Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 31, 2002
LINDA MACK,
Plaintiff-Appellee,
v No. 118468
THE CITY OF DETROIT,
a Michigan Municipal Corporation,
Defendant-Appellant.
_________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
Plaintiff alleges in this action that she was
discriminated against in her employment as a Detroit police
officer on the basis of her sex and sexual orientation in
violation of the declaration of rights contained in the
Charter of the city of Detroit. Plaintiff further contends
that the charter creates a private cause of action allowing
recovery for violation of the rights set forth in it.
Assuming the charter provides no explicit private right of
recovery, plaintiff alternatively urges this Court to create,
as a cumulative remedy available under the charter, such a
cause of action.
We hold that regardless of whether the charter provides
a private cause of action against the city for sexual
orientation discrimination, such a cause of action would
contravene the governmental tort liability act (GTLA), MCL
691.1407. Accordingly, we do not accept plaintiff’s
invitation to recognize such a cause of action.
Further, because the plaintiff failed to plead a
recognized claim in avoidance of governmental immunity, her
sexual orientation discrimination claim should have been
dismissed. Governmental immunity is a characteristic of
government and thus a plaintiff must plead her case in
avoidance of immunity. To the extent that it holds otherwise,
McCummings v Hurley Medical Ctr, 433 Mich 404; 446 NW2d 114
(1989), is overruled.
Accordingly, we reverse the Court of Appeals decision,
reinstate the trial court’s order of summary disposition in
favor of the city of Detroit regarding the sexual orientation
claim, and remand the case to the Court of Appeals for
reconsideration of the sex discrimination claim in light of
2
this opinion.1
I. Facts and Procedural History
In 1974, plaintiff was hired by the city as a police
officer. During the course of her employment, she attained
the status of lieutenant and held the positions of acting
inspector, acting command lieutenant, acting administrative
lieutenant, and acting inspector of the sex crimes unit. The
claims before the Court arose during plaintiff’s tenure with
the sex crimes unit.
Plaintiff alleges that, while working in the sex crimes
unit, she was repeatedly propositioned by male supervisors for
sex and that she rebuffed the unwelcome advances, in part
because she is a lesbian. Plaintiff complained to her
superiors, who allegedly refused to take any action because of
her sexual orientation. Plaintiff also claims that she
endured further discrimination and harassment as a result of
her sexual orientation. Specifically, she complains that the
police department gave her an afternoon desk job answering
phones, prohibited her from participating in any investigative
work, and restricted her from taking more than two weekends
1
The city appealed the Court of Appeals holding that the
courts could recognize a private cause of action for sexual
orientation discrimination under the city charter, but not the
court’s resolution of plaintiff’s sex discrimination claim.
For this reason, we remand the case to that Court for
reconsideration of plaintiff’s charter-based sex
discrimination claim in light of this opinion.
3
off a month. She has since retired from the police force.
Plaintiff filed suit, alleging intentional infliction of
emotional distress and violations of the charter of the city
of Detroit. Regarding the latter claims, plaintiff maintained
that the city violated § 2 of the charter’s declaration of
rights by discriminating on the basis of sex and sexual
orientation.2 The city moved for summary disposition,
asserting that plaintiff failed to state a claim upon which
relief can be granted, MCR 2.116(C)(8). Specifically, the
city argued that plaintiff’s tort claims were barred by
governmental immunity and that the city charter did not give
plaintiff a private cause of action. The trial court agreed
with the city and granted its motion for summary disposition.
Plaintiff appealed, arguing that the violation of the rights
guaranteed by the city charter created a private cause of
action.3
In a two-to-one decision, the Court of Appeals reversed,
2
Section 2 provides:
The city has an affirmative duty to secure the
equal protection of the law for each person and to
insure equality of opportunity for all persons. No
person shall be denied the enjoyment of civil or
political rights or be discriminated against in the
exercise thereof because of race, color, creed,
national origin, age, handicap, sex, or sexual
orientation.
3
Plaintiff elected not to appeal the trial court’s ruling
dismissing the intentional infliction of emotional distress
claim. Therefore, those claims are not before this Court.
4
holding that plaintiff had a private cause of action for sex
and sexual orientation discrimination. The majority reasoned
that there is an express civil right to be free from
employment discrimination based on one’s sex arising under the
Civil Rights Act, MCL 37.2101 et seq., and that the city
extended that protection to its charter.4 Relying on Pompey
v General Motors, 385 Mich 537; 189 NW2d 243 (1971), the
majority concluded that equal opportunity in the pursuit of
employment was a protected right, and because the city
extended that protection to include sexual orientation
discrimination, the courts could recognize, as a cumulative
remedy, a civil action for such a claim.
The dissent opined that it was not clear that a city had
authority to create a cause of action and questioned whether
Pompey should be extended to rights created by city charters.
The city appealed the Court of Appeals holding that the
judiciary could recognize a private cause of action for sexual
orientation discrimination. We granted leave to appeal. 464
Mich 874 (2001).
II. Standard of Review
The issues presented are whether the city charter may
create a cause of action against the city for sexual
orientation discrimination in the face of state governmental
4
243 Mich App 132; 620 NW2d 670 (2000).
5
immunity law and whether governmental immunity is an
affirmative defense or a characteristic of government so that
a plaintiff must plead in avoidance of it. These are
questions of law that the Court reviews de novo. Burt Twp v
Dep’t of Natural Resources, 459 Mich 659, 662-663; 593 NW2d
534 (1999). We also review a trial court’s decision to grant
or deny a motion for summary disposition de novo. Beaudrie v
Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). Because
this is a motion for summary disposition brought under MCR
2.116(C)(8), we test the legal sufficiency of the complaint on
the basis of the pleadings alone. Id.
III. Discussion
A. Governmental Immunity
Plaintiff contends that the charter expressly creates a
private cause of action for sexual orientation
discrimination.5 However, whether the charter attempted to
create a private cause of action for sexual orientation
discrimination is an irrelevant inquiry because we hold that
5
In the alternative, plaintiff urges this Court to extend
the holding in Pompey to recognize a cumulative remedy for
sexual orientation discrimination under the charter. We
decline to do so. Rather, we conclude that Pompey is
inapplicable to the case before us. Pompey contemplated a
cumulative remedy for discrimination in private employment,
whereas plaintiff in this case seeks to impose liability on a
municipality. Accordingly, unlike the Court in Pompey, we
must address whether governmental immunity precludes the Court
from recognizing a private cause of action for a
municipality’s tortious conduct except as expressly authorized
by the Legislature.
6
the charter could not create a cause of action against the
city without contravening state governmental immunity law.6
Const 1963, art 7, § 22 governs the authority of a city
to enact a charter:
Under general laws the electors of each city
and village shall have the power and authority to
frame, adopt and amend its charter, and to amend an
existing charter of the city or village heretofore
granted or enacted by the legislature for the
government of the city or village. Each such city
and village shall have power to adopt resolutions
and ordinances relating to its municipal concerns,
property and government, subject to the
constitution and law. No enumeration of powers
granted to cities and villages in this constitution
shall limit or restrict the general grant of
authority conferred by this section. [Emphasis
added.]
Thus, although art 7, § 22 grants broad authority to
municipalities, it clearly subjects their authority to
6
Justice CAVANAGH ’s assertion that whether the charter
creates a cause of action is a relevant inquiry because its
answer affects causes of actions against nongovernmental
entities ignores the fact that our opinion pertains only to
actions against governmental entities. Because we are only
addressing the creation of a cause of action against a
governmental entity, whether the charter does or does not
create such an action is ultimately irrelevant because the
GTLA does not permit such an action. Our opinion does not
address, as Justice CAVANAGH curiously alleges, whether a city
can create a cause of action against nongovernmental entities.
We also point out that discrimination claims have always
been characterized as a species of statutory tort. Donajkowski
v Alpena Power Co, 460 Mich 243, 247; 569 NW2d 574 (1999).
Consequently, Justice CAVANAGH ’s suggestion that a charter
discrimination claim might not fall within the ambit of the
GTLA is without foundation.
7
constitutional and statutory limitations.7
One such statutory limitation involves governmental
immunity. In the governmental tort liability act (GTLA), the
Legislature expressly stated that “[e]xcept as otherwise
provided in this act, a governmental agency is immune from
tort liability if [it] is engaged in the exercise or discharge
of a governmental function.” MCL 691.1407(1). Accordingly,
a governmental agency is immune unless the Legislature has
pulled back the veil of immunity and allowed suit by citizens
against the government. The GTLA allows suit against a
governmental agency in only five areas.8 However, there are
7
This constitutional limitation on a municipality’s
authority is repeated in the Home Rule City Act, most
emphatically in MCL 117.36, which states:
No provisions of any city charter shall
conflict with or contravene the provisions of any
general law of the state.
See also MCL 117.4j(3), which governs permissible charter
provisions:
[Each city may in its charter provide] [f]or
the exercise of all municipal powers in the
management and control of municipal property and in
the administration of the municipal government,
whether such powers be expressly enumerated or not;
for any act to advance the interests of the city,
the good government and prosperity of the
municipality and its inhabitants and through its
regularly constituted authority to pass all laws
and ordinances relating to its municipal concerns
subject to the constitution and general laws of
this state. [Emphasis added.]
8
The five statutory exceptions to governmental immunity
are the “highway exception,” MCL 691.1402, the “motor vehicle
8
other areas outside the GTLA where the Legislature has allowed
specific actions against the government to stand, such as the
Civil Rights Act.9 Further, municipalities may be liable
pursuant to 42 USC 1983. Monell v New York City DSS, 436 US
658; 98 S Ct 2018; 56 L Ed 2d 611 (1978).
However, none of the exceptions where a suit is allowed
against the government can be read to allow suit for sexual
orientation discrimination. Likewise, no statute grants
governmental agencies the authority to create an immunity
exception for sexual orientation discrimination or waive
immunity in the area of civil rights. Notably, the CRA, which
makes a municipality liable for specific civil rights
violations, neither provides a cause of action for sexual
orientation discrimination nor grants municipalities the
authority to create one. MCL 37.2101 et seq.10 Moreover, the
exception,” MCL 691.1405, the “public building exception,” MCL
691.1406, the “proprietary function exception,” MCL 691.1413,
and the “governmental hospital exception,” MCL 691.1407(4).
9
MCL 37.2103(g) and 37.2202(a); see Manning v Hazel
Park, 202 Mich App 685, 699; 509 NW2d 874 (1993) (governmental
immunity is not a defense to a claim brought under the Civil
Rights Act).
10
Indeed, as this Court has consistently held since its
seminal case, Ross, exceptions to governmental immunity are
narrowly construed. See, e.g., Haliw v Sterling Heights, 464
Mich 297, 303; 627 NW2d 581 (2001); Nawrocki v Macomb Co Rd
Comm, 463 Mich 143, 149; 615 NW2d 702 (2000); Ross v Consumers
Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641
(1984). Consequently, because the CRA does not recognize
sexual orientation discrimination, that act cannot be
construed as providing a basis for governmental agencies to
9
CRA limits complaints to causes of action for violations of
the act itself:
A person alleging a violation of this act may
bring a civil action for appropriate injunctive
relief or damages, or both. [MCL 37.2801(1)
(emphasis added).][11]
In sum, without some express legislative authorization,
the city cannot create a cause of action against itself in
contravention of the broad scope of governmental immunity
established by the GTLA. No such legislative act has
recognized sexual orientation discrimination claims.
Accordingly, this Court declines to circumvent the limitations
placed on a municipality by the Legislature and recognize a
cause of action against the city for sexual orientation
discrimination.12
create such a cause of action.
11
We make no determination regarding the validity of the
city’s attempt in its charter to provide a cause of action for
sex discrimination, a protection similarly provided by the
CRA. That claim is not before us. However, in keeping with
this opinion, we note that, at least in regard to governmental
immunity, a city may not alter in any respect its liability
excepted from governmental immunity by the Legislature without
express authority to do so.
12
To be certain, we emphasize that our opinion does not
address whether a city can create rights, protect against
discrimination, or create a cause of action against a
nongovernmental entity. Preemption of civil rights, by either
the constitution or the Civil Rights Act, is not addressed by
our opinion. Rather, our analysis concerns only governmental
immunity and the city’s lack of authority to create a cause of
action against a governmental entity in light of state
governmental immunity law. Accordingly, should there be any
question concerning the scope of our holding, we hold that any
10
B. A City Cannot Waive Governmental Immunity
Because the city abandoned its assertion of governmental
immunity to this Court and the law regarding the nature of
governmental immunity has been misguided for some time, we
will address the viability of plaintiff’s complaint here as it
pertains to governmental immunity.13
1. The Nature of Governmental Immunity
A governmental agency is immune from tort liability if
the governmental agency is engaged in the exercise or
discharge of a governmental function. MCL 691.1407(1). This
Court has taken steps to clarify the origin and history of
governmental immunity, most recently in Pohutski v Allen Park,
465 Mich 675; 641 NW2d 219 (2002). See also Ross v Consumers
Powers (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). The
Court does not need to reiterate that history today, but we
attempt by the city to create a cause of action against itself
in its charter for sexual orientation discrimination is
preempted by the governmental tort liability act. We have not
addressed whether the CRA preempts a city from creating
additional civil rights or protecting them through means other
than the creation of a private cause of action, nor have we
addressed whether a city can create a cause of action against
a nongovernmental defendant. Those questions are not before
us.
13
We note that the city raised governmental immunity as
a defense in the trial court, but failed to argue this issue
in the Court of Appeals or in this Court. In light of our
holding that governmental immunity is not an affirmative
defense, but a characteristic of government, failure to assert
its immunity on appeal does not preclude the Court from
considering it now.
11
take this opportunity to clarify that governmental immunity is
a characteristic of government. Canon v Thumudo, 430 Mich
326; 422 NW2d 688 (1988); Hyde v Univ of Michigan Regents, 426
Mich 223; 393 NW2d 847 (1986); McCann v Michigan, 398 Mich 65;
247 NW2d 521 (1976); Markis v Grosse Pointe Park, 180 Mich App
545; 448 NW2d 352 (1989); Ross, supra at 621, n 34; Galli v
Kirkeby, 398 Mich 527, 532, 540-541; 248 NW2d 149 (1976). As
such, plaintiff must plead her case in avoidance of immunity.
See Hanson v Mecosta Co Rd Comm’rs, 465 Mich 492, 499; 638
NW2d 396 (2002); Haliw v Sterling Heights, 464 Mich 297, 304;
627 NW2d 581 (2001); Nawrocki v Macomb Co Rd Comm, 463 Mich
143, 172, n 29; 615 NW2d 702 (2000); Ross, supra at 621, n 34.
To the extent that it holds otherwise, McCummings v Hurley
Medical Ctr, 433 Mich 404; 446 NW2d 114 (1989), is overruled.
Until 1989, it was well established in Michigan that
governmental immunity was a characteristic of government.
See, e.g., Hyde14 and Canon.15 In McCann, Justice RYAN stated
that a plaintiff must plead facts in avoidance of immunity,
14
“Unlike other claims of immunity, sovereign and
governmental immunity are not affirmative defenses, but
characteristics of government which prevent imposition of tort
liability.” Id. at 261, n 35 (citations omitted).
15
“Unlike a claim of individual immunity, sovereign and
governmental immunity are not affirmative defenses, but
characteristics of government which prevent imposition of tort
liability. A plaintiff therefore bears the burden of pleading
facts in the complaint which show that the action is not
barred by the governmental immunity act.” Id. at 344, n 10.
12
reasoning:
At first impression, it may appear appropriate
to characterize governmental immunity as an
affirmative defense. However, a careful analysis
of the doctrine as construed by this Court
indicates that, to plead a cause of action against
the state or its agencies, the plaintiff must plead
and prove facts in avoidance of immunity. In
McNair v State Highway Dep’t, 305 Mich 181, 187; 9
NW2d 52 (1943), for instance, we held that the
state’s failure to plead sovereign immunity will
not constitute a waiver because “failure to plead
the defense of sovereign immunity cannot create a
cause of action where none existed before.” In
Penix v City of St Johns, 354 Mich 259; 92 NW2d 332
(1958), we held that a complaint which contained no
averment that the defendant was engaging in a
proprietary function, and which in fact alleged
activity to which governmental immunity applied,
stated no cause of action against the municipality.
Thus, although we have on occasion referred to
governmental immunity as a defense, see [McNair];
Martinson v Alpena, 328 Mich 595, 599; 44 NW2d 148
(1950), our past treatment of the doctrine
indicates that its inapplicability is an element of
a plaintiff’s case against the state. [McCann,
supra at 77, n 1 (opinion of RYAN , J.).]
This reasoning was reiterated nearly ten years later in Ross:
In [Galli], four members of this Court held
that plaintiffs must plead facts in their complaint
in avoidance of immunity, i.e., they must allege
facts which would justify a finding that the
alleged tort does not fall within the concept of
sovereign or governmental immunity. This may be
accomplished by stating a claim which fits within
one of the statutory exceptions or pleading facts
which demonstrate that the tort occurred during the
exercise or discharge of a non-governmental or
proprietary function. See [McCann, supra at 77].
Sovereign and governmental immunity are not
affirmative defenses, but characteristics of
government which prevent imposition of tort
liability upon the governmental agency. Galli,
supra, p 541, n 5; McCann, supra, p 77, n 1. [Ross,
supra at 621, n 34.]
13
However, in McCummings, this Court departed from years of
precedent and concluded that governmental immunity is an
affirmative defense rather than a characteristic of
government. The McCummings Court reasoned:
The pronouncements in Hyde and Canon clearly
do not square with the statement in Ross that
“[s]overeign and governmental immunity from tort
liability exist only when governmental agencies are
‘engaged in the exercise or discharge of a
governmental function.’” If it takes a legislative
decree for immunity to exist, and then only under
circumstances defined by the Legislature, how can
it be said that sovereign or governmental immunity
is a “characteristic of government?”
We are persuaded that the reasoning in Ross is
correct, i.e., that immunity from tort liability
exists only in cases where the governmental agency
was engaged in the exercise or discharge of a
governmental function. The question whether a
governmental agency was engaged in a governmental
function when performing the act complained of is a
question best known to the agency and best asserted
by it. It naturally follows that plaintiffs need
not plead facts in avoidance of immunity, but that
it is incumbent on the agency to assert its
immunity as an affirmative defense. The fact that
the source of the immunity is a legislative act
makes the contention of immunity no less a matter
for assertion as an affirmative defense.
We are also persuaded that there is no sound
basis for requiring individuals, but not agencies,
to assert governmental immunity as an affirmative
defense. The source of the immunity from tort
liability is the same. MCL 691.1407. Nor do we
perceive any basis for treating the alleged
immunity of a governmental agency any differently,
for pleading purposes, from any other type of
immunity granted by law. Immunity must be
[pleaded] as an affirmative defense. [Id. at 410
14
411.][16]
See also Scheurman v Dep’t of Trans, 434 Mich 619; 465 NW2d 66
(1990); Tyrc v Michigan Veterans’ Fund, 451 Mich 129; 545 NW2d
642 (1996).
We conclude that McCummings was wrongly decided and,
returning to our prior precedent, overrule McCummings’
conclusion that governmental immunity is an affirmative
defense. MCL 691.1407(1) states, “[e]xcept as otherwise
provided in this act, a governmental agency is immune from
tort liability if [it] is engaged in the exercise or discharge
of a governmental function.” Thus, by its terms, the GTLA
provides that unless one of the five statutory exceptions
applies, a governmental agency is protected by immunity. The
presumption is, therefore, that a governmental agency is
immune and can only be subject to suit if a plaintiff’s case
falls within a statutory exception. As such, it is the
responsibility of the party seeking to impose liability on a
governmental agency to demonstrate that its case falls within
one of the exceptions.
In addition to the textual support for this conclusion in
the language of the GTLA, we note that the McCummings Court
relied on a substantively flawed analysis in reaching the
contrary opinion. First, the McCummings Court’s reliance on
16
The McCummings Court also amended MCR 2.111(F)(3) to
reflect its holding. Id. at 412.
15
Ross to support its conclusion that governmental immunity is
an affirmative defense is perplexing, given that Ross itself
described governmental immunity as a characteristic of
government. Id. at 621, n 34. Second, in support of its
analysis the McCummings Court asked, “If it takes a
legislative decree for immunity to exist, and then only under
circumstances defined by the Legislature, how can it be said
that sovereign or governmental immunity is a ‘characteristic
of government?’” Id. at 410-411.
In response, we merely observe that, historically,
Michigan recognized at common law governmental immunity for
all levels of government until this Court chose to abrogate
governmental immunity for municipalities in 1961. Williams v
Detroit, 364 Mich 231; 111 NW2d 1 (1961). In response to
Williams and the possibility that this Court would further
erode the remaining common-law governmental immunity for
counties, townships, and villages, the Legislature enacted the
Governmental Immunity Act of 1964 (GIA), thereby reinstituting
governmental immunity protection for municipalities and
preserving sovereign immunity for the state. In effect, the
GIA restored the Williams status quo ante. Pohutski, supra at
682. Thus, contrary to McCummings, it did not take a
legislative decree to create governmental immunity, but a
legislative act to preserve the doctrine that this Court had
16
historically recognized as a characteristic of government.
The McCummings suggestion that governmental immunity could not
be a characteristic of government because it was created by
legislation misapprehends the history of the Court’s actions
and the legislative response. We believe that once the
sequence of the judicial and legislative events is grasped,
the analytical flaw at the root of McCummings is apparent.17
For these reasons,18 we overrule McCummings19 to this
extent and return to the longstanding principle extant before
17
More important, notwithstanding that governmental
immunity is now established by a legislative act rather than
the common law, we hold that the Legislature is within its
inherent constitutional authority to structure governmental
immunity solely as it deems appropriate. Where the
Legislature has afforded municipalities the protection of
governmental immunity and done so in a comprehensive fashion
as it has done in the GTLA, the governmental immunity as set
forth in the GTLA is a characteristic of government.
18
We note that requiring the plaintiff to bear the burden
of pleading in avoidance of governmental immunity is also
consistent with a central purpose of governmental immunity,
that is, to prevent a drain on the state’s financial
resources, by avoiding even the expense of having to contest
on the merits any claim barred by governmental immunity.
19
In overruling McCummings, the Court is mindful of the
doctrine of stare decisis. Stare decisis, however, is not
meant to be mechanically applied to prevent the Court from
overruling earlier erroneous decisions. Robinson v Detroit,
462 Mich 439, 463; 613 NW2d 307 (2000). Rather, stare decisis
is a “principle of policy” not “an inexorable command,” and
the Court is not constrained to follow precedent when
governing decisions are badly reasoned. Id. at 464. We
conclude that it is appropriate to overrule McCummings despite
stare decisis because that case was both badly reasoned and
inconsistent with a more intrinsically sound prior doctrine
and the actual text of the GTLA.
17
McCummings that, governmental immunity being a characteristic
of government, a party suing a unit of government must plead
in avoidance of governmental immunity.20
2. Plaintiff’s Complaint
A plaintiff pleads in avoidance of governmental immunity
by stating a claim that fits within a statutory exception or
by pleading facts that demonstrate that the alleged tort
occurred during the exercise or discharge of a nongovernmental
or proprietary function. McCann, supra at 77. Plaintiff did
neither in this case.
Governmental immunity protects the conduct of
governmental agencies, which include two types of actors: the
state and political subdivisions. MCL 691.1401(d). The
Detroit Police Department, as a political subdivision, MCL
691.1401(b), is a “governmental agency” for purposes of
20
We apply this holding to plaintiff’s sexual orientation
claim, but remand to the Court of Appeals for reconsideration
of plaintiff’s other claims, as indicated previously. See n
1. With the exception of her sexual orientation
discrimination claim against the city, which is disposed of in
this opinion, plaintiff shall be allowed to amend her
complaint to attempt to plead in avoidance of governmental
immunity in regard to her other claims.
As to all other cases pending that involve governmental
immunity, plaintiffs shall be allowed to amend their
complaints in order to plead in avoidance of governmental
immunity. If a case is pending on appeal and governmental
immunity is a controlling issue, the Court of Appeals may
remand to allow amendment. As MCR 2.111(F)(3) encompasses
other species of “immunity granted by law,” but does not
explicitly refer to governmental immunity, it is not necessary
to amend the court rule because of our holding.
18
governmental immunity. MCL 691.1401(d). As such, absent the
applicability of a statutory exception, it is immune from tort
liability if the tort claims arise from the department’s
exercise or discharge of a governmental function. MCL
691.1407(1). “‘Governmental function’ is an activity that is
expressly or impliedly mandated or authorized by constitution,
statute, local charter or ordinance, or other law.” MCL
691.1401(f). It is well established in Michigan that the
management, operation, and control of a police department is
a governmental function. Moore v Detroit, 128 Mich App 491,
496-497; 340 NW2d 640 (1983); Graves v Wayne Co, 124 Mich App
36, 40-41; 333 NW2d 740 (1983).
Plaintiff’s claims regarding the police department all
involve decisions that are part and parcel of the department’s
discharge of governmental functions. The decisions at issue
in this case are job reassignment, distribution of vacation
time, and determining the extent to which department officers
are involved in investigations. These are ordinary day-to-day
decisions that the police department makes in the course of
discharging its governmental function. As such, the police
department’s conduct is within the scope of § 7. Thus,
plaintiff’s claim is barred unless it falls within one of the
statutory exceptions. As discussed above, plaintiff’s sexual
orientation discrimination claim falls under no immunity
exception.
19
Further, plaintiff’s complaint makes no mention of
governmental immunity with respect to any of her claims. In
fact, it was not until the city moved for summary disposition
that plaintiff claimed that her action was not barred by
governmental immunity. Even then, however, plaintiff’s
responsive pleading went only to her intentional infliction of
emotional distress claim, which she abandoned by failing to
raise it in the Court of Appeals.
Because plaintiff failed to state a claim that fits
within a statutory exception or plead facts that demonstrate
that the alleged tort occurred during the exercise or
discharge of a nongovernmental or proprietary function, we
conclude that plaintiff did not plead and could not plead in
avoidance of governmental immunity and that her sexual
orientation discrimination claim should have been dismissed on
the city’s motion for summary disposition.
IV. The Dissents
Justices Weaver and Cavanagh criticize our opinion
primarily on the ground that our decision is allegedly reached
without the benefit of briefing or argument. This argument
camouflages their reluctance to address the core legal
questions at hand.
First, concerning McCummings, additional briefing would
not assist this Court in addressing this question of law. All
the relevant argument is embodied in the years of case law on
20
the nature of governmental immunity. Of that case law,
McCummings is an aberration; its doctrine stands alone in our
jurisprudential history in holding that governmental immunity
is an affirmative defense and not a characteristic of
government. In this case, we addressed which was
aberrational: McCummings or the remaining eighty years of case
law. We have concluded that McCummings was the aberration.
Regarding the dissenters’ assertion that the issue of the
charter being preempted by the GTLA was not briefed or raised
by the parties, we note that the issue was squarely in front
of the parties. The central question in this case was whether
the charter’s purported creation of a cause of action for
sexual orientation discrimination is preempted by state law.
The governmental tort liability act is a state law. If the
charter creates a cause of action for sexual orientation
discrimination, then it conflicts with the state law of
governmental immunity. Questioning by several members of
this Court at oral argument specifically raised the
governmental immunity issue.21 We absolutely oppose the
21
Justice TAYLOR : . . . I’ve got a question which
is on a little different track. Pompey and Holmes
in their most elementary reading give private
causes of action for civil rights problems. They,
however, give that cause of action to one citizen
against another. One of the old really venerable
principles of law is of course that the government
can only be sued when it allows itself to be sued.
Why is it not the case that Pompey and Holmes could
21
dissenters’ apparent position that although a controlling
legal issue is squarely before this Court, in this case
preemption by state law, the parties’ failure or refusal to
offer correct solutions to the issue limits this Court’s
ability to probe for and provide the correct solution. Such
an approach would seriously curtail the ability of this Court
to function effectively and, interestingly, given the
dissenters’ position, actually make oral argument a moot
practice.
To be certain, we emphasize that, contrary to Justice
be left entirely intact and a court hold that
whatever they said, they never abrogated the
immunity that a government has that it can only
eliminate expressly, that is the ability to not be
sued. Said better, why wouldn’t it be a sensible
thing for a court to hold that whatever Pompey and
Holmes said, they never gave authority to sue a
city or any other kind of government, and there is
nowhere in the statutes or the constitution where
governmental immunity in this regard has been
abrogated. And we always have to read our law, I
think, our case law is that we always tilt in the
direction of immunity.
* * *
Justice YOUNG : Why do you read this provision
[CRA] as abrogating governmental immunity? . . . .
* * *
Justice MARKMAN : But Justice T A Y L O R ’s
question as I understand is a more generic question
. . . It’s whether the municipality can create any
cause of action that will burden the sovereign to a
greater extent.
22
CAVANAGH ’s allegation, we have not disregarded “the
foundational principles of our adversarial system of
adjudication.” Post at 1. Rather, addressing a controlling
legal issue despite the failure of the parties to properly
frame the issue is a well understood judicial principle. See
Legal Services Corp v Velazquez, 531 US 533, 549, 558; 121 S
Ct 1043; 149 L Ed 2d 63 (2001) (majority and dissent both
stating that whether to address an issue not briefed or
contested by the parties is left to discretion of the Court);
Seattle v McCready, 123 Wash 2d 260, 269; 868 P2d 134 (1994)
(indicating that the court “is not constrained by the issues
as framed by the parties if the parties ignore a
constitutional mandate, a statutory commandment, or an
established precedent”). In fact, all three dissenters
recently signed or concurred in an opinion where this Court
decided an issue not raised or briefed by any party.
Federated Publications, Inc v Lansing, 467 Mich ___; ___ NW2d
___ (2002) (resolving a standard of review issue).
Accordingly, we find no merit in the dissents’ criticism of
our opinion on the ground that the parties did not brief the
issue themselves and interpret their dissenting statements as
an indication of their reluctance to address the core legal
questions before us.
In his dissent, Justice CAVANAGH has fired his standard
shot: this Court overrules cases capriciously. Now he has
23
added a fusillade, suggesting that the majority “tees up”
issues it wants the parties to brief, and somewhat
inconsistently, that the majority decides matters without
briefing by the parties. While we recognize that following
the law as enacted by our Legislature is sometimes at odds
with our dissenting colleague’s personal policy preferences,
our constitutional duty demands that we follow the rule of
law. While Justice CAVANAGH chooses to characterize his policy
frustrations as the majority’s judicial disobedience, neither
the law, this Court’s history, nor Justice CAVANAGH ’s own
judicial history supports his characterization.
On the so-called briefing issue, we think Justice CAVANAGH
wants it both ways. In this case, where the controlling legal
issue was discovered after the parties had submitted their
briefs, Justice CAVANAGH complains. In other cases, when the
Court has believed there might be a controlling issue on which
it wanted the benefit of the parties’ briefing, Justice
CAVANAGH also complains. See, e.g., Robinson v Detroit, 462
Mich 439; 613 NW2d 307 (2000) (a case cited in his footnote
9), wherein Justice CAVANAGH dissented, criticizing the
majority for flagging in its grant order a legal issue the
Court specifically wanted briefed by the parties. 461 Mich
1201.22
22
For example, Justice CAVANAGH cites People v Hardiman,
465 Mich 902; 638 NW2d 744 (2001), as an example of this Court
24
Apart from Justice CAVANAGH ’s desire to have it both ways
on the issue of party “briefing,” no one can seriously
question the right of this Court to set forth the law as
clearly as it can, irrespective whether the parties assist the
Court in fulfilling its constitutional function. The
jurisprudence of Michigan cannot be, and is not, dependent
upon whether individual parties accurately identify and
elucidate controlling legal questions.
Concerning Justice CAVANAGH ’s habitual assertion that
this Court casually disregards stare decisis, we note that
Justice CAVANAGH himself is no stranger to overruling
precedent. See, e.g., DiFranco v Pickard, 427 Mich 32; 398
NW2d 896 (1986), overruling Cassidy v McGovern, 415 Mich 483;
asking the parties if a precedent should be overruled, People
v Atley, 392 Mich 298; 220 NW2d 465 (1974). We note that
Justice CAVANAGH agreed that Atley should be overruled in his
partial concurrence in Hardiman. 465 Mich 417, 432; 646 NW2d
744 (2002).
Similarly, Justice CAVANAGH criticizes this Court for
asking the parties to brief whether the federal subjective
entrapment test should be adopted in Michigan in our grant
order in People v Johnson, ___ Mich ____; ___ NW2d ___ (2002).
465 Mich 911 (2001). However, when Justice CAVANAGH was in the
majority, the Court asked the parties to do the very same
thing in People v Jamieson, 436 Mich 61; 461 NW2d 884 (1990).
433 Mich 1226 (1989).
Finally, we note that in regard to the majority deciding
issues not briefed by the parties, Justice CAVANAGH recently
authored the opinion in Stanton v Battle Creek, 466 Mich ___;
___ NW2d ___ (2002), in which this Court decided an issue that
was never briefed by the parties. That is, applying the
common meaning of “motor vehicle” to determine whether the
term encompasses a forklift.
25
330 NW2d 22 (1982); AFSCME v Highland Park Bd of Ed, 457 Mich
74; 577 NW2d 79 (1998), overruling Ensley v Associated
Terminals, Inc, 304 Mich 522; 8 NW2d 161 (1943); Haske v
Transport Leasing, Inc, 455 Mich 628, 652; 566 NW2d 896
(1997), overruling Rea v Regency Olds/Mazda/Volvo, 450 Mich
1201; 536 NW2d 542 (1995); W T Andrew Co v Mid-State Surety,
450 Mich 655; 545 NW2d 351 (1996), overruling Weinberg v Univ
of Michigan Regents, 97 Mich 246; 56 NW 605 (1893); People v
Kevorkian, 447 Mich 436; 527 NW2d 714 (1994), overruling
People v Roberts, 211 Mich 187; 178 NW 690 (1920); In re
Hatcher, 443 Mich 426; 505 NW2d 834 (1993), overruling Fritts
v Krugh, 354 Mich 97; 92 NW2d 604 (1958); Mead v Batchlor, 435
Mich 480; 460 NW2d 493 (1990), overruling (to the extent
inconsistent) Sword v Sword, 399 Mich 367; 249 NW2d 88 (1976);
Albro v Allen, 434 Mich 271; 454 NW2d 85 (1990), overruling
unidentified prior Supreme Court cases; Schwartz v Flint, 426
Mich 295; 395 NW2d 678 (1986), overruling Ed Zaagman, Inc v
Kentwood, 406 Mich 137; 277 NW2d 475 (1979); McMillan v State
Hwy Comm, 426 Mich 46; 393 NW2d 332 (1986), overruling Cramer
v Detroit Edison Co, 296 Mich 662; 296 NW 831 (1941), and
Dawson v Postal Telegraph-Cable Co, 265 Mich 139; 251 NW 352
(1933).
More important, we emphasize that this stout defense of
stare decisis by Justices CAVANAGH and KELLY is their standard
26
argument when they are unhappy with the result of an opinion.
See Sington v Chrysler Corp, 467 Mich ___; ___ NW2d ___ (2002)
(KELLY , J., dissenting). Their charge is that the new
composition of this Court is the explanatory variable for a
deteriorating respect for precedent. Sington provides the
latest example of their argument, but it also demonstrates how
statistically insignificant are the occasions when this Court
(as opposed to its pre-1999 predecessor) has overturned its
prior cases.
In Sington, Justice KELLY states that, in the five years
from 1993 to 1997, twelve cases were overturned by this Court
whereas in the four and a half years from 1998 to July, 2002,
twenty-two cases were overturned. During the 1993 to 1997
period, the Court overruled precedent at a rate of about one
twelfth of one percent (12 of 13,682 cases disposed of), while
during the 1998 to 2002 period, the Court overruled precedent
at about a rate of one-fifth of one percent (22 of 11,190).
The contrast is one-twelfth of one percent in the Court’s
“good ole days” versus one-fifth of one percent in the new
world of the current Court, even counting against the current
Court the six cases decided in 1998 before this majority came
into existence. Viewed in this context, no neutral
commentator would conclude that the majority has a complete
disregard for stare decisis, but that the dissenters are
strict adherents. In other words, Justice KELLY and Justice
27
CAVANAGH ’s records do not reflect a previous hard line
adherence to stare decisis and their dissatisfaction is not
with our alleged lack of adherence to stare decisis, but in
their inability to reach the policy choice they prefer given
the majority’s commitment to follow the laws enacted by our
Legislature.
I think it is fair to say that the cases Justice CAVANAGH
cites in footnote 9 more probably reveal his desire that this
Court never address a controlling legal issue. Yet, we
welcome Justice CAVANAGH ’s newly announced repudiation of
“judicial activism in any form.” We question whether his new
judicial philosophy includes the obligation to respect and
follow the law, even where it is inconvenient to one’s policy
preferences or even when the parties fail to bring the
controlling law to the Court’s attention.
V. Conclusion
We hold that regardless whether the charter attempted to
create a private cause of action against the city for sexual
orientation discrimination, it could not do so without
contravening governmental immunity law. Accordingly, this
Court is without authority to act on plaintiff’s request to
recognize such a cause of action.
In addition, we hold that, governmental immunity being a
characteristic of government, a party suing a unit of
government must plead in avoidance of governmental immunity.
28
We overrule McCummings to the extent it holds otherwise.
Plaintiff did not plead in avoidance of governmental
immunity in her complaint. Accordingly, the Court of Appeals
holding is reversed, and the trial court’s order for summary
disposition in favor of defendant is reinstated with regard to
the sexual orientation discrimination claim. Because the city
did not appeal the Court of Appeals resolution of the sex
discrimination claim, we remand that issue to the Court of
Appeals for reconsideration in light of this opinion.
CORRIGAN , C.J., and TAYLOR and MARKMAN , JJ., concurred with
YOUNG , J.
29
S T A T E O F M I C H I G A N
SUPREME COURT
LINDA MACK,
Plaintiff-Appellee,
v No. 118468
THE CITY OF DETROIT,
a Michigan Municipal Corporation,
Defendant-Appellant.
___________________________________
CAVANAGH, J. (dissenting).
I respectfully disagree with the majority’s conclusion
that a cause of action created by defendant’s city charter and
brought against the city of Detroit would contravene the
governmental tort liability act (GTLA), MCL 691.1407. I
further object to the majority’s assertion that plaintiff must
plead in avoidance of governmental immunity.
In reaching its holding, the majority disregards the
foundational principles of our adversarial system of
adjudication. As protectors of justice, we refrain from
deciding issues without giving each party a full and fair
opportunity to be heard. But not for this concern, the
judicially created doctrine of standing would be discarded, as
it ensures “concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends
for illumination . . . .” Baker v Carr, 369 US 186, 204; 82
S Ct 691; 7 L Ed 2d 663 (1962) (Brennan, J.). However, the
majority has disregarded such considerations, misconstruing
the proper scope of its authority, by making dispositive an
issue never argued or briefed by the parties. Neither of the
parties has had the benefit of sharing with this Court their
thoughts on the effect of the tort immunity act on this case,
though the implications of the majority’s holding are vast.
Never before have I witnessed such overreaching conduct from
members of this Court.
I. THE GTLA DOES NOT NULLIFY PRIVATE ACTIONS CREATED BY A CITY
In the majority’s haste to apply the GTLA, it fails to
adequately consider several foundational issues. First, the
majority neglects to properly address a dispositive
preliminary issue: is an action alleging a violation of a city
charter a tort? Neither plaintiff nor defendant considered
this claim a tort. Further, because a charter is a city’s
“constitution,” Bivens v Grand Rapids, 443 Mich 391, 401; 505
NW2d 239 (1993), this action does not resemble our typical
understanding of a tort. It is far from clear that the
2
Legislature intended that the GTLA preclude such actions, and
the majority’s reference to Donajkowski v Alpena Power Co, 460
Mich 243, 247; 569 NW2d 574 (1999), which proclaimed in the
most cursory fashion that a statutory violation sounds in
tort, does not aid in this determination. At the very least,
briefing and argument on this issue could have clarified the
nature of the debate.
Moreover, the majority’s claim that the scope of the GTLA
nullifies any attempt by a city to create a cause of action
that could be brought against a governmental agency ignores
the fact that the tort immunity act does not bar gross
negligence claims against government officers, MCL
691.1407(2), nor does it prohibit actions brought against
government entities for injuries arising out of actions not
related to the discharge of a “government function.” MCL
691.1407(1). Thus, even if one concludes that plaintiff’s
claim against the city properly sounds in negligence, a cause
of action created by the Detroit charter could be brought
under the theory of gross negligence against government
officers or against the city when not engaged in a government
function. Therefore, the majority errs in concluding that any
action created by a city’s charter that could be brought
against a governmental entity would violate the GTLA.
3
II. THE CHARTER CREATES A CAUSE OF ACTION
Having demonstrated why the issue is not “irrelevant,” in
spite of the majority’s assertions otherwise, I believe it is
necessary to clarify that the plain language of the charter
creates a cause of action.1
The Detroit citizenry clearly has the right to be free
from discrimination on the basis of, inter alia, sexual
orientation:
The city has an affirmative duty to secure the
equal protection of the law for each person and to
insure equality of opportunity for all persons. No
person shall be denied the enjoyment of civil or
political rights or be discriminated against in the
exercise thereof because of race, color, creed,
national origin, age, handicap, sex, or sexual
orientation. [Charter, Declaration of Rights,
§ 2.]
Defendant city of Detroit, however, claims the plain language
of the charter prescribes an exclusive administrative remedy
for this broadly pronounced right, prohibiting enforcement by
its citizenry:
The city may enforce this declaration of
rights and other rights retained by the people.
[Id. at § 8.]
Defendant’s cursory assertion that this provision prohibits
individual enforcement of the rights granted in the charter
1
See Detroit v Walker, 445 Mich 682, 691; 520 NW2d 135
(1994) (“The prevailing rules regarding statutory construction
are well established and extend to the construction of home
rule charters.”)
4
results from an erroneous interpretation of the plain language
of the text.2 Certainly this provision grants the city the
authority to enforce the rights proclaimed in the charter.
However, this grant of authority is not exclusive. The
drafters gave the city the power to enforce the declaration of
rights and other rights retained by the people. If one
accepts defendant’s claim that this text gives the city the
exclusive authority to enforce the declaration of rights, the
drafters also would have granted to the city the exclusive
authority to enforce “other rights retained by the people.”
In other words, with the adoption of the charter as
constructed by defendant, the people of Detroit purportedly
stripped themselves of their ability to bring civil actions to
enforce any “other right.” Even if the city had the authority
to enforce these rights, the text simply does not support such
an unprecedented grant of authority.
Further, the drafters used “may,” not “shall,” in this
provision. “May” suggests that one “is permitted to” or has
discretion. Black’s Law Dictionary (7th ed). If the drafters
had intended to grant the city the exclusive authority to
enforce the charter, they certainly would have used “shall,”
mandating such action. Id. (“shall” implies a duty or
2
This Court has certainly consistently eschewed any
deviation from our “textualist” approach.
5
requirement). Moreover, the citizens of Detroit surely did
not intend to grant the city the discretionary and exclusive
power to enforce both the rights under the charter and all
others retained by the people. Thus, by use of the permissive
and discretionary term, the drafters indicated an intention to
permit enforcement mechanisms beyond those powers granted to
the city. Any other interpretation ignores the text of the
charter.
Reference to the city’s ordinances supports this
interpretation of the charter.3 In 1988, the city
deliberately clarified that those who experienced
discrimination on the basis of AIDS and conditions related to
AIDS could bring a civil action to enforce their rights
granted by the city. Chapter 27, article 7 prohibits such
discrimination in the employment, housing, business, and
educational arenas. See generally, §§ 27-7-1 to 27-7-90. In
particular, the charter prohibits discrimination in the
provision of public facilities or services. Section 27-7-7.
The enforcement provision includes the following subsection:
Any aggrieved person may enforce the
provisions of this article by means of a civil
action. [Section 27-7-10(a).]
3
Brady v Detroit, 353 Mich 243, 248; 91 NW2d 257 (1958)
(“Provisions pertaining to a given subject matter must be
construed together, and if possible harmonized. It may not be
assumed that the adoption of conflicting provisions was
intended.”)
6
Clearly, the city intended to create a civil cause of action
for the victims of such discriminatory practices. Assuming
drafters of the ordinance did not intend to contravene the
charter, which we must, we may only conclude that the
authority granted to the city in the declaration of rights,
§ 8, did not give the city the sole right to enforce the
charter.
Although defendant correctly referenced ordinance 27-7
10, it draws the wrong conclusion. As noted, article 7 of
chapter 27 was enacted in 1988. Detroit Ordinance § 24-88,
July 14, 1988; see also Detroit Ordinance § 33-88, September
21, 1988. In contrast, the enabling ordinances at issue here
were enacted in 1979. Detroit Ordinance § 303-H, January 24,
1979. It is entirely reasonable to conclude that the city
simply intended to clarify that a private cause of action
could be had under the charter when enacting § 27-7-10, as had
been authorized implicitly by the charter.
The inclusion of § 27-2-10 was particularly appropriate
because of the circuit courts’ treatment of similar claims.
In this case, for example, the court noted that this issue had
arisen in the past. Without direction from the Court of
Appeals, the trial court refused to recognize a cause of
action. Certainly an ordinance or charter amendment that made
clear that a cause of action existed for a violation of any
7
right provided by the charter would have made this exercise
even simpler. However, its absence cannot force the
conclusion that an action only for AIDS-related discrimination
was intended. In this age of the overly rhetorical and often
vacuous concern over “special rights,” it is unreasonable to
presume the charter permits individual actions for AIDS
related discrimination, but not for the other forms of
discrimination enumerated in the declaration of rights, § 2.
Therefore, though we often rely on the maxim that the
inclusion of one term implies the exclusion of another, that
inference loses force where the circumstances indicate
otherwise.4 In this case, the circumstances suggest the
opposite, i.e., that the express provision of a cause of
action for AIDS-related discrimination only clarifies that the
charter permitted such actions for all violations.
Additional support for this conclusion can be found in
the drafters’ decision to include two provisions that suggest
that Detroit’s citizens retained the right to sue for
violations of the charter. The declaration of rights clearly
states:
The enumeration of certain rights in this
4
See Luttrell v Dep’t of Corrections, 421 Mich 93, 102;
365 NW2d 74 (1984) (holding that “the effect of the rule
‘expressio unius est exclusio alterius,’ while a valid maxim,
[may be] so much at odds with the other [rules of
construction] that reason dictates it [may be] inapplicable”).
8
Charter shall not be construed to deny or disparage
others retained by the people. [Declaration of
Rights, § 7.]
In that same vein, the charter’s chapter on human rights ends
with the following proclamation:
This chapter shall not be construed to
diminish the right of any party to direct any
immediate legal or equitable remedies in any court
or other tribunal. [Section 7-1007.]
This evidence indicates an intention to create a scheme
whereby the administrative remedies supplement an individual’s
ability to bring a private cause of action.5 In light of this
analysis, a rational interpreter must conclude that neither
the drafters nor the citizenry intended to grant the city
exclusive, discretionary authority to remedy violations of the
rights granted in the charter. Therefore, I would hold that
the charter does, in fact, create a damages action for
discrimination based on sexual orientation.
III. IMMUNITY AS AN AFFIRMATIVE DEFENSE
The majority has opportunistically seized on the
5
The charter’s preamble provides additional support for
the conclusion that the charter created both rights and
remedies to which the city itself must adhere:
We, the people of Detroit, do ordain and
establish this Charter for the governance of our
city, as it addresses the programs, services and
needs of our citizens; . . . pledging that all our
officials, elected and appointed, will be held
accountable to fulfill the intent of this
Charter . . . . [Emphasis added.]
9
circumstances presented in this case to overrule decades of
sound precedent and unsettle an area of law that had finally
achieved some stability. In proclaiming that plaintiff must
plead in avoidance of immunity, the majority ignores not only
the value of precedent, but also the sound principles on which
McCummings v Hurley Medical Ctr, 433 Mich 404; 446 NW2d 114
(1989), was based. In McCummings, the Court held that the
entity claiming immunity must affirmatively plead the defense.
This unanimous pronouncement was based, in part, on the
doctrine’s statutory foundation. No longer could we solely
rely on the doctrine’s common-law history to determine the
parameters of the defense.6 Therefore, though the judiciary
traditionally considered sovereignty a “characteristic” of
government, this understanding was no longer dispositive of
procedural or substantive issues once the Legislature codified
the doctrine. This view is no less relevant today, and the
majority’s attempt to proclaim otherwise by once again relying
on outdated jargon adds little to our understanding of
governmental immunity.
Having identified a flaw in the majority’s deceptively
useful rationale (i.e., because the Court has declared
6
See Const 1963, art 3, sec 7 (“The common law and the
statute laws now in force, not repugnant to this constitution,
shall remain in force until they expire by their own
limitations, or are changed, amended or repealed.”)
10
immunity a “characteristic” in the past, it is not an
affirmative defense), we must now turn to its substantive
conclusions. Does the governmental immunity statute require
that plaintiffs plead in avoidance of immunity? MCL 691.
1407(1) provides:
Except as otherwise provided in this act, a
government agency is immune from tort liability if
[it] is engaged in the exercise or discharge of a
governmental function.
Although this section makes clear that governmental entities
may claim immunity when performing a governmental function, it
does not, as the majority claims, create a textual presumption
in favor of the government. Rather, the statute identifies
the scope of immunity. The procedural duty to plead is simply
not mentioned, and as such, the text–as it pertains to
pleading–is silent.
Building on this Court’s pronouncement in Ross v
Consumers Power (On Rehearing), 420 Mich 567; 333 NW2d 641
(1984), which clarified that the Legislature intended that
immunity from tort liability exist only when an entity was
engaged in a governmental function, the McCummings Court
arrived at the most logical conclusion, i.e., that “[t]he
question whether a governmental agency was engaged in a
governmental function when performing the act complained of is
a question best known to the agency and best asserted by it.”
11
Id. at 411.7 Furthermore, the McCummings Court correctly
noted that no valid reason to exempt agencies from the
pleading burden placed upon individuals could be discerned.
The source of immunity for both government bodies and
individuals is grounded in § 1407. Because the text makes no
distinction in this regard, a prudent observer will agree that
the majority’s reversal is based on its own policy
considerations, which ignore both the intent of the
Legislature and the judicially sound doctrine of stare
decisis. This is particularly true because, though the
Legislature revised the GTLA after McCummings in 1986, 1996,
and 1999, it failed to amend the statute to alter the rule
that placed the burden of pleading on the government.
Unfortunately, the majority dismisses this legislative
acquiescence, an indicator of its intent.
In sum, the fact remains that governmental immunity is a
defense to liability. Although the majority erroneously
declares that plaintiff must plead in avoidance of the
doctrine, the government continues to bear the onus of proof.
If a trial court finds the parties have equally carried the
7
The Court in Ross undertook an almost impossible task,
clarifying more than a century’s worth of judicial and
legislative commentary on governmental immunity. It did not,
however, examine on which party the burden of pleading should
fall. Any reference to that burden in Ross does not, contrary
to the majority’s assertions, diminish the foundation on which
the Court in McCummings relied.
12
burden of production concerning the applicability of the
doctrine, the court must find for the plaintiff. Any
indication to the contrary in the majority’s opinion may only
be referenced as dicta, as the issue this case presents is
limited to the sufficiency of the pleadings.
Shockingly, without the issue being contemplated, let
alone raised by the parties, the majority concludes that
plaintiff’s claim should have been dismissed for its failure
to plead in avoidance of government immunity. Slip op at 2,
21-22, 26. However, our precedent and court rules had
expressly placed this burden on the government. I object to
the majority’s application of its holding, which placed the
burden of prescience on plaintiff.
IV. PRINCIPLES OF THE ADVERSARY SYSTEM
The majority’s disingenuous response to the dissenting
opinions requires clarification. The majority claims that any
briefing on the propriety of the rule in McCummings would be
a waste of time because “additional briefing would not assist
this Court in addressing this question of law.” Slip op at
22. This comment flies in the face of the foundations of our
adversarial system, in which the parties frame the issues and
arguments for a (presumably) passive tribunal. The
adversarial system ensures the best presentation of arguments
and theories because each party is motivated to succeed.
13
Moreover, the adversarial system attempts to ensure that an
active judge refrain from allowing a preliminary understanding
of the issues to improperly influence the final decision.
This allows the judiciary to keep an open mind until the
proofs and arguments have been adequately submitted.8 In
spite of these underlying concerns, the majority today claims
that the benefits of full briefing are simply a formality that
can be discarded without care. The majority fails to
comprehend how the skilled advocates in this case could have
added anything insightful in the debate over the proper
interpretation of a century’s worth of precedent. Whatever
its motivation, the majority undermines the foundations of our
adversarial system.
The majority also implies that the “central question in
this case was whether the charter’s purported creation of a
cause of action for sexual orientation discrimination is
preempted” by the GTLA. Slip op at 23. However, the extent
of the parties’ preemption briefing focused solely on the
relevance of the Civil Rights Act vis-à-vis the charter
created cause of action. Moreover, the questions by this
Court during oral argument do not substitute for proper
8
See Hazard, Ethics in the Practice of Law, pp 120-123,
126-129, 131-135, cited in Tidmarsh & Trangsrud, Complex
Litigation and the Adversary System, (New York: Foundation
Press, 1988).
14
briefing, but only illustrate how the Court pursues its own
end in a fashion unanticipated by the parties.
While occasionally a court may find it necessary to
resolve an issue not briefed by the parties, the frequency
with which the majority undertakes such activist endeavors
demonstrates its desire to arrive at its destination.9
9
The majority frequently engages in at least three
distinct types of activist behavior: overruling precedent; in
grants of leave, directing parties to address issues not
initially raised or briefed by the parties in their
application for leave to appeal; and, as in this case, holding
dispositive issues neither raised nor argued before this
Court.
To review instances where this majority has overruled
precedent, see, e.g., People v Cornell, 466 Mich 335; ___ NW2d
___ (2002); Koontz v Ameritech Svcs, Inc, 466 Mich 304; 645
NW2d 34 (2002); Robertson v DaimlerChrysler Corp, 465 Mich
732; 641 NW2d 567 (2002); Pohutski v City of Allen Park, 465
Mich 675; 641 NW2d 219 (2002); Hanson v Mecosta Co Rd Comm'rs,
465 Mich 492; 638 NW2d 396 (2002); Brown v Genesee Co Bd of
Cmmr's, 464 Mich 430; 628 NW2d 471 (2001); People v Glass, 464
Mich 266; 627 NW2d 261 (2001); Nawrocki v Macomb Co Rd Comm,
463 Mich 143; 615 NW2d 702 (2000); Mudel v Great Atlantic &
Pacific Tea Co, 462 Mich 691; 614 NW2d 607 (2000); Stitt v
Holland Abundant Life Fellowship, 462 Mich 591; 614 NW2d 88
(2000); Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000);
People v Kazmierczak, 461 Mich 411; 605 NW2d 667 (2000);
McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999); People
v Lukity, 460 Mich 484; 596 NW2d 607 (1999); Ritchie-Gamester
v Berkley, 461 Mich 73; 597 NW2d 517 (1999).
For examples of grant orders which directed the parties’
to address issues the majority found relevant, see People v
Glass, 461 Mich 1005; 610 NW2d 872 (2000) (directing the
parties to address whether the prosecutor’s actions removed
the taint of alleged racial discrimination in the grand jury
selection process, whether MCR 6.112 conflicted with MCL
767.29, and whether the Court properly exercised its authority
over criminal procedure). See also People v Hardiman, 465
(continued...)
15
(...continued)
Mich 902; 638 NW2d 744 (2001) (directing the parties to brief
whether “the inference upon inference rule of People v Atley,
392 Mich 298 (1974), was violated under the facts . . . and
whether that decision should be overruled”); People v Johnson,
465 Mich 911; 638 NW2d 747 (2001) (directing the parties to
brief whether this Court should adopt the federal subjective
entrapment defense); People v Reese, 465 Mich 851; 631 NW2d
343 (2001) (directing the parties to “specifically address
whether MCL 768.32 prevents this Court from adopting the
federal model for necessarily lesser included offense
instructions and, if it does, whether such prohibition
violates Const 1963, art 6, § 5. In all other respects, leave
to appeal is denied.”); People v Lett, 463 Mich 939, 620 NW2d
855 (2000) (rejecting the prosecutor’s concession concerning
the constitutional nature of the error and directing the
parties to address whether the trial court’s declaration of a
mistrial was based on manifest necessity; further ordering the
parties to address six additional issues, including whether
the defendant’s claim was forfeited or waived and the extent
to which the law might be clarified concerning presence of
manifest necessity).
I thank the majority for pointing out that I object both
when the parties have not had an opportunity to argue or brief
an issue, and when the majority has forced the disposition of
an issue not raised by either party. To clarify, it’s not that
I wish to have “it both ways,” but that I object to judicial
activism in any form.
Further, the majority accurately documents that,
throughout my twenty-year tenure on this Court, I have, on
occasion, found it necessary to overrule precedent or request
briefing on an issue. The majority also clarifies that policy
considerations may influence one’s understanding of the
appropriate method by which to apply or interpret the law.
With this I do not disagree. Neither the majority nor I can
escape the fact that, as judges, we are not computers, but
human beings, doing our best to apply the law in an unbiased
fashion, in accord with our constitutional mandate and within
the strictures of the adversary system. Whether in the
majority or the dissent, every justice must recognize and
appropriately set aside such considerations in the execution
of their duties under the law.
16
V. CONCLUSION
Because a majority of this Court erroneously refuses to
recognize that the charter creates a cause of action and that
plaintiff need not plead in avoidance of immunity, there is no
need to thoroughly analyze the remaining issues. Suffice it
to say, I would hold that a municipality has the power, on the
basis of the police powers inherent in its home rule
authority, to protect its citizens from discrimination. No
state law preempts this protection, and governmental immunity
does not bar an action based not on a theory of tort
liability, but on a violation of the organic law of a city
granting its citizens fundamental rights. Therefore, for the
reasons noted, I would affirm the judgment of the Court of
Appeals.
KELLY , J., concurred with CAVANAGH , J.
17
S T A T E O F M I C H I G A N
SUPREME COURT
LINDA MACK,
Plaintiff-Appellee,
v No. 118468
THE CITY OF DETROIT,
a Michigan Municipal Corporation,
Defendant-Appellant.
_________________________
WEAVER, J. (dissenting)
I dissent from the majority decision.
The majority has decided important issues involving
governmental immunity that were not raised or briefed by the
parties and that are very significant to the people of Detroit
and all the people of Michigan. The majority should have
insured that it had briefing and heard argument on these
issues before deciding them.
A
Without the benefit of briefing or argument, the majority
overrules settled precedent1 to hold that governmental
immunity cannot be waived because it is a characteristic of
government. In McCummings v Hurley Medical Ctr, 433 Mich 404,
411; 466 NW2d 114 (1989), this Court held that governmental
immunity must be pleaded as an affirmative defense. The
majority overrules McCummings and holds that immunity is an
unwaivable characteristic of government. The parties did not
raise or address in any court whether governmental immunity is
a characteristic of government or an affirmative defense.2
While the general concept of governmental immunity was
alluded to in questioning during oral argument before this
Court, the questioning did not reference the concept of
immunity as a characteristic of government and did not
foreshadow an intent to reconsider McCummings. The majority’s
decision to reach out and overrule a case that was not raised,
1
The majority’s assertion that McCummings is an
“aberration” is their view. However, it was signed by six
justices with Justice Griffin concurring separately and has
been the law for fourteen years. See, e.g. Scheurman v Dep’t
of Trans, 434 Mich 619; 456 NW2d 66 (1990), and Tyrc v
Michigan Veterns’ Fund, 451 Mich 129; 545 NW2d 642 (1996).
2
Although the city raised governmental immunity as an
affirmative defense at the trial court level, the city never
specifically addressed immunity relative to plaintiff’s
charter-based claim of sexual orientation discrimination at
any level. The only briefing regarding immunity in the trial
court was in response to plaintiff’s intentional infliction of
emotional distress claim. Plaintiff abandoned that claim in
the trial court and thereafter, the city abandoned its
immunity claim.
2
briefed, or argued is certainly efficient. However, the
majority’s efficiency in this case forsakes procedural
fairness. It is worth emphasis that the majority can only
conclude that the city has not waived governmental immunity by
overruling McCummings.
I decline the majority’s invitation to take a position
without briefing and argument on whether governmental immunity
is a characteristic of government, an affirmative defense, or
some other judicially determined hybrid. These
characterizations have significant procedural consequences.
It is the role of the Court to respond to issues properly
before it and to seek additional briefing and argument on
significant matters that may have been overlooked by the
parties. This is especially true where the issues are of
great importance, such as the issues not briefed or argued in
this case, which seriously affect the settled law of this
state.
The majority’s decision to address and resolve this issue
without briefing or argument is inappropriate. Before
deciding this significant change in the law of governmental
immunity, the Court should have had briefing and argument.
B
The question whether a charter-created cause of action
for sexual orientation discrimination conflicts with the
3
governmental tort liability act (GTLA), MCL 691.1407, a
question that the majority concludes decides this case, was
not briefed or argued by the parties at any level.3 It is not
possible to agree with the majority contention that this
specific question was “squarely in front of the parties” when
neither party addressed it at any level. Ante at 24. The
conflict analysis of the parties and the courts below
addressed whether a charter-created cause of action for sexual
orientation discrimination conflicted with the Civil Rights
Act (CRA). Furthermore, the city only characterized the
question of conflict with CRA as one premised on the law of
preemption in its brief to this Court. It is again worthy of
note that it is only the majority’s overruling of McCummings
that allows the majority to shift the focus of the conflict
analysis from the CRA to the GTLA.
C
Although the majority asserts that whether the electors
of Detroit intended to create a cause of action to vindicate
the charter-created civil right to be free from sexual
orientation discrimination is an “irrelevant” inquiry, the
intent of the electors, as expressed in the charter is
3
The Michigan Constitution and the Home Rule City Act
require that home rule city charters not conflict with state
law.
4
noteworthy.4 After all, the issue presented at the outset of
this case was whether the charter language created a cause of
action to vindicate the charter’s declaration of rights.
The charter’s declaration of rights provides:
The city has an affirmative duty to secure the
equal protection of the law for each person and to
insure equality of opportunity for all persons. No
person shall be denied the enjoyment of civil or
political rights or be discriminated against in the
exercise thereof because of race, color, creed,
national origin, age, handicap, sex, or sexual
orientation. [ Section 2.]
The language of § 2 is not ambiguous. It, as would be
commonly understood by the ratifiers, secures a set of rights
to each person of Detroit. Furthermore, § 8 of the
declaration of rights provides:
The city may enforce this Declaration of
Rights and other rights retained by the people.
While it can be argued that the permissive “may” of § 8
tempers the city’s otherwise “affirmative duty” under § 2 to
“insure the equality of opportunity for all persons,” it is by
no means clear that, pursuant to § 8, the ratifiers intended
to diminish the individual rights declared in § 2. More
importantly, the unambiguous language of the charter
demonstrates that the charter ratifiers, the electors of
4
Further, it should be of interest to the people of
Detroit that the city’s position in this litigation seeks to
disclaim individual rights that its electors deemed worthy of
charter protection.
5
Detroit, intended that the people of Detroit have the
opportunity to seek enforcement of their charter-based rights
in the proper court or tribunal. Art 7, ch 10, § 7-1007
provides:
This chapter shall not be construed to
diminish the right of any party to direct any
immediate legal or equitable remedies in any court
or other tribunal.
By these words the ratifiers of the charter would have
expected that individuals could also vindicate their charter
declared rights in the proper court or tribunal.5 In other
words, it was the express intent of the electors of Detroit to
raise the veil of immunity within the city limits with respect
to the civil rights declared in the charter’s declaration of
rights.
The fact that the majority’s decision leaves a charter
based right with no remedy6 accentuates the inappropriateness
of the majority’s decision to dispose of this case on the
5
As reiterated by the United States Supreme Court in
Davis v Passman, 442 US 228, 242; 99 S Ct 2264; 60 L Ed 2d 846
(1979), “‘The very essence of civil liberty,’ wrote Mr. Chief
Justice Marshall in Marbury v Madison, 5 US [1 Cranch] 137,
163; 2 L Ed 60 (1803), ‘certainly consists in the right of
every individual to claim the protection of the laws, whenever
he receives an injury. One of the first duties of government
is to afford that protection.’”
6
Section 8 of the charter declares that the city “may”
enforce the declaration of rights, not that it “must” enforce
those rights. If the city opts not to enforce the declaration
of rights, as it may so choose to do under § 8, the individual
Detroiter would have a right with no remedy.
6
basis of issues that were not raised, not briefed, and not
argued by the parties.
KELLY , J., concurred with WEAVER , J.
7