If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
AFT, AFT MICHIGAN, ALPENA FOR PUBLICATION
MONTMORENCY-ALCONA ISD October 15, 2020
PARAPROFESSIONALS, ALPENA- 9:15 a.m.
MONTMORENCY-ALCONA ISD TEACHERS,
ARENAC EASTERN FEDERATION, BAY
ARENAC SKILLS, BROWN CITY
EMPLOYEES ORGANIZATION, BROWN CITY
FEDERATION OF TEACHERS, CENTER
FEDERATION, CHEBOYGAN OTSEGO
PRESQUE ISLE INTERMEDIATE
PARAPROFESSIONALS AND BUS
PERSONNEL, CHEBOYGAN-OTSEGO
PRESQUE ISLE ISD TEACHERS,
CHEBOYGAN-OTSEGO PRESQUE ISLE
SUPPORT PERSONNEL, CHESANING UNION
AUXILIARY SERVICE EMPLOYEES, CLARE-
GLADWIN ISD FEDERATION, CRAWFORD
AUSABLE BUS DRIVERS FEDERATION,
CRAWFORD AUSABLE
CUSTODIANS/SECRETARIAL FEDERATION,
CRAWFORD AUSABLE SUPPORT STAFF
FEDERATION, CRAWFORD AUSABLE
FEDERATION OF TEACHERS, CRESTWOOD
FEDERATION OF TEACHERS, DEARBORN
FEDERATION OF SCHOOL EMPLOYEES,
DEARBORN FEDERATION OF TEACHERS,
DETROIT ASSOCIATION OF EDUCATIONAL
OFFICE EMPLOYEES, DETROIT
FEDERATION OF PARAPROFESSIONALS,
DETROIT FEDERATION OF TEACHERS,
EAST DETROIT FEDERATION OF
TEACHERS, ECORSE FEDERATION OF
TEACHERS, FAIRVIEW FEDERATION OF
TEACHERS, GLEN LAKE FEDERATION OF
TEACHERS, HALE FEDERATION OF
TEACHERS, HAMTRAMCK FEDERATION OF
TEACHERS, HEMLOCK AUXILIARY
-1-
SERVICE EMPLOYEES, HEMLOCK
FEDERATION OF TEACHERS, HENRY FORD
COMMUNITY COLLEGE ADJUNCT
FACULTY ORGANIZATION, HENRY FORD
COMMUNITY COLLEGE FEDERATION OF
TEACHERS, HIGHLAND PARK FEDERATION
OF PARAPROFESSIONALS, HIGHLAND
PARK FEDERATION OF TEACHERS, HURON
VALLEY CONTINUING EDUCATION, IMLAY
CITY FEDERATION OF TEACHERS, INKSTER
FEDERATION OF TEACHERS, IOSCO ISD
FEDERATION OF TEACHERS, IOSCO ISD
INTERMEDIATE FEDERATION AUXILIARY
EMPLOYEES, KINGSLEY FEDERATION OF
TEACHERS, KIRTLAND COMMUNITY
COLLEGE FEDERATION OF TEACHERS,
LAKE CITY SUPPORT STAFF FEDERATION,
LAKE CITY TEACHERS &
PARAPROFESSIONALS FEDERATION, LAKE
SHORE FEDERATION OF ED SECRETARIES,
LAKE SHORE FEDERATION OF TEACHERS,
LAKE SHORE FEDERATION SUPPORT
STAFF, LAMPHERE FEDERATION OF
PARAPROFESSIONALS, LAMPHERE
FEDERATION OF TEACHERS, LANSING
COMMUNITY COLLEGE ADMINISTRATIVE
ASSOCIATION, LES CHENEAUX
FEDERATION OF SUPPORT STAFF, LES
CHENEAUX FEDERATION OF TEACHERS,
MACOMB INTERMEDIATE FEDERATION OF
PARAPROFESSIONALS, MACOMB
INTERMEDIATE FEDERATION OF
TEACHERS, MELVINDALE/NAP
FEDERATION OF TEACHERS,
MELVINDALE/NAP PARAPROFESSIONALS,
MIDLAND FEDERATION OF
PARAPROFESSIONALS, MIDLAND ISD
FEDERATION OF PARAPROFESSIONALS,
MIDLAND ISD FEDERATION OF TEACHERS,
NORTHVILLE FEDERATION OF
PARAPROFESSIONALS, ONAWAY
FEDERATION OF SCHOOL RELATED
PERSONNEL, ONAWAY FEDERATION OF
TEACHERS, PLYMOUTH-CANTON
COMMUNITY SCHOOLS SECRETARIAL
UNIT, PLYMOUTH-CANTON FEDERATION
-2-
OF PLANT ENGINEERS, ROMULUS
FEDERATION OF PARAPROFESSIONALS,
ROSEVILLE FEDERATION OF TEACHERS,
RUDYARD FEDERATION OF AIDES,
RUDYARD FEDERATION OF TEACHERS,
SAGINAW ISD FEDERATION OF TEACHERS,
TAWAS AREA FEDERATION OF TEACHERS,
TAYLOR FEDERATION OF TEACHERS,
UTICA FEDERATION OF TEACHERS, VAN
DYKE EDUCATIONAL ASSISTANTS
FEDERATION, VAN DYKE PROFESSIONAL
PERSONNEL, WARREN WOODS
FEDERATION OF PARAPROFESSIONALS,
WASHTENAW INTERMEDIATE SCHOOL
EMPLOYEES FEDERATION, WATERFORD
ASSOCIATION OF SUPPORT PERSONNEL,
WAYNE COUNTY COMMUNITY COLLEGE
FEDERATION OF TEACHERS, WAYNE
COUNTY COMMUNITY COLLEGE
PROFESSIONAL & ADMINISTRATIVE
ASSOCIATION, WAYNE COUNTY RESA
SALARIED STAFF, WEXFORD-MISSAUKEE
ISD FEDERATION OF TEACHERS, and
WHITEFISH TOWNSHIP FEDERATION OF
TEACHERS,
Plaintiffs-Appellees/Cross-
Appellants,
v No. 345036
Court of Claims
STATE OF MICHIGAN, LC No. 10-000091-MM
Defendant-Appellant/Cross-
Appellee.
DEBORAH MCMILLAN, THOMAS BRENNER,
THERESA DUDLEY, KATHERINE DANIELS,
and COREY CRAMB,
Plaintiffs-Appellees/Cross-
Appellants,
v No. 345418
Court of Claims
PUBLIC SCHOOL EMPLOYEES RETIREMENT LC No. 10-000045-MM
SYSTEM, PUBLIC SCHOOL EMPLOYEES
-3-
RETIREMENT SYSTEM BOARD, TRUST FOR
PUBLIC EMPLOYEE RETIREMENT HEALTH
CARE, and DEPARTMENT OF TECHNOLOGY,
MANAGEMENT, AND BUDGET,
Defendants-Appellants/Cross-
Appellees,
and
DIRECTOR OF THE DEPARTMENT OF
TECHNOLOGY, MANAGEMENT, AND
BUDGET,
Defendant.
TIMOTHY L. JOHNSON, JANET HESLET,
RICKY MACK, and DENISE ZIEJA,
Plaintiffs-Appellees/Cross-
Appellants,
v No. 345420
Court of Claims
PUBLIC SCHOOL EMPLOYEES RETIREMENT LC No. 10-000047-MM
SYSTEM, PUBLIC SCHOOL EMPLOYEES
RETIREMENT SYSTEM BOARD, TRUST FOR
PUBLIC EMPLOYEE RETIREMENT HEALTH
CARE, and DEPARTMENT OF TECHNOLOGY,
MANAGEMENT, AND BUDGET,
Defendants-Appellants/Cross-
Appellees,
and
DIRECTOR OF THE DEPARTMENT OF
TECHNOLOGY, MANAGEMENT, AND
BUDGET, DIRECTOR OF THE OFFICE OF
RETIREMENT SERVICES, and STATE
TREASURER,
Defendants.
-4-
Before: JANSEN, P.J., and K.F. KELLY and CAMERON, JJ.
CAMERON, J.
In these three cases consolidated for appeal, defendants-appellants (“defendants”) appeal
and plaintiffs-appellees (“plaintiffs”) cross-appeal a July 24, 2018 order of the Court of Claims,
which ordered defendants to pay equitable judgment interest on funds collected under MCL
38.1343e, as amended by 2010 PA 75 (“former MCL 38.1343e”). The July 24, 2018 order also
denied plaintiffs’ request for statutory interest under MCL 600.6455. We affirm in part and reverse
in part.
I. BACKGROUND
On May 19, 2010, the Legislature enacted 2010 PA 75, which revised the Public School
Employees Retirement Act, MCL 38.1301 et seq. In relevant part, Section 43e of 2010 PA 75
required public school employees to contribute three percent of their salaries to the Michigan
Public School Employees’ Retirement System (“MPSERS”). The funds were to be placed in an
irrevocable trust that funded retiree health care benefits.
Plaintiffs brought suits, contesting the constitutionality of 2010 PA 75 on various grounds.
In July 2010, the trial court ordered that “[t]he 3% levy from the wages of all members of the
[MPSERS] pursuant to 2010 Act 75 shall not be placed in the irrevocable trust . . . .” The trial
court instead ordered that the money would be “placed in a separate interest bearing account” and
that the money could “not be spent or otherwise disbursed” until further order of the court.
Additionally, in September 2010, the trial court entered a stipulated order, which provided as
follows:
Defendants agree that if the final Court to rule in this case finds MCL
38.1343e to be unconstitutional, otherwise illegal, or unenforceable as a result of a
breach of contract, Defendant [MPSERS] . . . will repay to each member of
MPSERS who contributed under MCL 38.1343e the amount of their individual
contribution, plus any interest earned thereon in the separate interest-bearing
account.
The trial court ultimately concluded that former MCL 38.1343e was unconstitutional, and
appeals followed. On appeal, this Court held that former MCL 38.1343e was unconstitutional
under multiple provisions of the Michigan and United States Constitutions. AFT Mich v Michigan,
297 Mich App 597; 825 NW2d 595 (2012) (AFT Mich I), vacated by 498 Mich 851 (2015). In
response to this Court’s decision, the Legislature enacted 2012 PA 300, which altered
MCL 38.1343e’s scope and effect but did not repeal it. All of the plaintiffs challenged 2012 PA
300, and the trial court dismissed their claims. This Court affirmed the trial court’s decision in
AFT Mich v Michigan, 303 Mich App 651; 846 NW2d 583 (2014) (AFT Mich II), and the Michigan
Supreme Court affirmed this Court’s decision regarding 2012 PA 300, AFT Mich v Michigan, 497
Mich 197; 866 NW2d 782 (2015) (AFT Mich III). However, our Supreme Court vacated this
Court’s decision in AFT Mich I and remanded with instructions for this Court to reconsider its
decision in light of the enactment of 2012 PA 300 and in light of the Supreme Court’s “decision
upholding that Act[.]” AFT Mich v Michigan, 498 Mich 851, 851; 864 NW2d 555 (2015).
-5-
On remand, this Court concluded that neither the passage of 2012 PA 300 nor the Michigan
Supreme Court’s decision to uphold 2012 PA 300 affected the validity of 2010 PA 75. AFT Mich
v Michigan (On Remand), 315 Mich App 602; 893 NW2d 90 (2016) (AFT Mich IV), vacated in
part by 501 Mich 939 (2017). This Court concluded that 2010 PA 75 and its compulsory
contribution provision remained unconstitutional for several reasons. Id. at 611-612. In relevant
part, in Section II of the opinion, this Court held that “2010 PA 75 , from its effective date until
the completed transition to a voluntary system, violated” the Contracts Clauses of the United States
and Michigan Constitutions. Id. at 621. This Court remanded the case to the trial court “with the
direction to return the subject funds, with interest, to the relevant employees.” Id. at 612.
Our Supreme Court affirmed this Court’s “holding that 2010 Public Act 75 violated the
respective Contract Clauses of both the federal and state constitutions . . . .” AFT Mich v Michigan,
501 Mich 939, 939; 904 NW2d 417 (2017) (AFT Mich V). Our Supreme Court additionally held
that, “[b]ecause 2010 Public Act 75 is unconstitutional, the funds collected pursuant to that act
before the effective date of 2012 Public Act 300 must be refunded to the plaintiffs in accordance
with the Court of Appeals judgment.” Id.
On January 22, 2018, the trial court entered an order, noting that it had been directed to
order the “return of the subject funds, with interest, to the relevant employees.” The trial court
ordered defendants to disburse the funds “together with the interest earned on the amounts in the
interest-bearing account.” Defendants complied with the trial court’s order.
In February 2018, plaintiffs filed a joint motion seeking the payment of interest under
MCL 600.6455. Plaintiffs argued that they had obtained a money judgment and that this Court
had ordered the trial court to return the funds “with interest.” Plaintiffs argued that, because the
interest on the money held in escrow was “less than one percent of the principal in total,” they
would not be made whole if the trial court did not order defendants to pay statutory interest. In
the alternative, plaintiffs moved the trial court to award interest as a matter of equity. Plaintiffs
argued that, absent defendants’ unconstitutional actions, plaintiffs would have received full
payment for their earned compensation. Plaintiffs argued that they should be compensated “in
today’s dollars for the compensation which they should have been receiving between 2010 and
2012.” Defendants opposed the motion, arguing that plaintiffs had waived any additional interest
award under contract principles and that defendants were not required to pay interest under
MCL 600.6455 because the case resulted in a declaratory judgment, not a money judgment.
Defendants also argued that governmental immunity barred payment of equitable interest and that,
based on the circumstances, plaintiffs were not entitled to an award of equitable interest.
The trial court rejected defendants’ argument that plaintiffs had waived entitlement to
interest. The trial court then concluded that an order to return the involuntarily withheld funds was
not a “money judgment” within the meaning of MCL 600.6422(2) because the order merely
restored property to plaintiffs, and because the order was for equitable relief resulting from a
declaratory judgment. The trial court also disagreed that governmental immunity or sovereign
immunity barred an interest award outside of interest on a money judgment under MCL 600.6455.
The trial court reasoned that governmental immunity was not available in the underlying action
because it was not a tort action. Additionally, the trial court noted that common law sovereign
immunity had been replaced by governmental immunity under the governmental tort liability act
-6-
(“GTLA”), MCL 691.1401 et seq., and that an award of equitable interest was not a tort subject to
the GTLA.
Finally, the trial court held that an award of equitable interest was warranted. The court
noted that in equitable actions, it had discretion to award judgment interest even if interest was not
mandated by statute. When considering the totality of the circumstances, the trial court declined
to “punish” plaintiffs for prudently obtaining injunctive relief. The trial court found that
defendants “played no small role in the protracted nature of the appellate process . . . .” While the
fact that AFT Mich I was pending on application for nearly two years contributed to the delay, the
trial court noted that defendants had sought leave to appeal after the Attorney General decided to
no longer pursue the matter. The trial court also considered that plaintiffs were deprived of use of
their taken wages for nearly seven years. The trial court determined that the proper rate of interest
was the same rate that MCL 600.6455(2) provided for interest on a money judgment, less the
amount of interest the escrow account had actually earned. These appeals followed.
II. ANALYSIS
A. LAW-OF-THE-CASE DOCTRINE
Defendants first argue that plaintiffs’ claims should be dismissed because plaintiffs failed
to comply with the requirements of MCL 600.6431. Although defendants are correct that “a claim
cannot proceed against the state” unless a claimant complies with the mandates outlined in MCL
600.6431, Fairley v Dep’t of Corrections, 497 Mich 290, 293; 871 NW2d 129 (2015), we conclude
that the law-of-the-case doctrine precludes consideration of this issue.
The law-of-the-case doctrine provides that once “an appellate court has passed on a legal
question and remanded the case for further proceedings, the legal questions . . . determined by the
appellate court will not be differently determined on a subsequent appeal in the same case where
the facts remain materially the same.” See Grievance Administrator v Lopatin, 462 Mich 235,
259; 612 NW2d 120 (2000) (quotation marks and citation omitted). “[A]s a general rule, an
appellate court’s determination of an issue in a case binds lower tribunals on remand and the
appellate court in subsequent appeals.” Id. at 260.
The purpose of the doctrine is to promote consistency and to “avoid reconsideration of
matters once decided during the course of a single lawsuit.” See Schumacher v Dep’t of Natural
Resources, 275 Mich App 121, 128; 737 NW2d 782 (2007). The doctrine promotes finality and
prevents forum shopping as well. See Int’l Union, UAW v Dep’t of Mental Health, 211 Mich App
20, 24; 535 NW2d 210 (1995). The doctrine is also founded on an appellate court’s lack of
jurisdiction to modify its own judgments except on rehearing. See Johnson v White, 430 Mich 47,
53; 420 NW2d 87 (1988). The law-of-the-case doctrine is, in a sense, the “analytical cousin of the
doctrines of claim and issue preclusion.” Locricchio v The Evening News Ass’n, 438 Mich 84,
109; 476 NW2d 112 (1991). However, the law-of-the case doctrine applies “only to issues actually
decided, either implicitly or explicitly, in the prior appeal.” Lopatin, 462 Mich at 260. An issue
is decided if this court expresses an opinion on the merits. See id. (ruling that the doctrine did not
apply because the court had not addressed the issue on the merits).
-7-
In this case, both this Court and the Michigan Supreme Court have expressed opinions on
the merits of plaintiffs’ claims. Specifically, this Court previously held that former MCL 38.1343e
violated the Contracts Clauses of the United States and Michigan Constitutions. AFT Mich IV,
315 Mich App at 621. As a result of this holding, this Court ordered return of plaintiffs’ funds.
Id. at 628. The Michigan Supreme Court also ruled that former MCL 38.1343e violated the
Contracts Clauses and ordered return of the funds. AFT Mich V, 501 Mich at 939. By ruling that
plaintiffs were entitled to their wrongly taken wages, both this Court and the Michigan Supreme
Court implicitly decided that plaintiffs had a cause of action. Furthermore, when a higher court
has remanded a case, it is the duty of the lower court to comply with the remand order. Rodriguez
v Gen Motors Corp, 204 Mich App 509, 514; 516 NW2d 105 (1994). The trial court was ordered
to distribute the funds, AFT Mich IV, 315 Mich App at 628; AFT Mich V, 501 Mich at 939, and it
was required to do so. Therefore, we decline to decide whether plaintiffs’ claims were barred by
virtue of their alleged failure to verify their respective complaints.
B. STATUTORY INTEREST
Plaintiffs argue that the trial court erred by ruling that the January 2018 order was not a
money judgment. We disagree.
This Court reviews de novo whether a statute applies in a given case. In re Forfeiture of
$176,598, 465 Mich 382, 385; 633 NW2d 367 (2001). Generally, “[e]ntitlement to interest on a
judgment is purely statutory and must be specifically authorized by statute.” Dep’t of Transp v
Schultz, 201 Mich App 605, 610; 506 NW2d 904 (1993). “[A]n award of interest is mandatory in
all cases to which [a] statute applies.” Everett v Nickola, 234 Mich App 632, 639; 599 NW2d 732
(1999).
Plaintiffs argue that interest must be awarded on the wrongfully withheld funds under
MCL 600.6455(2) of the Court of Claims Act, which provides as follows:
Except as otherwise provided in this subsection, for complaints filed on or
after January 1, 1987, interest on a money judgment recovered in a civil action shall
be calculated from the date of filing the complaint at a rate of interest which is equal
to 1% plus the average interest rate paid at auctions of 5-year United States treasury
notes during the 6 months immediately preceding July 1 and January 1, as certified
by the state treasurer, and compounded annually, pursuant to this section.
[Emphasis added.]
As noted by the trial court and acknowledged by the parties, the key phrase in
MCL 600.6455(2) is “on a money judgment.” Plaintiffs argue that because the crux of this case
involved the payment of money, it necessary involved a “money judgment.” We disagree.
The phrase “money judgment” is not defined in the Court of Claims Act, and the case law
interpreting MCL 600.5455(2) is limited. However, like MCL 600.5455(2), MCL 600.6013(1)
“applies to money judgments recovered in a civil action.” Olson v Olson, 273 Mich App 347, 350;
729 NW2d 908 (2006). The meaning of “money judgment” within MCL 600.6013(1) has been
interpreted by Michigan Courts. When engaging in statutory interpretation, “the statute must be
read as a whole,” and this Court should read phrases “in the context of the entire legislative
-8-
scheme.” Mich Props, LLC v Meridian Twp, 491 Mich 518, 528; 817 NW2d 548 (2012). This
Court also reads subsections of cohesive statutory provisions together. Robinson v Lansing, 486
Mich 1, 15; 782 NW2d 171 (2010). Because both MCL 600.6013 and MCL 600.6455 are part of
the Revised Judicature Act, MCL 600.101 et seq., and because both provisions refer to money
judgments in civil actions, we will construe the meaning of money judgment in a civil action the
same in MCL 600.6455(2) as in MCL 600.6013(1).
Case law interpreting the phrase “money judgment” within MCL 600.6013(1) makes it
clear that a judgment is not a money judgment simply because money is granted as part of that
judgment. Under MCL 600.6013(1), a money judgment in a civil action is a judgment “that orders
the payment of a sum of money, as distinguished from an order directing an act to be done or
property to be restored or transferred.” In re Forfeiture, 465 Mich at 386.
In In re Forfeiture, the police seized $176,598 from the claimant’s home and from another
residence based on the suspicion that the money was related to drug trafficking. Id. at 383-384.
The claimant ultimately prevailed in a forfeiture action that was brought by the prosecutor. Id. at
384. Thereafter, the claimant brought a motion in the trial court, requesting return of the money
and statutory judgment interest under MCL 600.6013. Id. The trial court ordered the prosecutor
to return the money to the claimant, but the trial court denied the request for statutory interest. Id.
at 385. This Court reversed on appeal. Id. In doing so, this Court held “that the decree directing
return of the funds was a money judgment in a civil action,” which entitled the claimant to interest
under MCL 600.6013(1). Id.
In affirming the trial court’s denial of statutory interest under MCL 600.6013, our Supreme
Court concluded that the order directing the return of the seized funds to the claimant was not a
money judgment in a civil action. Id. at 389. Our Supreme Court observed that “[t]he trial court’s
order was not an adjudication of an action for money damages, but rather one for the delivery of
property that had been the subject of a forfeiture action.” Id. at 388. The Court reasoned that
money is “property” subject to forfeiture, and that the trial court simply ordered the return of
specific personal property. Id. at 386-387. It noted that wrongfully seized currency is generally
treated like any other wrongfully seized property. Id. at 386 n 10. Specifically, our Supreme Court
reasoned that “[t]he return of seized property is treated as an act of restoration, rather than as an
award of monetary compensation for damages suffered by a party.” Id.
We conclude that the January 2018 order at issue in this case ordered the return of specific
personal property, not an award of monetary compensation for damages. As already discussed,
defendants took money from plaintiffs’ paychecks, and that specific money was ordered to be
placed into an account. This Court ordered that the money be “return[ed] . . . to the relevant
employees,” AFT Mich IV, 315 Mich App at 612, and our Supreme Court ordered that the funds
collected “must be refunded to the plaintiffs,” AFT Mich V, 501 Mich at 939. Consistent with
these holdings, the trial court ordered as follows:
The funds currently held in the separate interest-bearing accounts will be
dispersed by Defendants on January 22, 2018 to the reporting units, or Local
Education Agencies (LEAs), from which the funds were received, together with the
interest earned on the amounts in the interest-bearing account.
-9-
Accordingly, the January 2018 order did not order the payment of a sum of money. Rather,
the order directed an act to be done, i.e., that plaintiffs’ property be transferred “to the reporting
units” or LEAs “from which the funds were received[.]” Thus, like in In re Forfeiture, the order
represented the return of specific property that defendants wrongfully took from plaintiffs.
Because a money judgment was not entered, the trial court properly declined to award statutory
interest to plaintiffs under MCL 600.5455(2).
C. EQUITABLE INTEREST
Defendants argue that the trial court erred by awarding plaintiffs equitable interest.
Specifically, defendants argue that plaintiffs’ request for compensation for their loss of use of the
money taken by defendants was a claim for common law damages to which defendants have not
waived immunity.1 We agree.
From the time of Michigan’s statehood, our Supreme Court’s jurisprudence has recognized
that the state, as sovereign, is immune from suit unless it consents to the lawsuit. Manion v State
Hwy Comm’r, 303 Mich 1, 19; 5 NW2d 527 (1942). See also Odom v Wayne Co, 482 Mich 459,
477; 760 NW2d 217 (2008). Thus, “a governmental agency is immune unless the Legislature has
pulled back the veil of immunity and allowed suit by citizens against the government.” Mack v
City of Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002). Tort immunity is granted to
governmental agencies in MCL 691.1407(1), which provides: “Except as otherwise provided in
this act, a governmental agency is immune from tort liability if the governmental agency is engaged
in the exercise or discharge of a governmental function.” Thus, “[i]mmunity from tort liability, as
provided by MCL 691.1407, is expressed in the broadest possible language—it extends immunity
to all governmental agencies for all tort liability whenever they are engaged in the exercise or
discharge of a governmental function.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 156;
615 NW2d 702 (2000). However, the GTLA also provides several exceptions to this broad grant
of immunity, Wesche v Mecosta Co Rd Comm, 480 Mich 75, 84; 746 NW2d 847 (2008), none of
which pertain to a claim for damages arising from the violation of a constitutional right.
“The Legislature has never created an exception to immunity for a constitutional tort.”
Mays v Governor, ___Mich ___, ___; ___ NW2d ___ (2020) (Docket No. 157335); slip op at 23.
Nonetheless, in Smith v Dep’t of Public Health, 428 Mich 540, 544; 410 NW2d 749 (1987), our
Supreme 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.” However, as recently
recognized by our Supreme Court in Mays, ___ Mich at ___, slip op at 31:
This Court has never explicitly endorsed a test for assessing a damages
inquiry for a constitutional violation. However, we agree with the Court of Claims
1
We note that defendants argue that “sovereign immunity” bars plaintiffs’ claims. However,
Michigan has abrogated common law sovereign immunity. Pittman v City of Taylor, 398 Mich
41, 49; 247 NW2d 512 (1976). Furthermore, our Supreme Court has explained that while the
terms “sovereign immunity” and “governmental immunity” have been used interchangeably over
the years, the terms are not synonymous. Pohutski v City of Allen Park, 465 Mich 675, 682; 641
NW2d 219 (2002).
-10-
and the Court of Appeals that the multifactor test elaborated in Justice BOYLE’S
separate opinion in Smith provides a framework for assessing the damages inquiry.
Under that test, we weigh various factors, including (1) the existence and clarity of
the constitutional violation itself; (2) the degree of specificity of the constitutional
protection; (3) support for the propriety of a judicially inferred damages remedy in
any text, history, and previous interpretations of the specific provision; (4) the
availability of another remedy; and (5) various other facts militating for or against
a judicially inferred damages remedy. See Smith, 428 Mich at 648-652 (BOYLE, J.,
concurring in part and dissenting in part).
As to the first factor, as already discussed in detail, this Court and our Supreme Court have
determined that plaintiffs have established a clear violation of the Contracts Clauses of the United
States and Michigan Constitutions. See AFT Mich IV, 315 Mich App at 621; AFT Mich V, 501
Mich at 939. Thus, this factor weighs in favor of a judicially inferred damages remedy.
With respect to the second and third factors, US Const, art I, § 10 and Const 1963, art 1,
§ 10 both prohibit the enactment of a statute that impairs a contract, and the two provisions are
interpreted similarly. In re Certified Question, 447 Mich 765, 776-777; 527 NW2d 468 (1994).
However, “[n]ot every constitutional violation merits damages.” Mays, ___ Mich at ___, slip op
at 31. Importantly, the federal Contracts Clause has not historically provided a damages remedy.
See Carter v Greenhow, 114 US 317, 322; 5 S Ct 928, 29 L Ed 202 (1885). Rather, the United
States Supreme Court has held that a plaintiff who asserts that a state law violated the Contracts
Clause has only “a right to have a judicial determination declaring the nullity of the attempt to
impair its obligation. This is the only right secured to him by that clause of the constitution.” Id.
Thus, the remedy available for a Contracts Clause violation is generally declaratory or injunctive
relief. See id. We therefore conclude that the second and third factors weigh against recognition
of a damages remedy.
With respect to the fourth factor, “[t]he existence of alternative remedies is given
considerable weight, but it is not dispositive.” Mays, ___ Mich at ___, slip op at 33 (citation
omitted). Importantly, in this case, plaintiffs clearly enjoyed an alternative remedy in that they
were able to bring equitable claims. Not only were plaintiffs able to bring equitable claims, they
also recovered on these claims. As already discussed in depth, plaintiffs’ remedy in this case
specifically included the distribution of the balance of an escrow account. See AFT Mich IV, 315
Mich App at 628; AFT Mich V, 501 Mich at 939. Thus, this factor weighs against recognition of
a damages remedy. Finally, as to the fifth factor, which requires us to assess all other relevant
considerations, we can discern no other relevant circumstances that would support a conclusion
that damages should be inferred for a Contracts Clause violation. Indeed, as already stated, the
federal Contracts Clause has not historically provided a damages remedy and equitable relief was
available to plaintiffs. On the basis of these factors, we conclude that it is unwarranted to conclude
that damages should be inferred for a Contracts Clause violation.
-11-
Because money damages are not available to plaintiffs for the constitutional tort, we must
next consider whether the equitable interest awarded in this case amounted to an award of damages.
We find it helpful to first consider the meaning of the word “interest.” Various definitions of the
term “interest” make reference to its relationship to the use of money. The United States Supreme
Court stated in Deputy v Du Pont, 308 US 488, 497-498; 60 S Ct 363; 84 L Ed 2d 416 (1940), that
the “usual import of the term” “interest” “is the amount which one has contracted to pay for the
use of borrowed money,” and added that “interest on indebtedness means compensation for the
use or forbearance of money” (quotations and citation omitted). “Interest” has also been defined
as “the compensation allowed by law, or fixed by the parties, for the use or forbearance of money,
or as damages for its detention.” Marion v City of Detroit, 284 Mich 476, 484; 280 NW 26 (1938)
(quotations and citation omitted). Additionally, in Balch v Detroit Trust Co, 312 Mich 146, 152;
20 NW2d 138 (1945), our Supreme Court stated that “interest” “is paid for the use of money . . . or
given for the delay in the payment of money” (quotation marks and citations omitted).
A reference to dictionary definitions supports the same basic definitions. Merriam-
Webster’s Collegiate Dictionary (11th ed) defines “interest” as “a charge for borrowed money
generally a percentage of the amount borrowed.” Random House Webster’s College Dictionary
(1997) defines “interest” as “a sum paid or charged for the use of money or for borrowing money”
or “such a sum expressed as a percentage of the amount borrowed to be paid over a given period[.]”
Thus, interest is compensation for the use of another’s money.
Importantly,
Michigan has long recognized the common-law doctrine of awarding
interest as an element of damages. The doctrine recognizes that money has a “use
value” and interest is a legitimate element of damages used to compensate the
prevailing party for the lost use of its funds. Furthermore, the decision whether to
award interest as an element of damages is not dependent upon a contractual
promise to pay interest . . . . [T]he pivotal factor in awarding such interest is
whether it is necessary to allow full compensation. [Gordon Sel-Way, Inc v Spence
Bros, Inc, 438 Mich 488, 499; 475 NW2d 704 (1991) (citations omitted).]
Accordingly, in Michigan, the purpose of common law interest is to compensate plaintiffs
for loss of use of their funds and to “allow full compensation.” Id. Indeed, Courts have long
recognized equitable prejudgment interest as “an element of [a litigant’s] complete compensation.”
Osterneck v Ernst & Whinney, 489 US 169, 175; 109 S Ct 987; 103 L Ed 2d 146 (1989) (quotation
marks and citation omitted; alteration added). “Prejudgment interest is normally designed to make
the plaintiff whole and is part of the actual damages sought to be recovered.” Monessen
Southwestern R Co v Morgan, 486 US 330, 335; 108 S Ct 1837; 100 L Ed 2d 349 (1988). See also
Library of Congress v Shaw, 478 US 310, 321; 106 S Ct 2957; 92 L Ed 2d 250 (1986) (adopting
the view that “[p]rejudgment interest . . . is considered as damages, not a component of ‘costs’ ”)
(citation omitted); General Motors Corp v Devex Corp, 461 US 648, 655-656 n 10; 103 S Ct 2058
2058; 76 L Ed 2d 211 (1983) (“prejudgment interest represents ‘delay damages’ and should be
awarded as a component of full compensation”); Miller v Robertson, 266 US 243, 258; 45 S Ct
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73; 69 L Ed 265 (1924) (“in order to arrive at fair compensation, the court in the exercise of a
sound discretion may include interest or its equivalent as an element of damages”).
In this case, plaintiffs sought interest in order to be fully compensated for their losses, i.e.,
the deprivation of the benefit of possessing and using the funds during the years prior to judgment.
Plaintiffs claimed that, because the interest on the money held in escrow was “less than one percent
of the principal in total,” they would not be made whole if the trial court did not order defendants
to pay interest. When determining that it was proper to award equitable interest, the trial court
noted that plaintiffs “were deprived of the use of the funds.” The trial court also noted that
defendants’ taking of a portion of plaintiffs’ wages hindered “plaintiffs’ respective abilities to
provide for and ‘meet the daily necessities of life.’ ” Based in part on these facts, the trial court
found that it was proper to award interest and applied MCL 600.6455(2) in order to calculate the
amount of interest owed to plaintiffs. Thus, the interest awarded in this case was a compensatory
damage in that it compensated plaintiffs for the delay and expense that resulted from the loss of
use of their property. Consequently, the trial court erred by awarding equitable interest.
Finally, plaintiffs in Docket No. 345418 argue that they are entitled to interest beyond that
of the interest earned in the interest-bearing account because this Court and the Michigan Supreme
Court specifically ordered that the funds be returned “with interest.” We disagree.
Courts should interpret the terms in a judgment in the same manner as courts interpret
contracts. Smith v Smith, 278 Mich App 198, 200; 748 NW2d 258 (2008). We construe contractual
terms in context, Henderson v State Farm Fire & Cas Co, 460 Mich 348, 356-357; 596 NW2d 190
(1999), and this Court generally construes together agreements that are related to the same subject
matter, Culver v Castro, 126 Mich App 824, 826; 338 NW2d 232 (1983). Courts should not read
language into contracts, In re Smith Trust, 274 Mich App 283, 288-289; 731 NW2d 810 (2007),
or rewrite clear contractual language, DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 372;
817 NW2d 504 (2012).
In this case, the trial court ordered that the money was to be “placed in a separate interest
bearing account,” and not spent or disbursed until further order of the court. Additionally, the
September 2010 stipulated order provided that if it was determined that former MCL 38.1343e
was unconstitutional or unenforceable, defendants would “repay to each member of MPSERS who
contributed under MCL 38.1343e the amount of their individual contribution, plus any interest
earned thereon in the separate interest-bearing account.” In AFT Mich IV, 315 Mich App at 628,
this Court ordered that the trial court “shall direct the return of the subject funds, with interest, to
the relevant employees.” The Michigan Supreme Court ordered that the funds be refunded to
plaintiffs in accordance with this Court’s judgment. AFT Mich V, 501 Mich at 939. Construing
the judgments together, like this Court would construe contracts together, we conclude that this
Court’s reference to interest means the interest from the interest-bearing account, not some other
form of interest. Indeed, had this Court wished to order the payment of judgment interest, it would
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have done so. Consequently, we decline to read the word “judgment” before the word “interest”
in this Court’s previous order.2
We affirm in part and reverse in part. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
2
Based on this holding, the remainder of the parties’ arguments on appeal are rendered moot and
need not be considered. See Attorney Gen v Pub Serv Comm, 269 Mich App 473, 485; 713 NW2d
290 (2005).
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