(concurring in part and dissenting in part). We concur with Justice Brickley’s conclusion that the state is not a "person” for purposes of 42 USC 1983, that a state officer sued in an official capacity is not a "person” for purposes of a damage suit under 42 USC 1983, that the allegation of a common-law intentional tort does not avoid statutory immunity per se, and that Mr. Will’s damage claim under the Michigan Constitution has been waived. However, we write sepa*638rately to state our view that an allegation of a state constitutional tort1 perpetrated by virtue of a state custom or policy avoids the strictures of statutory governmental immunity. We would remand Smith v Dep’t of Public Health to the Court of Claims for further proceedings.
i
Since this case involves appeals of rulings on summary judgment motions, the factual record is necessarily sparse. However, the basic contours of the factual background follow.
On February 12, 1925, Jack Smith was born in the Traverse City State Mental Hospital, to which his mother had been committed two days earlier. Mrs. Smith died a few hours after Jack Smith’s birth. In June, 1925, Jack was transferred to the state orphanage in Coldwater, the Coldwater State Public School. In September, 1926, when Jack was about nineteen months old, the superintendent of the orphanage decided that Jack was "feeble-minded” and sought Jack’s transfer to an institution for the retarded, the Michigan Home and Training School in Lapeer. This transfer was made in November, 1926, without a court order authorizing Jack’s commitment to the Lapeer institution. One of plaintiffs allegations is that Jack was in fact of normal intelligence at the time of this allegedly invalid commitment.
During the next eleven years, Jack Smith lived at the Michigan Home in Lapeer. In October of 1937, Jack Smith was formally committed to the Lapeer institution. He remained at the Michigan Home in Lapeer until 1964, when he was diagnosed as a paranoid schizophrenic and transferred *639to the Traverse City State Hospital, the place of his birth. He remained in the mental hospital for nine years, until his release in May, 1973. He lived in foster care homes from 1973 until his death in February, 1984, during the pendency of this litigation.
Count m of plaintiffs Court of Claims complaint alleges that Jack Smith was not retarded at birth, but that he became retarded as a result of his improper or illegal institutionalization as a young child. Plaintiffs amended complaint also alleges an equal protection violation under the 1908 Constitution.
The defendant moved for summary judgment on the basis that the state is immune from liability for plaintiffs injuries. The Court of Claims found governmental immunity inapplicable to the constitutional tort allegations of count in. We agree and would remand count iii to the Court of Claims for further proceedings.
ii
MCL 691.1407; MSA 3.996(107) provides:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
The plaintiff argues that this statute does not immunize the state from liability for its unconstitutional acts; the defendant counters that plaintiff has merely alleged torts, not constitutional viola*640tions, and that MCL 691.1407; MSA 3.996(107) clearly covers tortious behavior. Defendant fails to argue that, assuming a constitutional violation has been alleged, statutory immunity bars recovery.
Assuming the plaintiff proves an unconstitutional act by the state which is otherwise appropriate for a damage remedy, the question which confronts this Court is whether sovereign or governmental immunity shields the state from liability for damages for its alleged acts which violate our state constitution. We would hold that neither common-law sovereign immunity nor the governmental immunity found in MCL 691.1407; MSA 3.996(107) bars recovery.
In our constitutional form of government, the sovereign power is in the people, and "[a] Constitution is made for the people and by the people.” Michigan Farm Bureau v Secretary of State, 379 Mich 387, 391; 151 NW2d 797 (1967) (quoting Cooley, Constitutional Limitations [6th ed], p 81). The Michigan Constitution is a limitation on the plenary power of government, and its provisions are paramount. See, generally, Dearborn Twp v Dearborn Twp Clerk, 334 Mich 673, 688; 55 NW2d 201 (1952). It is so basic as to require no citation that the constitution is the fundamental law to which all other laws must conform. All state public officers, legislative, executive, and judicial, are required by Const 1963, art 11, § 1, to swear or affirm to support that same document.2_
*641In light of the preeminence of the constitution, statutes which conflict with it must fall. A basic rule of constitutional interpretation is that "wherever possible an interpretation that does not create constitutional invalidity is preferred to one that does.” Traverse City School Dist v Attorney General, 384 Mich 390, 406; 185 NW2d 9 (1971). Thus, interpretations which avoid confrontations between statutes and the constitution are generally favored.
MCL 691.1407; MSA 3.996(107) does not, by its terms, declare immunity for unconstitutional acts by the state. The idea that our Legislature would indirectly seek to "approve” acts by the state which violate the state constitution by cloaking such behavior with statutory immunity is too farfetched to infer from the language of MCL 691.1407; MSA 3.996(107). We would not ascribe such a result to our Legislature.
Neither does common-law sovereign immunity immunize the state from liability for its alleged unconstitutional acts. This Court abrogated common-law sovereign immunity in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976). Even absent such general abrogation, however, we would decline to apply sovereign immunity to violations by the state of our state constitution. The curious doctrine of sovereign immunity in America, subject to great criticism over the years, see, generally, Jafle, Suits against governments and officers: Sovereign immunity, 77 Harv L R 1 (1963), should, as a matter of public policy, lose its vitality when faced with unconstitutional acts of the state. The primacy of the state constitution would perforce eclipse the vitality of a claim of *642common-law sovereign immunity in a state court action for damages.
Tort claims against government can, however, be premised on two separate theories: direct liability from the agency’s own acts, or vicarious liability for the acts of its employees, officers, and agents. See Ross v Consumers Power (On Rehearing), 420 Mich 567, 621-625; 363 NW2d 641 (1984). In Ross, p 624, we noted that "[rjespondeat superior liability generally can be imposed only where the individual tortfeasor acted during the course of his or her employment and within the scope of his or her authority.”3 For "constitutional torts,” liability should only be imposed on the state in cases where a state "custom or policy” mandated the official or the employee’s actions. Ross held that the general effect of statutory immunity was to ban vicarious governmental liability for the acts of agents, officers, and employees. Those policy reasons which restrain us from reading MCL 691.1407; MSA 3.996(107) to immunize the state for its direct violations of the constitution do not also require imposing vicarious liability for acts of state officers, employees, or agents which violate the state constitution.
The state’s liability should be limited to those cases in which the state’s liability would, but for the Eleventh Amendment, render it liable under the 42 USC 1983 standard for local governments articulated in Monell v New York City Dep’t of Social Services, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978). Liability should be imposed on the *643state only where the action of a state agent "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers . . . [or] governmental 'custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Id., pp 690-691. Thus, statutory immunity would continue to bar suit for cases in which the only possible liability of the state is based upon respondeat superior. Cf. id., 691-694.
A limitation of the state’s liability to situations in which the injury occurs as the result of a custom or policy of the state is dictated by prudential concerns. First, the public policy concerns which militate a remedy are greatest when the state has such "primary governmental liability.” Compare Note, Rethinking sovereign immunity after Bivens, 57 NYU L R 597, 637 (1982) (advocating abolition of the sovereign immunity of the United States for constitutional torts). This standard avoids the spectre of multitudinous lawsuits against the state for the unauthorized tortious acts of employees. Such a cause of action also is "more manageable: causation is more easily proven and the locus of liability is more readily ascertained.” Id. It also serves the objective of deterring future similar unconstitutional acts while still providing compensation for the injured party. Id.
In a case involving an alleged unconstitutional act by the state government, neither sovereign nor statutory immunity should bar liability. The injury arises from violation of a constitutionally protected right by the government, a right engendered by "the basic law which created and seeks to control that government.” Dellinger, Of rights and remedies: The constitution as a sword, 85 Harv L R 1532, 1557 (1972). The primacy of the constitu*644tion must eclipse the power of immunity to countenance constitutional violations by the state without concomitant liability.
Therefore, we would remand this case to the Court of Claims4 for determination of whether an act which violates the state constitution by virtue of a governmental custom or policy has been alleged.
in
The question, subsidiary to this appeal, which next arises is whether a damage remedy exists for violations of individual rights protected by the Michigan Constitution. No general statute provides such a remedy.5 Can such a remedy be inferred directly from protections found in the Michigan Constitution?
No lawyer is unaware of the damage remedy *645implicit in Bivens v Six Unknown Federal Narcotics Agents, 403 US 388; 91 S Ct 1999; 29 L Ed 2d 619 (1971), for violations by federal officers of rights protected by the Fourth Amendment of the United States Constitution.6 In Bivens, the United States Supreme Court recognized a cause of action for damages against individual federal officers arising directly from the Fourth Amendment, rather than from legislation. In a brief opinion, the Court noted that money damages are "the ordinary remedy for an invasion of personal interests in liberty,” id., p 395, that the case involved "no special factors counselling hesitation in the absence of affirmative action by Congress,” id., p 396, and that " '[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.’ ” Id., p 397, quoting Marbury v Madison, 5 US (1 Cranch) 137, 163; 2 L Ed 60 (1803).
After Bivens, the United States Supreme Court has inferred damage remedies directly from other provisions of the United States Constitution. See Davis v Passman, 442 US 228; 99 S Ct 2264; 60 L Ed 2d 846 (1979) (Fifth Amendment equal protection cause of action for gender-based discrimination), and Carlson v Green, 446 US 14; 100 S Ct 1468; 64 L Ed 2d 15 (1980) (Eighth Amendment cause of action). Lower federal courts have also inferred damage remedies under the First and Sixth Amendments. See, generally, Anno: Implication of private right of action from provision of *646United States Constitution — Federal cases, 64 L Ed 2d 872 (1980).
In state courts, the Bivens-type judicially inferred damage cause of action for violations of state constitutions has received a varied response. See, generally, Friesen, Recovering damages for state bills of rights claims, 63 Tex L R 1269 (1985). Several state courts have recognized damage remedies inferred from state constitutional provisions. See Widgeon v Eastern Shore Hosp Center, 300 Md 520; 479 A2d 921 (1984) (improper seizure and due process); Schreiner v McKenzie Tank Lines, 408 So 2d 711 (Fla App, 1982), approved by 432 So 2d 567 (Fla, 1983) (employment discrimination); Gay Law Students Ass’n v Pacific Telephone & Telegraph Co, 24 Cal 3d 458; 156 Cal Rptr 14; 595 P2d 592 (1979) (Equal Protection Clause); Walinski v Morrison & Morrison, 60 Ill App 3d 616; 18 Ill Dec 89; 377 NE2d 242 (1978) (employment discrimination); Strauss v New Jersey, 131 NJ Super 571; 330 A2d 646 (1974) (due process violation). Several other state courts have commented favorably upon inferred constitutional damage remedies, albeit in dicta. See, e.g., Phillips v Youth Development Program, 390 Mass 652, 657-658; 459 NE2d 453 (1983) ("a person whose constitutional rights have been interfered with may be entitled to judicial relief even in the absence of a statute providing a procedural vehicle for obtaining relief’). Other states have avoided the issue by finding a statutory cause of action. See, e.g., State v Haley, 687 P2d 305, 317-318 (Alas, 1984). Some courts have rejected the remedy primarily, one suspects, because of the doctrines of sovereign or governmental immunity, rather than because of a rejection of the Bivens analysis. See Figueroa v Hawaii, 61 Hawaii 369, 382; 604 P2d 1198 (1979) ("we are not free to abolish the State’s sovereign immunity and *647the State remains immune from a Bivens-type claim”); Rockhouse Mtn Property Owners Ass’n v Town of Conway, 127 NH 593; 503 A2d 1385 (1986) (governmental immunity a factor in denying damage remedy for alleged violations of state due process and equal protection).
We would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases. As the Bivens Court recognized, there are circumstances in which a constitutional right can only be vindicated by a damage remedy and where the right itself calls out for such a remedy. On the other hand, there are circumstances in which a damage remedy would not be appropriate. The absence of any other remedy would, as in Bivens, heighten the urgency of the question. Justice Harlan, concurring in Bivens, states that "[t]he question then, is, as I see it, whether compensatory relief is 'necessary’ or 'appropriate’ to the vindication of the interest asserted.” 403 US 407. In answering this question in the positive, Justice Harlan commented, "[f]or people in Bivens’ shoes, it is damages or nothing.” Id., p 410. Where a statute provides a remedy, the stark picture of a constitutional provision violated without remedy is not presented. While a Bivens-type action may still be inferred, see Carlson v Green, supra (federal tort claims remedy no bar to Bivens action), the existence of a legislative scheme may constitute "special factors counselling hesitation,” Bivens, supra, p 396, which militate against a judicially inferred damage remedy. See, e.g., Bush v Lucas, 462 US 367; 103 S Ct 2404; 76 L Ed 2d 648 (1983) (no Bivens-type damage remedy for federal civil servant alleging First Amendment violations by employer; Congress enacted comprehensive civil service statutes and is in the best position to decide *648the relevant public policy issues); Chappell v Wallace, 462 US 296, 304; 103 S Ct 2362; 76 L Ed 2d 586 (1983) (no Bivens remedy for Navy enlistees claiming racial discrimination by superior officers; the unique disciplinary structure of military life and congressional exercise of plenary authority over the military are special factors counselling hesitation).
IV
Whether a damage remedy should be inferred in this case cannot properly be decided on this record. We would remand the case to the trial court for further development below. In light of the complexity of the question, however, the following observations may be helpful.
The first step in recognizing a damage remedy for injury consequent to a violation of our Michigan Constitution is, obviously, to establish the constitutional violation itself. Plaintiffs complaint, count hi, item 29, alleges:
[A] violation of Jack Smith’s constitutional rights as set out in the various State Constitutions, including without limitation Art [2], Section 16, of the Michigan Constitution of 1908, in that he was deprived of a meaningful life, deprived of his liberty, and deprived of property elements of his life without due process of law.[7]
Plaintiffs amended complaint, item 29a, alleges "a violation of Jack Smith’s constitutional right to equal protection under 1908 Mich Const, Art [2], *649Section l.”8 Plaintiffs specific claims thus rest upon equal protection and due process violations.
Federal courts have struggled with the question what constitutes a violation of due process for purposes of 42 USC 1983. See, generally, Win-borne, ed, Civil Actions Against State Government: Its Divisions, Agencies and Officers (McGraw-Hill, 1982), § 10.27. The federal Due Process Clause9 includes three basic components: procedural due process,10 substantive due process,11 and incorporation of specific Bill of Rights protections:
[The Due Process] Clause is the source of three different kinds of constitutional protection. First, it incorporates specific protections defined in the Bill of Rights. Thus, the State, as well as the Federal Government, must comply with the commands in the First and Eighth Amendments; so, too, the State must respect the guarantees in the Fourth, Fifth, and Sixth Amendments. Second, it contains *650a substantive component, sometimes referred to as "substantive due process,” which bars certain arbi-. trary government actions "regardless of the fairness of the procedures used to implement them.” Third, it is a guarantee of fair procedure, sometimes referred to as "procedural due process”: the State may not execute, imprison, or fine a defendant without giving him a fair trial, nor may it take property without providing appropriate procedural safeguards. [Daniels v Williams, 474 US 327, —; 106 S Ct 662; 88 L Ed 2d 662, 672 (1986) (Stevens, J., concurring). Citations omitted.]
In Daniels v Williams, the United States Supreme Court held that the negligence of state officials does not constitute a violation of either procedural or substantive due process: "We conclude that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property.” 88 L Ed 2d 666. See also Davidson v Cannon, 474 US 344; 106 S Ct 668; 88 L Ed 2d 677 (1986) (official’s negligence is not a violation of procedural due process).
The plaintiff’s complaint does not specify whether procedural due process or substantive due process claims are at issue. Neither have the parties fully briefed or argued the question whether a constitutional violation actually occurred in this case. Therefore, it is only appropriate to leave this thorny issue for later factual development and legal argument.
The second step in considering an inferred damage remedy for a violation of the Michigan Constitution is to consider the text, history, and previous interpretations of the specific provision for guidance on the propriety of a judicially inferred damage remedy. The provision itself may commit creation of a remedy to the Legislature rather than *651the courts.12 Again, the application of this factor to the instant case must be left for development in future proceedings.
Finally, various other factors, dependent upon the specific facts and circumstances of a given case, may militate against a judicially inferred damage remedy for violation of a specific constitutional provision. For example, the federal courts have refused a damage remedy in the face of Congress’ exercise of its special authority over the military, see Chappell v Wallace, supra, and its special role in personnel management vis-á-vis federal employees, Bush v Lucas, supra. Other concerns, such as the degree of specificity of the constitutional protection, should also be considered. For example, there was no question in Bivens, supra, that the defendants had violated the warrant requirements of the Fourth Amendment. These search and seizure protections are, however, relatively clear-cut in comparison to the Due Process and Equal Protection Clauses. See Monaghan, The Supreme Court, 1974 term forward: Constitutional common law, 89 Harv L R 1, 44-45 (1975) (substantive guarantees of due process and equal protection are troubling in their indeterminate character). The clarity of the constitutional protection and violation in a given case should be a factor in determining the propriety of a judicially imposed damage remedy. Another factor important in federal cases has been the availability of another remedy. In Bivens, supra, the lack of any alternative remedy was certainly a matter of concern to the United States Supreme Court. On the other hand, the presence of an alternate remedy in *652Chappell v Wallace, supra, was a factor weighing against a damage remedy for constitutional violations.
v
CONCLUSION
We would hold that neither statutory nor common-law governmental immunity bars a suit in a state court alleging violation by the state of a right protected by our Michigan Constitution. Furthermore, we would acknowledge the possible propriety of a Bivens-type damage remedy for violation of a right protected by our state constitution. Because the record in the instant case, Smith v Dep’t of Public Health, is inadequate for determining whether a violation of the Michigan Constitution occurred by virtue of a governmental custom or policy, and, if such a violation occurred, whether it is one for which a damage remedy is proper, we would remand the case for further proceedings not inconsistent with this opinion.
Cavanagh, J., concurred with Boyle, J.This opinion deals solely with allegations of violations of the state constitution.
Art 11, § 1 provides:
All officers, legislative, executive and judicial, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of_according to the best of my ability. No other oath, affirmation, or any *641religious test shall be required as a qualification for any office or public trust.
Ross held that vicarious liability can only be imposed on governmental agencies "when its officer, employee, or agent, acting during the course of employment and within the scope of authority, commits a tort while engaged in an activity that is nongovernmental or proprietary, or which falls within a statutory exception.” Ross, supra, p 625. In Ross, of course, the question of constitutional torts was not present.
This holding would apply only to actions in our state courts. No intent to judicially abrogate the state’s immunity under the Eleventh Amendment of the United States Constitution from suit in federal court is thereby expressed or implied. As the United States Supreme Court stated in Pennhurst State School & Hosp v Halderman, 465 US 89, 99-100; 104 S Ct 900; 79 L Ed 2d 67 (1984), "[T]he Court consistently has held that a State’s waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.” Id., p 99, n 9. Thus, waiving immunity to suit in our state courts for violations of our state constitution by the state would not subject the state to suit in federal court for such violations. See, generally, Althouse, How to build a separate sphere: Federal courts and state power, 100 Harv L R 1485 (1987) (federal courts’ jurisdictional doctrine should respect state autonomy to develop law and procedure so long as federal goals are adequately implemented). Federal cases have held that state statutes conferring exclusive jurisdiction on specific courts over specific claims against the state do not also waive the state’s immunity from similar suits in federal court. See, e.g., McDonald v Illinois, 557 F2d 596, 600-601 (CA 7, 1977), and Richins v Industrial Construction, Inc, 502 F2d 1051 (CA 10, 1974).
In Massachusetts, the Civil Rights Act of 1979 provides a remedy for violations of state constitutional rights. See Massachusetts General Laws Annotated, ch 12, §§ 11 H—11 I. See also Phillips v Youth Development Program, 390 Mass 652, 657-658; 459 NE2d 453 (1983) (employment discrimination).
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The pertinent portion of Const 1908, art 2, § 16 provides:
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 first sentence of Const 1963, art 1, § 17, has identical language.
Const 1908, art 2, § 1 provides that "[a]ll political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” This provision has been construed as providing equal protection guarantees equivalent to those in the Fourteenth Amendment of the United States Constitution. Gauthier v Campbell, 360 Mich 510; 104 NW2d 182 (1960).
The Fourteenth Amendment of the United States Constitution provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
See, e.g., Parratt v Taylor, 451 US 527; 101 S Ct 1908; 68 L Ed 2d 420 (1981) (no violation of procedural due process because postdeprivation procedures were sufficient).
See, e.g., O’Connor v Donaldson, 422 US 563, 573-576; 95 S Ct 2486; 45 L Ed 2d 396 (1975) (knowing continued confinement of nondangerous and perhaps sane patient in a mental hospital with no treatment violated patient’s "constitutional right to freedom”); Youngberg v Romeo, 457 US 307, 324; 102 S Ct 2452; 73 L Ed 2d 28 (1982) (patients in state institution for the retarded constitutionally entitled to "reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests”).
See, e.g., Const 1963, art 1, § 2, thought by many to delegate the creation of remedies for equal protection violations solely to the Legislature. Cramton, The powers of the Michigan Civil Rights Commission, 63 Mich L R 5, 13 (1964). We make no comment on the propriety of this assumption at this time.