Warda v. CITY COUNCIL OF CITY OF FLUSHING

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MAY 18, 2005

STEPHEN W. WARDA,

Plaintiff-Appellee,

v No. 125561

CITY COUNCIL OF THE CITY OF
FLUSHING AND CITY OF FLUSHING,

Defendants-Appellants.

_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

The question presented in this case is whether,

pursuant to MCL 691.1408(2), Michigan courts possess the

authority to review a city council’s discretionary decision

to grant or deny reimbursement of private attorney fees

incurred by a city police officer. Because the city

council’s decision under this statute constitutes a

discretionary act of a separate branch of government, the

judiciary is without authority to review it. Accordingly,

we reverse the judgment of the Court of Appeals and remand
this matter to the circuit court for entry of an order

dismissing plaintiff’s claims.

I. Facts and Procedural History

Plaintiff was a Flushing police officer for

approximately twenty years. Early in his career, at the

suggestion of the chief of police, plaintiff obtained

special training from the Secretary of State that certified

him to inspect "salvage vehicles."1 Plaintiff's employer

paid for the training, and plaintiff received his regular

pay while he attended the salvage vehicle inspection

course.

At all times relevant to this case, an inspection fee

of $25 was established by statute. MCL 257.217c(7). On

the occasions that plaintiff conducted inspections in

Flushing, plaintiff turned over this fee to the city, which

deducted taxes and then remitted the balance to plaintiff

along with his regular pay. On those occasions plaintiff

conducted inspections outside Flushing, neither the police

department nor the city of Flushing received any part of

1
MCL 257.217c concerns the acquisition and transfer of
distressed vehicles. In general, a seriously damaged
vehicle (i.e., a “distressed vehicle” as defined by MCL
257.12a) must be issued a salvage certificate of title.
The process of obtaining such a title requires an
inspection and certification of certain matters by a
specially trained officer. The specially trained officer
must be a police officer and must be certified by the
Secretary of State. MCL 257.217c(25), (26). The Secretary
of State is responsible for overseeing the conduct of
specially trained officers, and may suspend, revoke, or
deny an officer's certification. MCL 257.217c(26).
2
the associated fees. Plaintiff conducted the vast majority

of his inspections outside his regular duty shift hours.

Plaintiff characterized his inspection work as

"moonlighting" and as providing "supplementary income."

On March 2, 1992, plaintiff completed two inspection

reports related to salvage vehicle inspections he conducted

in Macomb County.2 In these reports, plaintiff verified

that certain repairs had been made when in fact they had

not, and declared that the vehicles were roadworthy when in

fact they were not. Following a criminal investigation,

plaintiff was charged in April 1994 with false

certification, a felony. MCL 257.903. The city discharged

plaintiff on May 25, 1994, for violating department rules

and regulations, including misconduct and lying about the

inspections to a Michigan State Police investigator.

However, in June 1997, a jury in Macomb County acquitted

plaintiff of the criminal charge of false certification.

Subsequently, plaintiff requested payment of $205,000

from defendant for attorney fees incurred in defending the

criminal charges. Plaintiff cited MCL 691.1408(2) as a

basis for the city to reimburse such fees. By a resolution

adopted at a meeting on September 8, 1997, the city council

denied this request; it reiterated its position in a

resolution adopted on June 22, 1998. The two resolutions

2
The city of Flushing is located in Genesee County.

3
explained that plaintiff's request for fees was denied

because plaintiff's actions that had resulted in the fees

were not for any "public purpose" of the city of Flushing

and fell outside the scope of plaintiff's employment with

the city.

Plaintiff filed the instant complaint for declaratory

relief and a motion for summary disposition, contending

that the city abused its discretion in denying his request

for attorney fees. Following a two-day bench trial in

October 2001, the trial court found that: (1) while

performing salvage vehicle inspections, plaintiff was

acting in the course of his duties as a Flushing police

officer; (2) the city council did not "offer one credible

or acceptable reason" for denying plaintiff's fee request;

and (3) a reasonable attorney fee was $109,200.

In a divided opinion, the Court of Appeals affirmed.

Unpublished opinion per curiam, issued December 23, 2003

(Docket No. 241188). The majority concluded that the

circuit court had not clearly erred in finding that

plaintiff acted within the scope of his employment when he

inspected salvage vehicles, or in finding that the city

abused its discretion when it denied plaintiff

reimbursement of his attorney fees. The dissenting judge

would have reversed, concluding that the circuit court had

clearly erred in finding that plaintiff's work as a salvage

4

vehicle inspector fell within the scope of his employment

as a Flushing police officer.

We granted oral argument on whether to grant

defendants’ application for leave to appeal pursuant to MCR

7.302(G)(1), and directed the parties to include among the

issues briefed “whether the city council's decision is

subject to judicial review.” Warda v Flushing City

Council, 471 Mich 907 (2004).

II. Standard of Review

This dispute requires us to determine whether the

judiciary has the authority pursuant to the Constitution

and MCL 691.1408(2) to review the city council’s denial of

plaintiff’s request for reimbursement. We review these

issues de novo. Lapeer Co Clerk v Lapeer Circuit Judges,

465 Mich 559, 566; 640 NW2d 567 (2002); Jeffrey v Rapid

American Corp, 448 Mich 178, 184; 529 NW2d 644 (1995).

III. Analysis

The question presented here concerns the extent to

which the decision of a municipality to deny reimbursement

for attorney fees under MCL 691.1408(2) is subject to

judicial review. Michigan has long recognized that a

municipality may indemnify a police officer for costs,

including attorney fees, incurred because of the discharge

of the officer's official duties. Messmore v Kracht, 172

Mich 120, 122; 137 NW 549 (1912). This principle is

5

reflected in § 8 of the governmental immunity act, MCL

691.1408. As for the costs incurred by an officer in

defending a criminal action based on conduct of the officer

in the course of his employment, MCL 691.1408(2) provides:

When a criminal action is commenced against
an officer or employee of a governmental agency
based upon the conduct of the officer or employee
in the course of employment, if the employee or
officer had a reasonable basis for believing that
he or she was acting within the scope of his or
her authority at the time of the alleged conduct,
the governmental agency may pay for, engage, or
furnish the services of an attorney to advise the
officer or employee as to the action, and to
appear for and represent the officer or employee
in the action. An officer or employee who has
incurred legal expenses after December 31, 1975
for conduct prescribed in this subsection may
obtain reimbursement for those expenses under
this subsection. [Emphasis added.]

For purposes of the statute, “governmental agency” is

defined as “the state or a political subdivision.” MCL

691.1401(d). “Political subdivision” is further defined:

“Political subdivision” means a municipal
corporation, county, county road commission,
school district, community college district, port
district, metropolitan district, or
transportation authority or a combination of 2 or
more of these when acting jointly; a district or
authority authorized by law or formed by 1 or
more political subdivisions; or an agency,
department, court, board, or council of a
political subdivision. [MCL 691.1401(b)
(emphasis added).]

Thus, the Flushing city council constitutes a “governmental

agency” for purposes of the governmental immunity act.

The use of the word “may” in § 8 makes clear that the

decision to pay an officer's attorney fees is a matter left
6
to the discretion of the municipality. Further, we note

that the statute does not limit or qualify the word “may”

(with, for instance, a requirement of reasonableness) or

provide any other standards by which that discretion is to

be exercised. As such, the Flushing city council had full

discretion under MCL 691.1408(2) in choosing whether to

reimburse plaintiff’s attorney fees.

The question, then, is the nature of this Court's

power to review a purely discretionary action taken by a

governmental agency. In Veldman v Grand Rapids, 275 Mich

100; 265 NW 790 (1936), we were faced with the question

whether the plaintiffs, a group of Grand Rapids taxpayers,

could sue to prevent the city’s purchase of a power plant,

where such purchase had been approved by that city’s

legislative body, the city commission. This Court

observed:

If the city commission had legal authority
to do what it did do, that ends the matter. The
question of whether the commissioners acted
wisely or unwisely is not for the consideration
or determination of this court.

* * *

If the charter of the city of Grand Rapids
is constitutional, and of this there seems to be
no question, and the State has thus conferred
upon the city commission the power which it
exercised and left the exercise of it to the
judgment and discretion of the commissioners,
then their action is conclusive. [Id. at 112-
113.]

7

 In the instant case, the state, through § 8 (the

constitutionality of which has not been challenged), has

clearly “conferred upon the city [council] the power which

it exercised and left the exercise of it to the judgment

and discretion” of the city council. Veldman, supra at

113. While the statute affords the city council the

discretion to decide whether to reimburse a claim for

attorney fees, the statute says nothing about the limits

within which that discretion is to be exercised, let alone

by which an appellate court would be guided in its review

of a decision made pursuant to that discretion. As such,

the Flushing city council’s action to deny reimbursement of

attorney fees is conclusive. Whether the council acted

wisely or unwisely, prudently or imprudently, is not for

the consideration or determination of this Court.3

3
We stress that this opinion only precludes the
judiciary from reviewing the discretionary decision-making
of legislative and executive agencies. Where decision-
making falls outside the scope of such discretion, such
decision-making would be fully subject to judicial review.

For instance, MCL 691.1408(2) confers discretionary
decision-making authority on a governmental agency if three
criteria are met: (1) a criminal action has been commenced
against an employee; (2) the criminal action is based on
the conduct of the employee occurring in the course of
employment; and (3) the employee has a reasonable basis for
believing that he or she was acting within the scope of his
or her authority at the time of the conduct. If any of
these three criteria are not satisfied, a legislative or
executive agency would lack the statutory discretion to
award attorney fees. Therefore, if a legislative or
executive agency chose to award attorney fees to a
nonemployee, for example, the discretion afforded the
8
 As a result, we see no need to take sides in the

matter addressed and resolved, both by the trial court and

the Court of Appeals, regarding whether plaintiff's work as

a salvage vehicle inspector fell within the scope of his

employment as a Flushing police officer.

The following passage from People v Gardner, 143 Mich

104, 106; 106 NW 541 (1906), succinctly summarizes both

the role of the judiciary and the appropriate form of

relief available to a plaintiff in a matter of this sort:4

“The general rule is well established that
courts will not inquire into the motives of
legislators where they possess the power to do
the act, and it has been exercised as prescribed
by the organic law. In such case the doctrine is
that the legislators are responsible alone to the
people who elect them. And this principle is
generally applied to purely legislative acts of
municipal corporations.” [Citation omitted.]

agency under MCL 691.1408(2) would not preclude the courts
from reviewing such a decision, because the preconditions
giving rise to the discretionary authority would not have
been met.
4
In the past this Court has considered whether such
discretionary actions are subject to judicial review and
have concluded that they are not. See, e.g., Schwartz v
City of Flint, 426 Mich 295, 305-313; 395 NW2d 678 (1986).
These cases are predicated on the doctrine of separation of
powers that is set forth in Const 1963, art 3, § 2, which
provides that “[t]he powers of government are divided into
three branches: legislative, executive and judicial,” and
further provides that “[n]o person exercising powers of one
branch shall exercise powers properly belonging to another
branch except as expressly provided in this constitution.”
We have recognized that the doctrine of the separation of
powers applies to municipalities when exercising the powers
delegated to them by the Legislature pursuant to Const
1963, art 7, §§ 21 and 22.
9
 So long as the power to govern the city and control

its affairs is vested by the people of Flushing in an

elected city council, neither this Court nor any other may

assume to direct the local policy of the city of Flushing.

See Veldman, supra at 111; Huse v East China Twp Bd, 330

Mich 465, 470-471; 47 NW2d 696 (1951). Here, the city

council concluded that the reimbursement of plaintiff’s

attorney fees would not serve the “public purposes” of the

city of Flushing, and chose not to reimburse such fees.

While such a decision might be one with which reasonable

people would disagree, its wisdom is ultimately to be

judged by the voters of the city of Flushing, and not by

the judiciary of this state. Accordingly, because the

statute provides no limits within which the city council’s

discretion is to be exercised, let alone by which an

appellate court would be guided in its review of an

exercise of that discretion, MCL 691.1408(2) affords

plaintiff no basis for relief.5

Moreover, in enacting MCL 691.1408(3), which precludes

governmental liability under this act, the Legislature

demonstrated an appreciation of this limitation on judicial

5
Plaintiff here does not identify any other statute
pertinent to defendants that would render their conduct
either illegal or ultra vires. See People v Ford, 417 Mich
66, 91; 331 NW2d 878 (1982). Obviously, the fact that one
statute does not render conduct unlawful does not mean that
another statute may not do so.

10

power. MCL 691.1408(3), then, is not inharmonious with the

separation of powers considerations that we have set forth.

However, while we conclude that there is no statutory

basis for our review of the city council’s decision, that

conclusion does not end the inquiry. Even a discretionary

action of a governmental agency must still comport with the

constitutions of this state and the United States. As we

have noted elsewhere:

[T]he power of judicial review does not
extend only to invalidating unconstitutional
statutes or other legislative enactments, but
also to declaring other governmental action
invalid if it violates the state or federal
constitution. [Sharp v City of Lansing, 464 Mich
792, 810-811; 629 NW2d 873 (2001).]

The decisions of a governmental agency, for example,

to award attorney fees on the basis of race, religion, or

nationality might implicate the equal protection guarantees

of the federal and state constitutions, while decisions

influenced by corruption might implicate the due process

guarantees of these same constitutions. See Huse, supra at

470-471.

However, plaintiff here does not suggest that the city

council’s decision was unconstitutional in any way. Nor is

there any evidence in the record that would suggest such

unconstitutionality. Rather, the record reflects that the

city council was faced with a discretionary decision that

required it to choose among several permissible outcomes,

11

and it chose accordingly. The gravamen of plaintiff’s

argument is simply that he is unhappy with the option the

city council selected. Yet his dissatisfaction, however

reasonable to this Court, does not call into question an

otherwise valid decision of a governmental agency.6 Where,

6
While the exercise of discretion at issue here (a
city council resolution) was legislative in nature, our
holding extends equally to encompass discretionary actions
undertaken by the executive branch in the absence of a
guiding standard. In Sutherland v Governor, 29 Mich 320,
321 (1874), the Governor was empowered by statute to issue
a certificate of approval “when he shall be satisfied that
certain work has been done in conformity with the law.”
The parties performing the work brought a mandamus action
to compel the Governor to issue such a certificate. This
Court declined, for lack of jurisdiction, to entertain the
application for mandamus. We observed:

The law must leave the final decision upon
every claim and every controversy somewhere, and
when that decision has been made, it must be
accepted as correct. The presumption is just as
conclusive in favor of executive action as in
favor of judicial. The party applying for
action, which, under the constitution and laws,
depends on the executive discretion, or is to be
determined by the executive judgment, if he fails
to obtain it, has sought the proper remedy and
must submit to the decision. [Id. at 330-331.]

See also Midland Co Bd of Supervisors v Auditor General, 27
Mich 165, 166 (1873) (“the exercise of an official
discretion belonging to an executive department of the
State government, is not subject to review judicially, and
cannot, therefore, be examined upon certiorari from this
Court”).

Where the executive carries out a function that is
part of the inherent executive power and for which there
are no constitutional or other standards, the judiciary is
equally without power to review executive action. See,
e.g., United States v Curtiss-Wright Export Corp, 299 US
304, 320; 57 S Ct 216; 81 L Ed 255 (1936) (noting that the
President’s inherent power to handle international
12
as here, a statute empowers a governmental agency to

undertake a discretionary decision, and provides no limits

to guide either the agency’s exercise of that discretion or

the judiciary’s review of that exercise, the decision is

not subject to judicial review absent an allegation that

the exercise of that discretion was unconstitutional.

In reaching a contrary conclusion, the Court of

Appeals relied on Exeter Twp Clerk v Exeter Twp Bd, 108

Mich App 262; 310 NW2d 357 (1981), and Bowens v City of

Pontiac, 165 Mich App 416; 419 NW2d 24 (1988). In Exeter,

a township clerk hired private counsel in connection with a

primary election after the township attorney declined to

advise her on the legality of certain nominating petitions.

When the township board refused to reimburse the clerk for

relations “does not require as a basis for its exercise an
act of Congress, but . . . must be exercised in
subordination to the applicable provisions of the
Constitution”); Cunningham v Neagle, 135 US 1; 10 S Ct 658;
34 L Ed 55 (1890).

Where an executive branch action constitutes action
taken pursuant to a legislative grant of authority and in
accordance with standards set forth by the Legislature—a
realm of action that encompasses virtually all
administrative agency actions—it would normally be subject
to judicial review. In such cases, there would be a
legislatively set standard that a court of law would apply
in reviewing such an action. See Dep't of Natural
Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206
(1976).

13

her attorney fees and costs, she filed a mandamus action to

obtain reimbursement under MCL 691.1408.7

The Exeter panel recognized that there were “no

statutory guidelines demonstrating any legislative intent

to answer the question of legal fee indemnification or

reimbursement,” and no cases directly on point. Exeter,

supra at 268. The panel also recognized the wide

discretion afforded to a municipality under the statute:

[A] municipality, such as a township, in
general possesses the discretion to determine
whether (1) counsel for the township shall
represent a township official sued in his or her
capacity, (2) to approve retention of private
counsel paid for by the township, (3) to
indemnify the official for expenses incurred in
defending the action, including attorneys fees,
or (4) the township board may decline to provide
legal representation or indemnification for such
official. [Id. at 269.]

However, in spite of this recognition, the Exeter

panel disregarded the latitude statutorily afforded to the

7
We note that while plaintiff in the instant case did
not label his complaint as one for mandamus, he was in
essence seeking a writ of mandamus from the circuit court
to compel the city council to pay him his attorney fees.
However, a writ of mandamus will be issued only where a
plaintiff can prove that he has a “‘clear legal right to
performance of the specific duty sought to be compelled’
and that the defendant has a ‘clear legal duty to perform
such act . . . .’” In re MCI Telecom Complaint, 460 Mich
396, 442-443; 596 NW2d 164 (1999) (citation omitted).
While this rule may have prompted the Court in Exeter to
create its “pressing necessity” exception, there is simply
no statutory basis for such an exception. Accordingly,
because MCL 691.1408(2) provides only that a governmental
agency “may” reimburse attorney fees, plaintiff has not
shown that he had a “clear legal right” to reimbursement,
nor that the city council had a “clear legal duty” to
reimburse him. In re MCI, supra.
14
municipality. The panel overlooked the fact that MCL

691.1408 provided no guidance regarding what standards an

appellate court might employ in reviewing the township's

decision; instead, it simply reviewed the decision for an

abuse of discretion. Id.

The Exeter panel then proceeded to create a “pressing

necessity” exception from statutory language, MCL 691.1408,

that contained no such exception:

Where it is factually demonstrated that
pressing necessity or emergency conditions
warrant a municipal official in employing legal
counsel in a matter of official, public concern
and legal services are provided without consent
of the governing body, the courts may hold a
municipal corporation liable for such legal
services. [Exeter, supra at 269-270.]

The Court of Appeals later extended this exception to

apply to legal expenses incurred in the course of defending

criminal charges. In Bowens, supra, a city councilman who

went “undercover” to investigate illegal gambling within

his district was wrongly implicated in a gambling

enterprise, and incurred legal expenses defending against

the resulting criminal charges. The Court of Appeals

concluded that the plaintiff acted reasonably, in good

faith, and for a public purpose in doing what he did, and

that the Exeter exception applied because the “plaintiff

had been faced with an emergency in immediately requiring

the services of a skilled criminal attorney.” Bowens,

supra at 420.
15

 We believe that the Court of Appeals panels in Exeter

and Bowens misapprehended the limited role afforded to the

judiciary in cases involving discretionary decisions of a

governmental agency. To the extent that MCL 691.1408(2)

sets forth no limits on the exercise of a governmental

agency’s discretion to reimburse attorney fees, it

concomitantly sets forth no standards by which the decision

of such agency can be reviewed meaningfully by the

judiciary. The exercise of the "judicial power" by this

Court, Const 1963, art 6, § 1, contemplates that there will

be standards—legally comprehensible standards—on the basis

of which agency decisions can be reviewed. Whether such

standards consist of the provisions of the constitution, or

the provisions of other pertinent laws, a judicially

comprehensible standard is required in order to enable

judicial review.8 Here, there is no such standard. As a

result, there is no basis upon which a court of law can

properly review the actions of defendants under MCL

691.1408(2). Absent a comprehensible standard, judicial

review cannot be undertaken in pursuit of the rule of law,

but only in pursuit of the personal preferences of

8
Cf. Baker v Carr, 369 US 186, 217; 82 S Ct 691; 7 L
Ed 2d 663 (1962)(referring in the context of the political
question doctrine to the impropriety of courts resolving
matters in which there is a “lack of judicially
discoverable and manageable standards”).
16
individual judges. The latter pursuit falls outside the

“judicial power” in Michigan.

The Court of Appeals, relying on Exeter and Bowens,

erred in concluding that decisions made pursuant to MCL

691.1408(2) are reviewable under an abuse of discretion

standard. Absent a showing that the governmental agency

exercised its discretion in an unconstitutional manner, the

courts are without the power to review such decisions.

Accordingly, we overrule Exeter and Bowens.

Because the Court of Appeals erred in reviewing the

discretionary decisions involved in Exeter and Bowens, it

follows that the exceptions to MCL 691.1408(2) the Court

invented as a product of such review are also erroneous.

However, even if the governmental agency decisions in those

cases had been properly subject to judicial review, the

exceptions invented therein still cannot stand. MCL

691.1408(2) specifies that a “governmental agency may pay

for, engage, or furnish the services of an attorney

. . . .” It says nothing about “pressing necessity” or

“emergency.” Where statutory language is clear, “‘no

further judicial construction is required or permitted, and

the statute must be enforced as written.’” Gladych v New

Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705

(2003)(citation omitted). Because the exceptions adopted

in Exeter and Bowens not only lack a statutory basis but

17

also violate the clear language of MCL 691.1408(2) that a

government agency “may” reimburse attorney fees, those

exceptions cannot stand.

IV. Conclusion

Because MCL 691.1408(2) places the decision whether to

reimburse the attorney fees at issue within the discretion

of the Flushing city council, the legislative branch of the

local government, the judiciary is not empowered to review

such decision absent a constitutional violation or other

illegality. Where a statute permits a governmental agency

to undertake a discretionary decision, and provides no

limits to guide either the agency’s exercise of that

discretion or the judiciary’s review of that exercise, the

decision is not subject to judicial review absent an

allegation that the exercise of discretion was in some way

unconstitutional. To the extent that they are contrary to

this rule, the Court of Appeals decisions in Exeter and

Bowens are overruled.

The decision of the Court of Appeals is reversed.

This matter is remanded to the circuit court for entry of

an order dismissing plaintiff’s claims.

Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.

18

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

SUPREME COURT

STEPHEN W. WARDA,

Plaintiff-Appellee,

v No. 125561

CITY COUNCIL OF THE CITY OF
FLUSHING AND CITY OF FLUSHING,

Defendants-Appellants.

_______________________________

WEAVER, J. (dissenting).

I would grant leave to appeal in this case rather than

issue a final opinion at this time. This case is currently

before the Court on an application for leave to appeal.

The Court ordered oral arguments to help it decide if it

should grant leave, deny leave, or take some peremptory

action.

In its opinion, the majority addresses the broad

question of judicial power, an issue raised by the Court,

not the parties. Such an important and far-reaching

question should not be decided without granting leave to

appeal and receiving the benefit of full oral argument and

full briefing, including inviting amicus briefing.

In granting leave to appeal, I would also ask the

parties to address whether the plaintiff has a legal remedy
under MCL 691.1408, or whether subsection 3 of the statute

prohibits the imposition of liability on a governmental

agency for a decision made pursuant to subsection 2. MCL

691.1408, at the time applicable here, stated in relevant

part:

(2) When a criminal action is commenced
against an officer or employee of a governmental
agency based upon the conduct of the officer or
employee in the course of employment, if the
employee or officer had a reasonable basis for
believing that he or she was acting within the
scope of his or her authority at the time of the
alleged conduct, the governmental agency may pay
for, engage, or furnish the services of an
attorney to advise the officer or employee as to
the action, and to appear for and represent the
officer or employee in the action. An officer or
employee who has incurred legal expenses after
December 31, 1975 for conduct prescribed in this
subsection may obtain reimbursement for those
expenses under this subsection.

(3) This section shall not impose any
liability on a governmental agency. [Emphasis
added.]

Thus, the question would be whether the Legislature has

specifically provided that a suit seeking to impose on a

governmental agency liability based on MCL 691.1408, such

as the suit here, could not be brought.

Elizabeth A. Weaver
Michael F. Cavanagh
Marilyn Kelly

2