Lewis v. State

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Just ice Justices
Maura D . Corrigan Michael F. Cavanagh

O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 17, 2001

BARRY A. LEWIS,

Plaintiff-Appellant,

v No. 114241

STATE OF MICHIGAN,

Defendant-Appellee.

______________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

This case presents the question whether a judicially

inferred private cause of action should be recognized against

the state for violation of Const 1963, art 1, § 2, the Equal

Protection Clause of the Michigan Constitution. We conclude

that we should not recognize such a cause of action because

the plain language of this constitutional provision leaves its

implementation to the Legislature. Thus, we affirm the

judgment of the Court of Appeals, although we clarify the

appropriate rationale for resolving this case.

I. Underlying Facts and Procedural History

Plaintiff, a white male, became a trooper with the

Michigan State Police in 1973. The State Police did not

promote plaintiff to the position of sergeant.

Plaintiff alleges that the State Police discriminated

against him on the basis of race and sex in violation of the

Michigan Constitution, Const 1963, art 1, § 2, by using

affirmative action policies in connection with promotional

decisions. Specifically, plaintiff attacks the “augmentation”

policy used by the State Police until June 27, 1994. Under

the augmentation policy, the State Police would, in certain

circumstances, give preferential treatment to minority and

female candidates in connection with eligibility for

promotions.1 In addition, plaintiff alleged that the State

1
In short, the parties agree that individual troopers

were placed into three “bands” on the basis of the promotional

examination with those with the highest scores referred to as

being in the first band. Generally, only troopers in the

first band were considered for promotion to sergeant.

However, if there was an “insufficient” number of women and

minorities in the first band, then women and minorities from

the second band (the middle range) of test scores would be

added to the list of troopers to be considered for promotion.

White males, such as plaintiff, who scored in the second band

would not be added to the list of those to be considered for

promotions.

2
Police gave favorable consideration to female and minority

status in selecting individuals for promotion to sergeant even

apart from the augmentation policy. Indeed, Michigan State

Police Colonel Michael Robinson acknowledged in deposition

testimony that race and gender were considered with a

“multitude of [other] factors” in filling vacant positions.

The affirmative action plans of the State Police were approved

by the Michigan Civil Rights Commission.

In pertinent part, plaintiff brought this case to seek

money damages from the state for violation of his right under

the Michigan Constitution to be free of race and sex

discrimination by the state. The trial court eventually ruled

in favor of plaintiff on his claim for money damages for

violation of the Michigan Constitution, awarding damages of

over $300,000. The Court of Appeals peremptorily reversed the

trial court on the basis of its earlier decision in Cremonte

v Michigan State Police, 232 Mich App 240; 591 NW2d 261

(1999). Like the present case, Cremonte involved a claim for

money damages against the state for discrimination in

violation of Const 1963, art 1, § 2 because of affirmative

action policies followed by the State Police. The Court of

Appeals in Cremonte held that that case was not an appropriate

one in which to infer such a damage remedy. Cremonte, supra

at 252.

3

 II. Analysis

A. Cremonte

The Court of Appeals panel in this case simply relied on

Cremonte in reversing the award of money damages in favor of

plaintiff. Cremonte involved facts that are virtually

identical to those of the present case. The plaintiff was

also a white male trooper who had not been promoted by the

State Police for a number of years. Id. at 242. In pertinent

part, the plaintiff argued that affirmative action policies

used by the State Police constituted race and sex

discrimination in violation of Const 1963, art 1, § 2.

Cremonte, supra at 243. Although the lower court in Cremonte

held in favor of the plaintiff and awarded money damages, the

Court of Appeals reversed and held that the facts of Cremonte

did not support imposition of a judicially inferred damage

remedy for violation of Const 1963, art 1, § 2:

The last line of [Const 1963, art 1, § 2]

certainly weighs against an inferred damage remedy.

Indeed, that sentence alone could be viewed as

dispositive of this issue. See Smith [v Dep’t of

Public Health, 428 Mich 540, 632; 410 NW2d 749

(1987) (Brickley, J.).] In addition, the

availability of a remedy under the Civil Rights Act

obviates any need for an inferred damage remedy in

age, race, or gender discrimination cases, or in

retaliation cases. Here, plaintiff could, and did,

file a Civil Rights Act action against defendant.

Thus, we have no trouble concluding that this was

not an appropriate case in which to infer a damage

remedy. [Cremonte, supra at 252.]

4

 As we will discuss below, we agree that the language of

the last sentence of Const 1963, art 1, § 2 weighs against

recognition of a judicially adopted damages remedy for

violation of that constitutional provision. Accordingly, we

conclude today that this portion of Const 1963, art 1, § 2,

commonly referred to as the state Equal Protection Clause,

precludes us from adopting such a judicially crafted remedy.

Thus, we agree with the result in Cremonte.

However, we disagree with the reliance by the Court of

Appeals in Cremonte on the potential availability of a remedy

under the state Civil Rights Act, MCL 37.2101 et seq. As an

initial matter, we note that there is no such remedy, because

the “safe harbor” provision of the Civil Rights Act, MCL

37.2210,2 gives immunity from liability under the Civil Rights

Act to an entity carrying out such an affirmative action plan

if it has been approved by the Civil Rights Commission. See

Sharp v City of Lansing, 464 Mich ___; ___ NW2d ___ (2001).

The affirmative action plan challenged by plaintiff here was

undertaken pursuant to such an approval, and, as a result,

2

A person subject to this article may adopt and

carry out a plan to eliminate present effects of

past discriminatory practices or assure equal

opportunity with respect to religion, race, color,

national origin, or sex if the plan is filed with

the commission under rules of the commission and

the commission approves the plan.

5
there could never be a remedy under the state Civil Rights

Act. Thus, this unattainable remedy should not be a part of

the justification for precluding a plaintiff from an inferred

damages remedy under Const 1963, art 1, § 2. More

importantly, as will be explained below, the existence or lack

of an available remedy is irrelevant in this context, because

the constitutional provision at issue expressly assigns the

responsibility of implementation to the Legislature.

B. Dedication of Implementation of Const 1963, art 1, § 2

to Legislature

In Smith v Dep’t of Public Health, supra, this Court

considered arguments that it should judicially recognize

causes of action against the state for violation of the

Michigan Constitution. Smith involved two consolidated cases

with differing allegations of state constitutional violations.

The only majority opinion in Smith was a brief memorandum

opinion summarizing the holdings on which at least four

justices agreed. In pertinent part, Smith 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.” Id. at 544. This brief majority opinion

did not define what constitutes an “appropriate” case for

recognizing such a cause of action for violation of the

6

Michigan Constitution. Regardless of whether an “appropriate”

case may be conceived, we conclude that it is inappropriate to

infer a damages remedy for violation of Const 1963, art 1,

§ 2.

The reason it is inappropriate to infer such a damages

remedy, simply stated, is the language of Const 1963, art 1,

§ 2:

No 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. The legislature shall implement this

section by appropriate legislation. [Emphasis

added.]

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.

Moreover, our conclusion that the language of Const 1963,

art 1, § 2 does not allow us to judicially create a money

damages remedy for a violation of this constitutional

provision is consistent with the view expressed by Justice

Brickley, joined by Justice Riley, in Smith:

7

 [T]hose sections of the 1963 Constitution,

comparable to the provisions of the 1908

Constitution under which plaintiff sued, indicate

that we should defer to the Legislature the

question whether to create a damages remedy for

violations of a plaintiff’s rights to due process[3]

or equal protection. For example, the Equal

Protection Clause of the 1963 Constitution (art 1,

§ 2) leaves its implementation to the Legislature.

[Id. at 631-632).][4]

Furthermore, it is the pattern of the Michigan

Constitution with regard to the protection of civil rights to

provide the Legislature with authority to create remedial

measures. This can be seen in the provision of the Michigan

Constitution that creates the Civil Rights Commission (Const

1963, art 5, § 295) where the drafters, after creating the

3
We do not address whether a judicially inferred damages

remedy is ever appropriate under the Due Process Clause of the

Michigan Constitution, Const 1963, art 1, § 17, inasmuch as

the present case does not involve such a claim.

4
Similar reasoning is found in 77th Dist Judge v Michigan,

175 Mich App 681; 438 NW2d 333 (1989) (holding that it was

error to grant damages for equal protection violation

involving disparate pay for state district court judges). The

Court of Appeals panel in 77th Dist Judge observed:

[W]e note, as did [Justice Brickley] in Smith,

that provision in Const 1963, art 1, § 2 empowering

the Legislature to implement enforcement mechanisms

for equal protection. This reinforces judicial

reluctance on our part to sanction a damages

remedy. [Id. at 696.]

5
This constitutional provision states:

There is hereby established a civil rights

commission . . . . It shall be the duty of the

(continued...)

8
Civil Rights Commission, then indicated that its

investigations and efforts to secure equal protection of civil

rights “may be prescribed by law,” i.e., prescribed by the

Legislature. The instant civil rights provision also follows

that approach and, thus, reinforces our confidence that the

drafters consistently intended that these rights, which were

coming to flower in the early 1960's, were to be implemented

after legislative consideration of the most appropriate

remedies.

Finally, our holding should not be construed as a

demurral to the traditional judicial power to invalidate

legislation or other positive governmental action that

directly violates the equal protection guarantee of Const

1963, art 1, § 2.6 There is obviously a distinction between

5
(...continued)

commission in a manner which may be prescribed by

law to investigate alleged discrimination against

any person because of religion, race, color or

national origin in the enjoyment of the civil

rights guaranteed by law and by this constitution,

and to secure the equal protection of such civil

rights without such discrimination. [Emphasis

added.]

6

We make this observation primarily to preclude any

misinterpretation of this opinion as calling into question the

ability of Michigan courts to review legislation for its

validity under the state Equal Protection Clause. This case

does not require us to actually decide whether injunctive

relief is available against other positive governmental action

that may violate this constitutional provision. Rather, that

question is addressed in this Court’s decision in Sharp,

(continued...)

9

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 . . . by ensuring

that judges do not encroach upon executive or legislative

authority or undertake tasks that are more properly

accomplished by those branches.” Morrison v Olson, 487 US

654, 680-681; 108 S Ct 2597; 101 L Ed 2d 569 (1988).

Accordingly, when the political branches of state government

affirmatively act by adopting legislation or otherwise, we

may, in keeping with the traditional judicial role, review

that action to determine if it is unconstitutional. Until

that time, however, we cannot go further.

Given the language of the Michigan Constitution, we hold

in this case that we are without proper authority to recognize

6
(...continued)

supra, which is being released today. For the reasons

discussed in Sharp, we disagree with Justice Kelly’s position

on that question and see no need to repeat the extended

analysis of that matter in this opinion.

10

a cause of action for money damages or other compensatory

relief for past violations of Const 1963, art 1, § 2.7

The judgment of the Court of Appeals is affirmed.8

CORRIGAN , C.J., and CAVANAGH , WEAVER , YOUNG , and MARKMAN , JJ.,

concurred with TAYLOR , J.

7
We note that plaintiff’s statement of the question

presented in this case refers to the possible availability of

a private cause of action under Const 1963, art 11, § 5.

However, plaintiff offers no argument about why such a cause

of action should be recognized. In any event, Const 1963, art

11, § 5 states that “[v]iolation of any of the provisions

hereof may be restrained or observance compelled by injunctive

or mandamus proceedings brought by any citizen of the state.”

This express reference to injunctive and mandamus remedies

implies that a money damages remedy is not directly available

for a violation of Const 1963, art 11, § 5.

8
As discussed earlier, the Court of Appeals reversed and

remanded for further proceedings consistent with Cremonte,

supra. While we disagree with part of the rationale in

Cremonte, we agree with its holding. Thus, we do not need to

modify the order entered by the Court of Appeals in the

present case.

11

 S T A T E O F M I C H I G A N

SUPREME COURT

BARRY A. LEWIS,

Plaintiff-Appellant,

v No. 114241

STATE OF MICHIGAN,

Defendant-Appellee.

___________________________________

KELLY, J. (concurring in part and dissenting in part).

I agree with today's holding that we should not recognize

a cause of action for money damages or other compensatory

relief for past violations of the Equal Protection Clause of

the Michigan Constitution.1 I also support much of the

supporting rationale.

However, I disagree with the apparent dictum suggesting

that a party can pursue equitable relief directly under the

constitution where it conflicts with the safe-harbor provision

1
Const 1963, art 1, § 2.

in the Michigan Civil Rights Act (CRA).2 To the extent that

the majority holding represents such a proposition, I dissent.

The majority remarks that its holding is not a "demurral

to the traditional judicial power to invalidate legislation or

other positive governmental action that directly violates the

equal protection guarantee of Const 1963, art 1, § 2." Ante

at 9. Of course, I do not take issue with the general

proposition that the constitution may offer certain equitable

relief when not preempted by a statutory remedial scheme. See

Sharp v City of Lansing, 464 Mich ___; ___ NW2d ___ (2001)

(KELLY, J., dissenting).

It concerns me, however, that the majority appears to

conclude that equitable relief remains available to remedy

harms covered by a comprehensive remedial scheme, such as

title VII and our own CRA.3 Moreover, the present case does

not require a response from the Court on this question.

Therefore, to the extent the majority casts its holding

to sanction claims for equitable relief under the constitution

in avoidance of a comprehensive legislative remedial scheme,

I dissent. I oppose circuitous measures for pleading around

2
MCL 37.2210.

3
See Great American Savings & Loan Ass'n v Novotny, 442

US 366; 99 S Ct 2345; 60 L Ed 2d 957 (1979), holding a

constitutional equal protection claim unavailable to the

plaintiff where the cause of action is contemplated under

title VII.

2

the detailed, clear requirements of the CRA, itself enacted in

furtherance of the will of Michigan citizens as evidenced in

art 1, § 2.

3