by statute, was viewed as not authorized in
25
Plaintiffs point to such a case from our Court, Bishop v Vandercook, as evidence
that we have long recognized constitutional torts. 78 But Bishop was a traditional common-
law action. In Bishop, the Governor had issued an order sending state troops to help crack
down on bootleggers who were “lawless and viciously inclined drivers of automobiles[.]”79
A few months later, with troops in place, the Governor authorized them to place a log
across Dixie Highway to stop travelers. 80 He required that warnings be given and
contemplation of law, there could be no immunity defense.”); Kian, The Path of the
Constitution: The Original System of Remedies, How it Changed, and How the Court
Responded, 87 NYU L Rev 132, 135 (2012) (“Those who suffered a violation of their rights
were able to bring suit, in common law or equity, against the responsible agent. . . . [I]f
that agent did something unconstitutional, he would have no legally cognizable defense for
violating the plaintiff’s rights.”); New Law, 104 Harv L Rev at 1781 (“Sovereign immunity
and related doctrines generally barred direct suits against the government. In many cases,
a plaintiff denied relief from the sovereign could seek alternative redress from the official
through whom the government had acted; a tradition arose under which an official who
pleaded a defense of official authority would be ‘stripped’ of that shield when his conduct
violated the Constitution, and hence held liable like a private tortfeasor.”); Constitutional
Remedies, 69 Colum L Rev at 1122-1123 (“In mitigation of the rigors of the doctrine of
sovereign immunity, the view developed that the governmental officer acting under a void
statute, or outside the bounds of a valid statute, may be regarded as stripped of his official
character, and answerable, like any private citizen, for conduct which, when attributable to
a private citizen, would be an offense against person or property.”).
Some of the cases commonly cited by proponents of Bivens, such as Little v
Barreme, 6 US (2 Cranch) 170; 2 L Ed 243 (1804), were trespass actions in which the
defense did not implicate any constitutional issues. See generally The Path of the
Constitution, 87 NYU L Rev at 147 (noting that Little did not involve constitutional rights
but simply “affirmed a dynamic” that the “government could not exercise power not
delegated to it”). It is difficult to see how such a case could stand for the proposition that
the founders expected that damages remedies would be available through tort actions when
a federal officer violated the Constitution.
78
Bishop v Vandercook, 228 Mich 299; 200 NW 278 (1924).
79
Id. at 303 (quotation marks omitted).
80
Id.26
precautions be taken to allow “ ‘good citizens’ ” to get through. 81 The plaintiff was driving
down the road at 50 to 60 mph. The troopers used flashlights to signal for him to stop.
When he did not, they “fired a signal.” Other troopers placed the log across the highway
and then used flashlights and red lanterns to signal the driver to stop, but without success.
The plaintiff crashed into the log, and liquor was subsequently found in his car. 82
The plaintiff brought a tort action to recover damages for harm to the car and
personal injuries and won a money verdict. 83 The claim was that the defendants’ actions
“constituted a purposeful and wilful trespass.” 84 Thus, from the start, Bishop is not the
same as Smith: Bishop was never an action under the Constitution. In fact, the Constitution
barely factors into the case aside from the stray line of dicta that plaintiffs have seized
upon. Instead, the issue was whether the defendants could claim immunity because they
were acting under direction of the Governor. 85 Specifically, they cited a statute that
allowed troops to be dispatched to aid civil authorities—the command officer was to “be
subject to the general direction of the sheriff or other civil officer who shall require his
aid.” 86 While serving, “troops shall always be amenable to the civil authorities as
represented by the governor, and shall be privileged from prosecution by the civil
81
Id.82
Id. at 304.
83
Id. at 305.
84
Id.85
Id.86
Id. at 305, quoting 1917 PA 53, § 41 (quotation marks omitted).
27
authorities, except by direct order of the governor, for any acts or offenses alleged to have
been committed while on such service.” 87
The sum of the Court’s holding was the rejection of the defendants’ “contention that
the State troops in time of peace, and in actual service in aid of civil authority, are
privileged from civil accountability for wrongs committed, except by direct order of the
governor.” 88 We read the statute as simply “stay[ing] interference by the civil authorities,
but . . . not clos[ing] the courts to persons wronged by military lawlessness.” 89 In our
analysis, we stated that “[n]o legislative enactment can confer power upon the chief
executive of the State to render the military immune from civil responsibility for wrongs
done to citizens in time of peace, or grant to the military security beyond that accorded the
civil officers in whose aid they act.” 90
The Court also mentioned that the Constitution subordinated the military to civilian
authority and could be used only to aid that authority. 91 The Court then made the statement
used by plaintiffs here:
The emphatic provision of the Constitution (Art. 2, § 6) of the State,
that: “the military shall in all cases and at all times be in strict subordination
to the civil power,” is not an empty phrase, but the wisdom of the ages
expressed in a succinct mandate. Any transgression of this fundamental law
by military officers renders them liable to respond in damages for injury done
87
Vandercook, 228 Mich at 305-306, quoting 1917 PA 53, § 41 (quotation marks omitted).
88
Vandercook, 228 Mich at 306.
89
Id.90
Id. at 308.
91
Id. at 309-310.
28
no matter how high the command to so act can be traced. Mitchell v.
Harmony, 13 How. (U. S.) 115; Bates v. Clark, 95 U. S. 204.[92]
Immediately following this statement, the Court concluded that the acts at issue were not
authorized by the Governor. 93 The Court made clear the holding was simply that the
defendants could be liable under tort law. 94
Bishop therefore does not stand for the proposition that monetary damages can be
claimed in actions arising under the Constitution. In proper context, the line plaintiffs rely
on merely meant that the military officers could be liable for damages in a common-law
tort action if their actions exceeded civil authority. The source of the liability did not flow
from the Constitution—it does not arise from the provision subordinating the military.
Rather, the military officers could be liable based on tort law, just like anyone else. The
only difference was the potential defense that military members might raise of following
orders.
This conclusion is further confirmed by the sources Bishop cited: Mitchell v
Harmony 95 and Bates v Clark. 96 Both cases concerned actions for “trespass.” In the
former, a merchant trailing United States troops during the Mexican-American War was
ordered to remain with the troops—his request to depart from the army was denied. 97
92
Id. at 310.
93
Id.94
Id. at 314-315.
95
Mitchell v Harmony, 54 US (13 How) 115; 14 L Ed 75 (1851).
96
Bates v Clark, 95 US 204; 24 L Ed 471 (1877).
97
Mitchell, 54 US at 129.
29
Subsequently, the plaintiff’s items were captured by the Mexican army and he sued the
federal army officer who had earlier detained him. 98 The Court held that the officer could
be liable. 99 In Bates, the plaintiff’s whiskey was confiscated by military officers and the
Court held that the “officers can no more protect themselves than civilians in time of peace
by orders emanating from a source which is itself without authority.” 100 A statute allowed
military officers to seize liquor in Indian country, but the plaintiffs were not in Indian
country when their liquor was seized. The Court observed that the officers’ good-faith
belief that the plaintiffs were in Indian country might excuse them from punitive damages
but that it would not preclude the action itself.101 In citing these cases, Bishop was not
establishing a rule allowing damages for violations of the Constitution—neither case
involved the Constitution at all. And not surprisingly, Bishop itself has, as far as I can tell,
never been cited for that proposition either.
The earlier English common-law cases are even further from the mark. In Wilkes v
Wood, for example, the plaintiff sued for trespass when a government officer entered the
plaintiff’s house, broke his locks, and seized his papers. 102 As the court said, the “present
cause chiefly turned upon the general question, whether a Secretary of State has a power
to force persons houses, break open their locks, seize their papers, &c. upon a bare
98
Id. at 129-130.
99
Id. at 135.
100
Bates, 95 US at 209.
101
Id.102
Wilkes v Wood, 98 Eng Rep 489, 489 (King’s Bench, 1763).
30
suspicion of a libel by a general warrant, without name of the person charged.” 103 Under
neither the English constitution nor statutory law was there “legal authority . . . to justify
the action.” 104 Although the court emphasized the dangers of allowing the government to
have such authority, it is clear that the case was a typical trespass action that the plaintiff
could have brought against any private individual—the only difference being that the
defendant could defend based on alleged legal authority for his actions. 105 And, of course,
another critical distinction between these cases and Bivens and Smith is that they were
decided under the unwritten and amorphous British constitution. 106 The significance of the
written constitution, created in our states and then the national government, represented
something profoundly new, the significance of which had to be worked out over time. 107
103
Id. at 490.
104
Id.
105
See also Huckle v Money, 95 Eng Rep 768, 768-769 (King’s Bench, 1763) (representing
essentially the same situation); Widgeon, 300 Md at 527 (“Again, in Entick v. Carrington,
19 How. St. Tr. 1029 (1765), the plaintiff brought a trespass action against the King’s
messengers for unjustifiably entering his house and seizing his books and papers, and the
jury awarded damages to the plaintiff. Lord Camden, after a lengthy historical review,
upheld the damage award on the ground that the warrant to seize the papers was ‘illegal
and void . . . .’ ”) (emphasis added).
106
Norton, Governing Britain: Parliament, Ministers and Our Ambiguous Constitution
(Manchester: Manchester University Press, 2020), pp 7, 10-11 (noting that the British
constitution’s “history and form give rise to ambiguities and uncertainties” and that the
British constitution can refer to “a body of laws (statutes and common law), conventions
and practices that have developed over time”).
107
See Wood, Power and Liberty: Constitutionalism in the American Revolution (New
York: Oxford Univ Press, 2021), pp 49-50 (“Although Americans were convinced that
constitutions were decidedly different from legislation, the distinction was not easy to
maintain. They hadn’t yet imagined what a constitution meant.”); Gienapp, The Second
Creation: Fixing the American Constitution in the Founding Era (Cambridge: Belknap
Press of Harvard University Press, 2018), pp 3, 5 (“When the Constitution was born, it was
31
It has been recognized, therefore, that these types of cases do not stand for the
proposition that courts have historically implied causes of action in the constitutional text.
The cause of action in these cases arose from the common law. 108 And those actions were
never understood to be coterminous with constitutional provisions, i.e., a common-law
action might or might not adequately redress a constitutional violation. 109 In addition, the
framers of the state and federal Constitutions would have also recognized that the
legislature could repeal the common law. 110 Consequently, it is hard to see how their mere
unclear what kind of thing it was. . . . When it first appeared, the new Constitution was a
completely unprecedented kind of object; as a result, describing and interpreting it was an
entirely novel exercise.”) (paragraph structure omitted).
108
The Supreme Court of Texas reached a similar conclusion with regard to caselaw in that
state, which had previously recognized a false-imprisonment claim for monetary damages
against a government officer. Bouillion, 896 SW2d at 150, discussing Gold v Campbell,
54 Tex Civ App 269; 117 SW 463 (1909). “However,” the court stated, “the cause of
action alleged in Gold was the traditional common law tort of false imprisonment, not a
tort for the violation of constitutional rights. Gold did not create a new cause of action;
rather, it recognized that an officer who acts outside the scope of his authority is amenable
to suit under a traditional common law cause of action.” Id. Therefore, the court
“disapprove[d] of any interpretation of Gold that concludes it authorized a constitutional
tort cause of action.” Id.109
See Constitutional Remedies, 69 Colum L Rev at 1121 (1969) (“Some conduct violative
of the Constitution is not of a kind that would be actionable at common law.”).
110
See Const 1963, art 3, § 7 (“The common law and the statute laws now in force, not
repugnant to this constitution, shall remain in force until they expire by their own
limitations, or are changed, amended or repealed.”); Nelson, Americanization of the
Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Athens:
University of Georgia Press, 1994), p 90 (noting the development of written constitutions
in this period and stating “the power to modify or even entirely repeal the common law[]
now fell explicitly within the jurisdiction of the legislature”); see generally Redish,
Constitutional Remedies as Constitutional Law, 62 BC L Rev 1865, 1868 (2021) (“Many
have concluded that constitutional remedies present a sub-constitutional issue, and are
therefore fully within the power of Congress to regulate as it sees fit.”).
32
expectation of the availability of such common-law actions could be interpreted as a
constitutional requirement that such actions exist. 111 Even so, the expected applications of
constitutional text, not reflected in the text itself, are usually entitled to little or no
interpretive weight. 112
111
Some have nonetheless made that argument. See Vázquez, Bivens and the Ancien
Regime, 96 Notre Dame L Rev 1923, 1929 (2020) (“This history is not relevant because it
supports an analogous federal judicial power to create damage remedies in a common-law
fashion. Rather, this history is important because it reflects the understanding when the
Constitution was ratified, and subsisting long thereafter, that damages were an appropriate
remedy for constitutional violations by federal (and state) officials.”); The Path of the
Constitution, 87 NYU L Rev at 134 (noting the original expectation that “the Constitution
was to be implemented through remedies available for violations of common law rights”).
112
See McGinnis & Rappaport, Original Interpretive Principles as the Core of
Originalism, 24 Const Comment 371, 378 (2008) (noting that while expected applications
can provide some evidence of original meaning, “[t]he original meaning of the words
would not normally be defined by the expected applications, but instead by the meaning
that people at the time would understand the words to have”). In this regard it is
noteworthy, as some have argued, that these expectations might have been stymied over
time as common-law actions against governmental officers became increasingly more
difficult because of trends such as officer immunity and practical challenges such as
parsimonious views of damages. The Path of the Constitution, 87 NYU L Rev at 149-161.
But even to the extent the framers conceived of common-law remedies as a manner for
vindicating constitutional rights, these changes were baked into the system because the
common law has always been subject to change. Certainly, constriction of common-law
actions against officers does not justify the judicial creation of constitutional-damages
actions simply so that the prospects facing plaintiffs today approximate those plaintiffs
experienced at the founding. Such an ends-driven approach is anathema to the rule of law.
1 Story, Commentaries on the Constitution of the United States (4th ed), §§ 425, 426,
pp 313, 314 (“A power, given in general terms, is not to be restricted to particular cases
merely because it may be susceptible of abuse, and if abused may lead to mischievous
consequences. . . . [A] rule of equal importance is not to enlarge the construction of a given
power beyond the fair scope of its terms merely because the restriction is inconvenient,
impolitic, or even mischievous.”) (paragraph structure omitted).
33
C. CONCLUSION
For these reasons, nothing in the text or history of our Constitution supports finding
a general cause of action for damages based on constitutional violations or a specific cause
of action for such damages regarding the provision at issue here, the Due Process Clause.
Consequently, in allowing such claims, I believe that Smith was wrongly decided and that
the majority compounds this error today by broadening Smith.
Seeking to avoid this conclusion, the majority notes that lawsuits can be filed to
enjoin violations of the Constitution—I agree—and thus the majority contends that my
complaint is not with implying a cause of action but with the relief being granted, i.e.,
money damages. 113 This Court has already addressed the substance of this argument:
There is obviously a distinction between a judicial decree invalidating
unconstitutional governmental action and the adoption of judicially created
doctrines that effectively serve as de facto statutory enactments to implement
Const 1963, art 1, § 2. The former is classic judicial review recognized as a
core judicial function since, at least, the decision in Marbury v Madison, 5
US (1 Cranch) 137; 2 L Ed 60 (1803). The latter is an improper usurpation
of legislative authority. To fail to heed this limitation on judicial power
would be to fail “to maintain the separation between the Judiciary and the
other branches.” [Lewis, 464 Mich at 788-789 (citation omitted).]
A suit for an injunction seeks to prevent or end a constitutional violation; a cause of action
for money damages seeks to remedy past constitutional violations. The former have been
available from the start of constitutional litigation, whereas the latter are a creature of the
twentieth-century judiciary.
113
In this regard, even, my position is essentially the same one staked out by the United
States Supreme Court, which allows enforcement of the Constitution through suits for
injunctions but has severely constricted the availability of implied causes of actions for
damages. See, e.g., Ziglar, 582 US at ___; 137 S Ct at 1862 (noting the availability of
injunctive relief for constitutional violations).
34
Critically, the injunctive remedy arises from an equitable action seeking to invoke
a court’s equitable powers rather than from a legal cause of action grounded in the
constitutional text. 114 As the Supreme Court has noted, “The ability to sue to enjoin
unconstitutional actions by state and federal officers is the creation of courts of equity, and
reflects a long history of judicial review of illegal executive action, tracing back to
England.” 115 For that reason, the Court held that a suit for an injunctive remedy to enforce
a constitutional provision—the Supremacy Clause in that case—did not “rest[] upon an
implied right of action contained in the” constitutional text. 116 Accordingly, recognition
of the ability to invoke a court’s equitable powers to prevent or restrain constitutional
violations is not inconsistent with a rejection of inferring causes of action for damages from
the constitutional text.
III. STARE DECISIS
Given this analysis, I believe not only that the majority’s expansion of Smith is
wrong but also that Smith itself should be overruled. In addition to concluding a precedent
was wrongly decided—which I have established above with regard to Smith—we must
114
See 13A Wright & Miller, Federal Practice and Procedure (Apr 2022 update), § 3531.6
(“Rather than infer a cause of action directly from a constitutional provision, courts may
resort to finding a cause of action in equity for injunctive relief . . . .”).
Armstrong v Exceptional Child Ctr, Inc, 575 US 320, 327; 135 S Ct 1378; 191 L Ed 2d
115471 (2015).
116
Id.; see also Fed Defenders of NY, Inc v Fed Bureau of Prisons, 954 F3d 118, 133-134
(CA 2, 2020) (noting, in the context of Sixth Amendment claims, the “narrow but well-
drawn line of precedent establishing that a plaintiff may invoke the court’s equitable
powers to enjoining a defendant from violating constitutional provisions that do not,
themselves, grant any legal rights to private plaintiffs”).
35
examine three other factors before overruling it: (1) whether the rule has proved not to be
practically workable, (2) whether reliance interests in the rule would lead to hardships if
the rule were overruled, and (3) “whether changes in the law or facts no longer justify the
questioned decision.” 117
With regard to the first factor, Smith defies practicable workability. Critically, until
the majority’s thunderbolt today, a majority of the Court has never even agreed on a test
for discerning when causes of action can be inferred. And although the Court of Appeals,
and a plurality of this Court in Mays, may have applied Justice BOYLE’s multifactor
approach, that approach is awash in policy considerations that leave parties and courts no
clear guidance on whether a cause of action will be inferred in any given case. Most
clearly, the open-ended final factor—allowing consideration of “various other factors”—
gives courts permission to consider anything they would like to create a cause of action. 118
With regard to the second factor, any reliance interests must be greatly diminished
by the fact that a majority of this Court has never inferred a cause of action for money
damages under Smith—not even in Smith itself. As the United States Supreme Court
recently explained in the criminal law context, “Continuing to articulate a theoretical
exception that never actually applies in practice offers false hope to defendants, distorts the
law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.
Moreover, no one can reasonably rely on an exception that is non-existent in practice, so
117
Devillers v Auto Club Ins Ass’n, 473 Mich 562, 584; 702 NW2d 539 (2005).
118
Smith, 428 Mich at 648-652 (BOYLE, J., concurring in part and dissenting in part).
36
no reliance interests can be affected by forthrightly acknowledging reality.” 119 In addition,
the general rule of allowing monetary damages is diffuse enough—in that it applies to all
relevant constitutional rights—that it is difficult to see what institutions have formed or
behavior has changed in reliance upon it. That is, the possibility of obtaining damages for
constitutional violations does not seem to have led individuals to enter into relationships
or associations or engage in any activities that would be disrupted by overruling Smith.
Finally, the third factor also weighs in favor of overruling Smith. As discussed,
there was no precedent from this state supporting Smith. To the extent it could claim any
supporting authority, that authority—Bivens—has since been severely undercut. A
damages claim will not be inferred in federal court if “there is any reason to think that
Congress might be better equipped to create a damages remedy.” 120 Courts will rarely, if
ever, be better placed than a legislature to create damages remedies. 121
Accordingly, I would overrule Smith and put an end to our usurpation of the
Legislature’s authority to create causes of action for damages for constitutional violations.
IV. APPLICATION OF SMITH
As a last consideration, it is worth addressing how this case would have been
resolved if the majority had simply applied Justice BOYLE’s test. Just two terms ago, three
119
Edwards v Vannoy, 593 US ___, ___; 141 S Ct 1547, 1560; 209 L Ed 2d 651 (2021).
120
Egbert, 596 US at ___ (opinion of the Court); slip op at 7 (emphasis added).
121
Id. at ___ (Gorsuch, J., concurring); slip op at 2 (“When might a court ever be ‘better
equipped’ than the people’s elected representatives to weigh the ‘costs and benefits’ of
creating a cause of action? It seems to me that to ask the question is to answer it.”)
(paragraph structure omitted).
37
justices in the current majority noted that this test was “persuasive.” 122 The majority
opinion in this case provides nothing of substance to explain why the test has somehow
become less persuasive. The majority nonetheless casts it aside, perhaps because applying
it here would not yield a cause of action.
The first question under the test is whether a custom or policy caused the
constitutional violation. 123 Defendant, the Unemployment Insurance Agency, argues there
was no custom or policy because nothing required it to intercept tax refunds or garnish
wages—it simply employed software that identified potential fraud. I will assume for
present purposes that this requirement is satisfied because, even if it was, the agency would
still prevail on the other factors. First, I will address “the degree of specificity of the
constitutional protection[.]” 124 While the Due Process Clause, as interpreted by the courts,
covers a broad swath of territory, the general procedural components of the clause are
clear. 125 But how those requirements apply in any given case is a different matter. As the
Court of Appeals recognized in the present case, “due process is flexible and the procedural
protections that it offers may vary depending on the circumstances . . . .” 126 Indeed, Justice
BOYLE herself indicated that the Due Process Clause does not offer sufficiently clear
122
Mays, 506 Mich at 188 (plurality opinion by BERNSTEIN, J.).
123
Smith, 428 Mich at 642-643 (BOYLE, J., concurring in part and dissenting in part).
124
Mays, 506 Mich at 196 (plurality opinion by BERNSTEIN, J.).
125
Orth, Due Process of Law: A Brief History (Lawrence: University Press of Kansas,
2003), p 88 (noting that the United States Supreme Court had “spelled out exactly what
[due process’s hearing requirement] means”).
Bauserman v Unemployment Ins Agency (On Remand), 330 Mich App 545, 569; 950
126
NW2d 446 (2019).
38
protection. 127 Thus, the clarity of the constitutional provision does not support a damages
remedy.
I do not find the “existence and clarity of the constitutional violation itself” to be
sufficient to support plaintiffs’ argument in this case. 128 Plaintiffs received notices in the
form of letters, which detailed how to appeal; both plaintiffs here had the opportunity to
and did, in fact, file an appeal. Plaintiffs’ amended complaint stated that the lack of due
process was in the use of the automated decision-making system because it determined
guilt without meaningful notice or opportunity to be heard before imposition of the
penalties. If the penalties were truly imposed before notice and a hearing, then this might
state a due-process claim. But it is not clear that this is the case here. In general, the
automated system makes the initial determination, but the amended complaint
acknowledged that notice was sent. The problem, according to the amended complaint,
was that the notice was practically useless because it was sent through the online
unemployment system, which former recipients of unemployment benefits were unlikely
to check. As the agency’s brief notes, however, plaintiffs here elected to receive notices
through the online account. The amended complaint also states that plaintiffs wrote to
defendant and submitted online appeals, although they never received a response. Of
course, if it is true that they never received a response, then perhaps there was a due-process
127
See Smith, 428 Mich at 651 (BOYLE, J., concurring in part dissenting in part) (“These
search and seizure protections are, however, relatively clear-cut in comparison to the Due
Process and Equal Protection Clauses.”).
128
Mays, 506 Mich at 196 (plurality opinion by BERNSTEIN, J.).
39
violation. But plaintiffs received numerous notices and had a number of opportunities to
object to the agency’s action.
The next factor is the “support for the propriety of a judicially inferred damages
remedy in any text, history, and previous interpretations of the specific provision[.]” 129 As
discussed above, nothing in the text or history of the Due Process Clause supports a
damages remedy. With regard to precedent, we have never inferred damages remedies for
procedural due-process violations. And the United States Supreme Court likewise has
never “extended a Bivens remedy to an alleged substantive or procedural due process
violation of the Fifth Amendment by a federal official.” 130
The next consideration is “the availability of another remedy[.]” 131 In this regard,
the United States Supreme Court’s decision in Schweiker v Chilicky is instructive. 132 In
that case, the Court rejected a Bivens claim involving the federal Due Process Clause. 133
The plaintiffs were individuals whose Social Security disability benefits were terminated—
most of the plaintiffs appealed and were restored benefits with full retroactivity, while the
remaining plaintiff filed a new application, was granted benefits, and received almost all
the unpaid benefits for the period he had been denied benefits. 134 As here, the plaintiffs’
129
Id.
130
Doe v United States, 381 F Supp 3d 573, 612 (MD NC, 2019).
131
Mays, 506 Mich at 196 (plurality opinion by BERNSTEIN, J).
132
Schweiker v Chilicky, 487 US 412; 108 S Ct 2460; 101 L Ed 2d 370 (1988).
133
Id. at 414.
134
Id. at 417.
40
due-process claims centered on the allegedly unconstitutional procedures by which the
agencies wrongfully terminated their benefits. 135 In rejecting the claim, the Court noted
the comprehensive review procedures available to the plaintiffs through the relevant
legislation. The process enabled claimants to appeal wrongful terminations with new
evidence and arguments along the way, ending in judicial review (which could include
review of constitutional claims). 136
The point of contention in Schweiker was that the review process enacted by
Congress did not provide for money damages when unconstitutional conduct led to the
wrongful denial of benefits. 137 Looking to its caselaw, the Court explained that Congress’s
failure to provide for “ ‘complete relief’ ” was not a reason to infer a damages remedy. 138
The bare fact that some injuries would go unredressed was not determinative because
Congress had created an elaborate system. “[T]he presence of alleged unconstitutional
conduct that is not separately remedied under the statutory scheme” did not “imply that the
statute has provided ‘no remedy’ for the constitutional wrong at issue.” 139 Imposing
personal liability for acts within that system would no doubt disrupt Congress’s balancing
135
Id. at 418.
136
Id. at 424.
137
Id.138
Id. at 425, quoting Bush v Lucas, 462 US 367, 388; 103 S Ct 2404; 76 L Ed 2d 648(1983) (noting that the question of whether to infer a remedy “obviously cannot be
answered simply by noting that existing remedies do not provide complete relief for the
plaintiff”).
139
Schweiker, 487 US at 427-428.
41
of interests. 140 Moreover, the harm for which the plaintiffs sought damages—
“consequential damages for hardships resulting from an allegedly unconstitutional denial
of a statutory right”—could not “be separated from the harm resulting from the denial of
the statutory right.” 141 Summing up, the Court stated:
We agree that suffering months of delay in receiving the income on
which one has depended for the very necessities of life cannot be fully
remedied by the “belated restoration of back benefits.” The trauma to
respondents, and thousands of others like them, must surely have gone
beyond what anyone of normal sensibilities would wish to see imposed on
innocent disabled citizens. Nor would we care to “trivialize” the nature of
the wrongs alleged in this case. Congress, however, has addressed the
problems created by state agencies’ wrongful termination of disability
benefits. Whether or not we believe that its response was the best response,
Congress is the body charged with making the inevitable compromises
required in the design of a massive and complex welfare benefits
program. . . . Congress has discharged that responsibility to the extent that it
affects the case before us, and we see no legal basis that would allow us to
revise its decision.[142]
The Court of Appeals in the present case distinguished Schweiker on the
unpersuasive ground that it “did not involve highly egregious facts such as those alleged
in the instant case.” 143 In particular, the Court of Appeals noted that the plaintiffs in
Schweiker were simply denied benefits whereas plaintiffs here had their own property
taken. This distinction, even if true, is irrelevant. The egregiousness of the conduct is not
a factor that this Court or the United States Supreme Court has ever considered or endorsed.
140
Id. at 425.
141
Id. at 428.
142
Id. at 428-429.
143
Bauserman (On Remand), 330 Mich App at 575.
42
Moreover, it is unclear whether the Court of Appeals was correct: are disability claimants
who depended on government benefits to survive in a better position to weather the
termination of those benefits than the plaintiffs here are in to withstand garnishments and
collection actions? It is certainly possible that the disabled plaintiffs in Schweiker were
even more deeply affected by the wrongful denial of benefits than plaintiffs in this case.
As in Schweiker, the procedures available to plaintiffs in the present case were
extensive. Unemployment claimants can protest any determination made with regard to
recoupment of overpayments. 144 If a protest is made—or the claimant asks for a hearing
before an administrative law judge—the agency will review its decision and can affirm,
modify, or reverse it, or send the protest for an administrative hearing. 145 “The Agency
can also review a prior determination in the absence of a protest so long as it does so
within” a certain period. 146 Even if the protest is not filed within the required period, the
agency can still review the earlier determination. 147 “A claimant or employer who
disagrees with a redetermination [by the agency] can appeal the decision to an
administrative law judge . . . .” 148 That judge “shall decide the rights of the interested
parties” and render a decision with findings of fact and supporting rationales. 149 After this
144
Dep’t of Licensing & Regulatory Affairs/Unemployment Ins Agency v Lucente, 508
Mich 209, 223-225; 973 NW2d 90 (2021), discussing MCL 421.32a(1).
145
MCL 421.32a(1).
146
Lucente, 508 Mich at 224-225.
147
See id., discussing MCL 421.32a.
148
Lucente, 508 Mich at 225, citing MCL 421.32a(1) and (3).
149
MCL 421.33(1).
43
decision, claimants have yet another opportunity to prevail within the agency by appealing
to the Michigan Compensation Appellate Commission. 150 From there, the claimant can
appeal in the circuit court and can seek further appellate review of any decision rendered
by the court. 151
This elaborate scheme provides ample opportunities for the agency to correct any
mistakes internally before judicial review is invoked. It is at least as extensive as the Social
Security disability review process discussed in Schweiker. Indeed, the agency here used
this redetermination process to undo its erroneous decisions within just a few months of
plaintiffs’ challenges. 152 The Court of Appeals here required far more than the United
States Supreme Court ever has when deciding that the statutory framework in this case
failed to provide a suitable alternative remedy because it did not allow for monetary
damages or a way to raise constitutional due-process challenges. Under Schweiker and the
caselaw discussed there, it does not matter if the alternative remedy is incomplete and fails
to provide monetary damages. Moreover, the agency judges handling Social Security
disability reviews also lack the power to adjudicate constitutional challenges. 153 For these
reasons, I believe that the alternative remedies here were adequate.
150
Lucente, 508 Mich at 225-226, citing MCL 421.34.
151
MCL 421.38.
152
Bauserman v Unemployment Ins Agency, 503 Mich 169, 175-176; 931 NW2d 539(2019).
153
See Carr v Saul, 593 US ___, ___; 141 S Ct 1352, 1361-1362; 209 L Ed 2d 376 (2021)
(noting and agreeing with internal Social Security guidance explaining that administrative
law judges (ALJs) lacked the power to rule on a constitutional challenge); Culclasure v
Comm’r of Social Security Admin, 375 F Supp 3d 559, 569 (ED Penn, 2019) (noting that
ALJs were powerless to decide the constitutional question raised in the case).
44
With regard to Justice BOYLE’s last factor, I see no other “factors” relevant to this
case that would justify a damages remedy. I therefore believe that a damages remedy
cannot properly be inferred under this test. Perhaps this clear result explains why the
majority adopts a brand new test under which money damages will almost always be
available.
V. CONCLUSION
The Court’s holding today lacks any basis in our common-law powers or the
constitutional text. It represents a gross overreach given that the judicial branch has now
seized legislative power to fashion remedies for all manner of constitutional violations.
The Constitution, our foundational document and source of law, has been transformed into
a wellspring of potential new claims against the state and its political subdivisions. And
under today’s ruling, the Legislature is largely powerless to act: it can create remedies for
constitutional violations but unless we bless them as “adequate”—whatever that means to
the members of the Court serving at that time—we will superimpose our own preferred
remedies. A deluge of cases and a swelling of taxpayer liability will surely ensue. I dissent.
David F. Viviano
Brian K. Zahra
45
STATE OF MICHIGAN
SUPREME COURT
GRANT BAUSERMAN, KARL
WILLIAMS, and TEDDY BROE, on Behalf
of Themselves and All Others Similarly
Situated,
Plaintiffs-Appellees,
v No. 160813
UNEMPLOYMENT INSURANCE
AGENCY,
Defendant-Appellant.
CLEMENT, J. (dissenting).
Because plaintiffs do not ask us to reconsider the test Justice BOYLE set out in her
partial concurrence in Smith v Dep’t of Pub Health, 428 Mich 540; 410 NW2d 749 (1987),
and replace it with a more lenient test, I would simply apply that test to their claims. For
the reasons stated in Part IV of Justice VIVIANO’s dissent, under that test, I do not believe
that we should infer a damages remedy in the instant case. Therefore, I dissent.
Elizabeth T. Clement