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