ANZALDUA v. BAND; SUROWY v. WAYNE STATE UNIVERSITY
Docket Nos. 168358, 170339
Court of Appeals of Michigan
May 14, 1996
216 Mich. App. 561
Submitted November 21, 1995, at Lansing. Decided May 14, 1996, at 9:10 A.M. Leave to appeal sought.
John E. Surowy brought an action in the Wayne Circuit Court against Wayne State University, seeking damages under the WPA. The court, James Mies, J., denied the defendant‘s motion to strike the plaintiff‘s jury demand. The defendant appealed by leave granted.
The appeals were consolidated.
The Court of Appeals held:
Const 1963, art 1, § 14 provides that the right to a trial by jury “shall remain.” Although there is some authority that suggests that the constitutional right to a trial by jury exists with respect to new statutory causes of action only where there existed a similar common-law cause of action that predated the adoption of the 1963 constitution, there is little persuasive rationale for that position, and the weight of authority supports the conclusion that the constitutional right to a jury trial exists with respect to all actions that had they existed before the adoption of the 1963 constitution, would have been denominated as actions at law. Because actions under the WPA generally are denominated as legal actions entitled to a jury trial, the constitutional right to a jury trial exists with respect to actions for damages brought under the WPA.- The defendant universities are state entities that enjoy the state‘s sovereign immunity, which, in the absence of a waiver of that immunity by the Legislature, would be liable for damages only in an action brought in the Court of Claims, in which there is no right to a jury trial. Sovereign immunity may be waived either by express statutory enactment or by necessary inference from a statute. Because the Legislature included state entities within the definition of employer in the WPA and provided that WPA actions may be
filed in the circuit court, the Legislature, by necessary inference, waived the right of state entities to be sued with respect to WPA claims only in the Court of Claims. Accordingly, in light of the Legislature‘s clear intent that both public and private defendants in WPA actions be treated in the same manner, the fact that the defendant universities are state entities does not preclude the plaintiffs from demanding that their claims for damages under the WPA be tried before a jury.
Order of the Ingham Circuit Court reversed; order of the Wayne Circuit Court affirmed.
O‘CONNELL, J., concurring in part and dissenting in part, stated that because the plaintiffs seek legal relief under the WPA, they would normally be entitled to a jury trial. However, because the defendant universities are state entities subject to the state‘s right to sovereign immunity, the right to a trial by jury exists only if immunity has been waived, either explicitly or by necessary inference. The Legislature has not explicitly directed that a WPA claim for damages against a state entity shall include the right to demand a jury trial, and a jury trial may not necessarily be inferred from the subjecting of state entities to WPA liability or from the direction that WPA claims may be filed in the circuit court.
- TRIAL — TRIAL BY JURY — WHISTLEBLOWERS’ PROTECTION ACT.
Actions for damages brought under the Whistleblowers’ Protection Act are subject to the constitutional right of a trial by jury (Const 1963, art 1, § 14 ;MCL 15.361 et seq. ;MSA 17.428[1] et seq. ). - TRIAL — TRIAL BY JURY — STATE ENTITIES — WHISTLEBLOWERS’ PROTECTION ACT.
A plaintiff bringing an action for damages under the Whistleblowers’ Protection Act against a state entity may demand that the claim be tried by a jury; the Legislature, by necessary inference, waived the state‘s right to have claims for damages under the WPA tried in a bench trial in the Court of Claims (MCL 15.361 et seq. ;MSA 17.428[1] et seq. ).
Thomas J. Jewett and Green and Green (by Philip Green and Christine A. Green), for Sharon E. Anzaldua.
Dib and Fagan, P.C. (by Barry S. Fagan and Robert A. Dubin), for John E. Surowy.
Michael J. Kiley, for Michigan State University.
Daniel J. Bernard, for Wayne State University.
Before: MARKMAN, P.J., and O‘CONNELL and J. D. PAYANT,* JJ.
MARKMAN, P.J. In Docket No. 168358, plaintiff Anzaldua appeals by leave granted a trial court order striking her jury demand. In Docket No. 170339, defendant Wayne State University appeals by leave granted a trial court order denying its motion to strike plaintiff Surowy‘s jury demand. These cases, consolidated for appeal, are actions for relief under the Whistleblowers’ Protection Act (WPA),
The WPA is silent regarding whether parties bringing actions under its provisions are to be afforded a right to a jury trial.1 In both cases here, the trial courts appropriately framed the issue as whether parties bringing actions under the WPA retained the right to a
The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.
The “shall remain” language indicates that this provision retains the right to a jury trial as it existed at the time the constitution was adopted and neither restricts nor enlarges it. Accordingly, the question before us in interpreting this provision is what the “right of trial by jury” was in 1963.2 We must define the parameters of the constitutional right to a jury trial to determine whether this right is retained in actions under the WPA.
Here, the trial courts came to opposite conclusions regarding whether the right to a jury trial is retained in actions under the WPA because each used a different test to analyze the constitutional right to a jury trial. In Docket No. 168358, the trial court stated, “there is no right to a jury trial under the [WPA] because that Act was not a common law cause of action prior to the adoption of the 1963 Constitution.” In Docket No. 170339, the trial court compared the case before it to King v General Motors Corp, 136 Mich App 301; 356 NW2d 626 (1984), which held that the right to a jury trial is preserved in actions under the Civil Rights Act. It stated that “an employment discrimination action constitutes a suit for damages and is therefore an action at law which existed prior
These two approaches differ regarding the conditions under which the constitutional right to a jury trial is retained when the Legislature creates a new cause of action without indicating whether the action is to be tried by a jury or the bench. We will refer to these two approaches as the historical-analogue approach and the nature-of-action approach throughout this opinion.3 Under the historical-analogue approach, the test is whether a similar cause of action in which a jury trial was accorded existed at the time the 1963 constitution was adopted. Under the nature-of-action approach, the test is whether the cause of action would have been denominated as legal at the time that the 1963 constitution was adopted and, therefore, whether a party bringing the action would have been accorded a right to a jury trial.
Our nomenclature for the two approaches is intended to distinguish them. However, the distinction between them is more subtle than this nomenclature indicates. Both approaches have an historical-analogue element. Because
Both approaches also consider the nature of the action—whether it is legal or equitable. The denomination of an action as legal or equitable determines whether there is a right to a jury trial under the nature-of-action approach. The historical-analogue approach also analyzes whether an action is legal or equitable to decide if a right to a jury trial is retained. Under this approach, if an analogue predating the 1963 constitution exits, it must still be determined whether the analogue incorporated the right to a jury trial. The cases supporting the historical-analogue approach require the existence of an analogue at common law that afforded the right to a jury trial at the time the 1963 constitution was adopted. “Common law” is generally read as the opposite of “statutory.” But “common law” is also an antonym to “equitable.” Black‘s Law Dictionary (5th ed), at 251. The
We have consistently interpreted the phrase “Suits at common law” to refer to “suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies were administered.” Parsons v Bedford, 28 US (3 Pet) 433, 447; 7 L Ed 732 (1830).
Accordingly, in the cases supporting the historical-analogue approach, the term “common law” is appropriately read as a contrast to equity. The requirement of these cases of a common-law analogue is therefore a requirement of a legal analogue. Further, several of the cases supporting the historical-analogue approach explicitly discuss the legal or equitable nature of the case before them. For example, in In re Colon, 144 Mich App 805, 818; 377 NW2d 321 (1985), this Court set forth this underlying principle:
In general, before the Constitution was adopted, there was a right to jury trial at law but not in equity.
Thus, under the historical-analogue approach, the denomination of an action as legal or equitable determines whether there is a right to a jury trial only if there existed before the adoption of the 1963 constitution a common-law cause of action. Accordingly, while both approaches ultimately look to the nature of the action, they differ in that the historical-analogue approach has the additional requirement that a similar common-law cause of action existed before the adoption of the 1963 constitution.
The language of the constitutional provision does not indicate which of these two approaches is cor-
We found cases that arguably support the historical-analogue approach. Conservation Dep‘t v Brown, 335 Mich 343; 55 NW2d 859 (1952), involved the confiscation of an illegal fishing net. The Court noted that the statute at issue was silent regarding whether there was a right to a jury trial and held:
[T]he right to trial by jury is preserved in all cases where it existed prior to the adoption of the Constitution. The constitutional guaranty applies to cases arising under statutes enacted subsequent to adoption of the Constitution, which are similar in character to cases in which the right to jury trial existed before the Constitution was adopted. . . .
The precise question presented, then, is whether the proceedings here are of such character that a jury trial would have been available before adoption of the Constitution. [Id. at 346-347 (citations omitted).]
The Brown Court noted that the proceedings at issue were not equitable in nature. Id. at 347. But we note that an action involving the confiscation of personal property is not an ordinary legal action. The Brown Court concluded:
We are not persuaded that this is a cause of action known to the common law in which a jury trial was accorded prior to adoption of the Constitution of this state. [Id. at 350.]
In In re Colon, supra, this Court held that there was no right to a jury trial in child custody matters. The Colon Court held:
[R]espondent‘s entitlement to a jury trial depends on whether this case is “similar in character” to cases affording a jury trial before the Constitution was adopted. In addition, we must look to whether the instant proceeding involves a cause of action “known to the common law.” [Id. at 818.]
We note that the Colon Court‘s use of the term “in addition” indicates that this approach has two distinct elements: (1) that the cause of action at issue be “similar in character” to actions predating the 1963 constitution that afforded a jury trial and (2) that the cause of action at issue be “known to the common law.” The Colon Court concluded that child custody matters are clearly equitable in nature and rejected the respondent‘s argument that he was entitled to a jury trial. Id. at 819.
The basis for the result in each of these five cases in which no right to a jury trial was found is unclear.
Several cases in which the right to a jury trial was found to be retained under the Civil Rights Act (CRA),
An employment discrimination action constitutes a suit for damages and is therefore an action at law which existed prior to the adoption of the Michigan Constitution in 1963. Ferguson v Gies, 82 Mich 358, 365; 46 NW 718 (1890); St John v General Motors Corp, 308 Mich 333, 336; 13 NW2d 840 (1944); Pompey v General Motors Corp, 385 Mich 537, 556-557; 189 NW2d 243 (1971).
We note that the basis of the King Court‘s conclusion that the right to a jury trial was retained is ambiguous. It is unclear whether its conclusion turned on the fact that the suit was a legal action or on the fact that there existed common-law analogues predating the 1963 constitution that afforded a right to a jury trial.
These cases that support the historical-analogue approach fail to provide clear authority for choosing the historical-analogue approach over the nature-of-action approach. The language of these cases is ambiguous. The requirement of an historical analogue is drawn from language stating that the constitutional guaranty applies to actions “similar in character” to cases having the right to a jury trial at the time Michigan‘s constitution was adopted. As noted above, such language can be read to require the existence of an analogue predating the 1963 constitution or to refer to the nature of the action; i.e., to require that the cause of action at issue be legal in nature because legal actions retained the right to a jury trial at the time the constitution was adopted.
We acknowledge that the opinion in In re Colon, supra, explicitly refers to two separate elements: “similar in character” and “known to the common law.” The language of Colon thus provides the least ambiguous evidence that “similar in character” should
In contrast to the cases supporting the historical-analogue approach, we found cases supporting the nature-of-action approach that unambiguously identify the factors on which their determinations regarding the right to a jury trial turn. These cases focus exclusively on the nature of the action to determine whether there is a right to a jury trial. In Kahoun v Metropolitan Life Ins Co, 12 Mich App 441, 445; 162 NW2d 922 (1968), this Court held that an insured was improperly denied a jury trial in an action for reimbursement expenses because “[t]he right to jury trial should not be abridged in actions brought at law.”
In Abner A Wolf, Inc v Walch, 385 Mich 253; 188 NW2d 544 (1971), an action to foreclose a mortgage, the defendants demanded a jury trial in connection with their counterclaim that raised legal issues. The entire case was tried before a jury and the trial judge made no independent factual findings regarding the equitable issues. The Wolf Court remanded for reargument before the trial judge. It cited with approval 1 Honigman & Hawkins, Michigan Court Rules Annotated, p 11:
Most important, the distinctions between law and equity must continue to be recognized for the purpose of preserving constitutional rights to trial by jury in legal matters and trial by court in equity matters. [Wolf at 261.]
To determine the merits of this claim, we must ascertain whether the issues raised by plaintiffs’ complaint were “historically . . . tried by the law courts or by the chancellor as of the time when the constitutional guarantee to the right of trial by jury was adopted.” 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 414.
In Dutka v Sinai Hosp of Detroit, 143 Mich App 170; 371 NW2d 901 (1985), this Court held that the trial court erred in striking a jury demand in an action for breach of an implied contract. The Dutka Court focused on the nature of the relief sought, stating:
If a plaintiff seeks only equitable relief, he has no right to a trial by jury. However, in this case, the plaintiff sought both equitable relief in the form of specific performance and legal relief in the form of damages. In this situation the plaintiff had a right to have a jury hear his damage claim. [Id. at 173 (citations omitted).]
In several cases, no right to a jury trial was found because of the equitable nature of the action. In Farwell v Neal, 40 Mich App 351, 354; 198 NW2d 801 (1972), this Court affirmed a denial of a jury trial request in an action involving an alleged release with respect to an automobile accident because the validity of a release was an equitable issue to which no right to a jury trial attached. In Wolfenden v Burke, 69 Mich App 394, 399; 245 NW2d 61 (1976), a real property action, this Court affirmed a ruling that the action was equitable and, therefore, to be tried by the court. In Thomas v Steuernol, 185 Mich App 148, 155-
These cases supporting the nature-of-action approach are not ambiguous in the ways that those supporting the historical-analogue approach are. These cases focus exclusively on the nature of the action to determine whether there is a right to a jury trial. They do not mention the concept of an historical analogue. Accordingly, neither the language nor the results in these cases are ambiguous concerning the factors on which the right to a jury trial turn.
To decide whether the constitutional right to a jury trial is retained in the present actions under the WPA, we must choose between the historical-analogue and nature-of-action approaches. Here, we believe that our decision is dependent on which of these approaches we choose. Under the historical-analogue approach, we would conclude that no right to a jury trial is retained under the WPA because we believe that no true common-law analogue of the WPA predated the 1963 constitution. In Dudewicz v Norris-Schmid, Inc, 443 Mich 68; 503 NW2d 645 (1993), the plaintiff alleged that he was discharged in violation of the WPA and in contravention of public policy. In the course of its determination that the WPA provided an exclusive remedy, the Court held:
At common law, there was no right to be free from being fired for reporting an employer‘s violation of the law. [Id. at 78.]
See also Shuttleworth v Riverside Osteopathic Hosp, 191 Mich App 25, 27; 477 NW2d 453 (1991). Here, plaintiffs argue that cases acknowledging that an employer may not discharge an at-will employee for reasons that contravene public policy are an historical analogue to a cause of action under the WPA. We do not believe such cases are sufficiently similar to actions under the WPA to constitute an historical analogue. Further, we found no such Michigan authority that predated the 1963 constitution. See, for example, Sventko v Kroger Co, 69 Mich App 644, 647; 245 NW2d 151 (1976).
Under the nature-of-action approach, however, we believe that a right to a jury trial would be retained here under the WPA. The WPA provides that a person may bring an action under it “for appropriate injunctive relief, or actual damages, or both.” Section 3(1) of the WPA,
[The WPA] provides a full panoply of legal and injunctive remedies including reinstatement, payment of back wages, full reinstatement of fringe benefits and seniority rights, and actual damages, as well as costs including reasonable attorney and witness fees.
MCL 15.364 ;MSA 17.428(4) .
Accordingly, we must decide between the two approaches to resolve the issue before us. Mindful that our ultimate task is to interpret this constitutional provision, we conclude that the better test of whether the constitutional right to a jury trial is retained is the nature-of-action approach.
First, our review of relevant cases convinces us that they largely turn on the nature of the action. As discussed above, both the results and the language of the cases supporting the historical analogue are ambiguous regarding the factors on which the right to a jury trial turn. We found no published cases in which a litigant pursuing a legal action and seeking legal relief was found not to have a right to a jury trial. Even among the cases supporting the historical-analogue approach, none of the five cases that held the right to a jury trial was not retained involved traditional legal actions. These courts did not have to squarely assess the validity of the historical-analogue approach, because the actions before them were not legal actions in which the right to a jury trial might have been retained but for the lack of a historical analogue. Accordingly, these cases’ support for the historical-analogue approach is less compelling than
The results in all the cases we discussed may be accounted for by the nature-of-action approach. In contrast, the cases supporting the nature-of-action approach do not discuss historical analogues; thus, the results in those cases may not be reasonably read to turn on whether an historical analogue existed. Further, that a particular action was unknown to the common law does not appear determinative of whether a right to a jury trial exists. Some statutory actions unknown to the common law and, indeed, in derogation of the common law are nonetheless triable by jury, e.g., wrongful death cases,
Second, commentary on the court rule addressing the constitutional right to a jury trial better supports the nature-of-action approach. MCR 2.508(A) states:
The right of trial by jury as declared by the constitution must be preserved to the parties inviolate.
The authors’ comment on this rule in 3 Martin, Dean & Webster, Michigan Court Rules Practice, pp 138-139, states:
[B]oth the constitution and the court rule speak of “retaining” and “preserving” the right to trial by jury, not creating one. The right preserved is that as it existed under
common law. Thus to determine whether or not a particular issue or action is entitled to trial by jury, a historical inquiry must be made to determine whether the issue was one which was tried by the law courts or by the chancellor in equity, as of the time when the constitutional guarantee to the right to trial by jury was first adopted. . . . * * *
. . . If all of the issues combined in a single proceeding are of the same nature, all legal or all equitable, one must only identify the true character of the issues to determine if a right to trial by jury exists. Once the character of the issues is determined, a historical inquiry will reveal whether the issues were tried by the law courts or by the chancellor. Only those issues historically tried before the law courts retain the right to trial by jury.
This comment focuses on identifying the nature of the issues—i.e. whether they are legal or equitable—to determine if the right to a jury trial is retained. It speaks of determining whether the issues were ones tried by “the law courts” or “by the chancellor in equity.” This comment accordingly appears to support the nature-of-action approach.
Third, we note the interpretation of jury trial provisions of the United States Constitution and the constitutions of other states that similarly provide that the right to a jury trial shall “remain” or “be preserved.” In Granfinanciera, SA v Nordberg, supra at 41-42, the United States Supreme Court held:
Although “the thrust of the [Seventh] Amendment was to preserve the right to jury trial as it existed in 1791,” the Seventh Amendment also applies to actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty.
The Granfinanciera Court also stated:
In Parsons v Bedford, [28 US (3 Pet) 433; 7 L Ed 732 (1830)] (emphasis added), we contrasted suits at law with “those where equitable rights alone were recognized” in holding that the Seventh Amendment right to a jury trial applies to all but the latter actions. [Id. at 43-44.]
State constitutions “generally” contain express guaranties of the right to a jury trial; such provisions guarantee “the right to a jury trial in those cases in which such a right existed at common law or by statute at the time of the adoption of the state constitution.” 47 Am Jur 2d, Jury, § 6, p 717. Anno: Right to jury trial in action under state civil rights law, 12 ALR5th 508, 520 states:
The general rule under both the Seventh Amendment and the state constitutional provisions is that the right to jury trial protected thereby has substantially the same meaning, extent, and application that it had at common law and at the time of the adoption of those provisions, although the right applies not only to those causes of action that existed at common law or at the time the constitutional provisions were adopted, but also to substantially similar causes of action which would have been subject to the jury trial right if they had been known at that time.
The ALR annotation does not mention any minority rule among the jury trial provisions in state constitutions. Specifically, it does not mention any require-
Fourth, we believe that the Legislature that drafted the WPA in 1980 would have reasonably expected that the right to a jury trial would be retained in an action under the WPA seeking legal remedies. The WPA bears substantial similarities to Michigan civil rights statutes under which the right to a jury trial is retained. Actions under the WPA are analyzed using the “shifting burdens” framework utilized in retaliatory discharge actions under the CRA. See Hopkins v Midland, supra at 378. We also note that the WPA is similar to Michigan‘s civil rights statutes in that all three acts may be broadly characterized as civil rights acts, all three appear directed at protecting employees from wrongful treatment by employers, and actions brought under each of the three acts involve similar factual questions of employer motivation. As discussed above, this Court has determined that the constitutional right to a jury trial is retained in actions under the CRA and the HCRA. See King, supra; Smith, supra; Barbour, supra.5 In the context of the similarity of
Other aspects of the present cases also suggest that the drafters of the
The present actions also raise the type of issues ordinarily raised in legal actions and addressed by juries. Actions under the
Fifth, we consider the two approaches from a constitutional policy perspective.
We discern relatively little persuasive rationale for the requirement of the historical-analogue approach that a pre-1963 common-law analogue be found to exist. The law develops as issues arise and are litigated. The interpretation of
Finally, we note that we analyze the issue before us in the historical context of the constitutional right to a trial by jury. In The Federalist No. 83, Alexander Hamilton considered the “essentiality” to liberty of trial by jury in civil cases. One of the leading judicial scholars of the nineteenth century described the
[T]he right of trial by a jury of 12 men became fixed centuries ago in the common law, and unanimity of verdict became requisite, until, wherever the Anglo-Saxon tongue was spoken, and in many other countries, this right came to be regarded as the great bulwark of the liberty of the citizen.
Faced with uncertain constitutional language and an irreconcilable split of authority interpreting the constitutional provision, the argument of constitutional tradition also persuades us to apply the approach that
For these reasons, we believe that the appropriate test for determining whether a right to a jury trial “remains” is to examine the nature of the action. Specifically, we hold that if the
We now address the effect, if any, on the right to a jury trial under the
This Court addressed a similar issue in Barbour v Dep‘t of Social Services, supra at 275, with respect to the
In most types of actions, the state cannot be tried in front of a jury because the Legislature requires those actions to be tried in the Court of Claims, where cases are heard without a jury. . . .
Had the Legislature intended all civil rights claims against the state to be tried without a jury, it would seem that it would have conferred jurisdiction over such suits upon the Court of Claims, not the circuit court. [Id. at 280.]
The Barbour Court then considered the defendants’ contention that no right to a jury trial exists in suits against the state. Id. It rejected that contention on the basis that it would make the right to a jury trial turn on “the character of a party, not the character of the action.” Id. at 281.
The state‘s sovereign immunity may be waived “by an express statutory enactment or by necessary inference from a statute.” Benson v State Hosp Comm, 316 Mich 66, 73; 25 NW2d 112 (1946), see also McNair v State Hwy Dep‘t, 305 Mich 181, 187; 9 NW2d 52 (1943); Mead v Michigan Public Service Comm, 303 Mich 168, 173; 5 NW2d 740 (1942).6 The
We recognize the difficulty of precisely defining “necessary inference.” When one deals with anything short of an express statement, there is always the possibility of alternative readings. An attempt to remedy this ambiguity by defining “necessary inference” as “the only conceivable inference” would make “necessary inference” indistinguishable from “express statutory enactment.” But the Mead Court stated that the state may waive its sovereign immunity by “express statutory enactment” or by “necessary inference.” Accordingly, we believe that a necessary inference is something less than an express statutory enactment and that a necessary inference requires something less than absolute certainty that it is the only conceivable inference. Whether an inference is a necessary inference sufficient to waive the state‘s immunity from a trial by jury or a mere possible inference insufficient for this purpose appears to be a matter of degree.
In construing a statute, we must give meaning to all the words used. Southfield Western, Inc v Southfield, 206 Mich App 334, 338; 520 NW2d 721 (1994). Accordingly, in interpreting the
We posit three possible rationales for the inclusion of
Second,
Third, the purpose of this provision may be simply to allow plaintiffs the convenience of suing state entities in the circuit court rather than the Court of Claims. But such convenience concerns always exist when a party sues a state entity. We therefore find this explanation the least compelling of the three posited.
For these reasons, we reverse in Docket No. 168358 and affirm in Docket No. 170339.
J. D. PAYANT, J., concurred.
O‘CONNELL, J. (concurring in part and dissenting in part). I respectfully dissent. I agree with the majority that because plaintiffs seek legal as opposed to equitable relief under the
The state‘s right as sovereign to be tried only by the court, as opposed to a jury, may be waived only by express statutory enactment or by necessary inference from a statute. Mead v Michigan Public Service Comm, 303 Mich 168, 173; 5 NW2d 740 (1942); McNair v State Hwy Dep‘t, 305 Mich 181, 187; 9 NW2d 52 (1943). The
The case law is clear that such immunity may not be impliedly waived unless such an inference is necessary to the construction of a statute. Mead, supra; McNair, supra. Because the Michigan courts have not yet had occasion to address this precise issue, I have looked to analogous federal precedent, an approach expressly endorsed by the majority, ante, pp 578-579. As stated in Lehman v Nakshian, 453 US 156, 160-161; 101 S Ct 2698; 69 L Ed 2d 548 (1981):
[I]f Congress waives the Government‘s immunity from suit, . . . the plaintiff has a right to a trial by jury only where that right is one of the “terms of [the Government‘s] con
sent to be sued.” [United States v Testan, 424 US 392, 399; 96 S Ct 948; 47 L Ed 2d 114 (1976)]. Like a waiver of immunity itself, which must be “unequivocally expressed,” . . . “this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Soriano v United States, 352 US 270, 276; 77 S Ct 269; 1 L Ed 2d 306 (1957).
The language could be written in no more absolute terms—any waiver of the right to a bench trial must be unequivocally expressed.
In the present case, the majority‘s inference that the Legislature has impliedly waived the right to be immunized from trial by jury is not a necessary inference, and, therefore, is improper. The majority advances several possible justifications for its conclusion that the
The majority proffers Barbour v Dep‘t of Social Services, 172 Mich App 275; 431 NW2d 482 (1988), as putative support for its conclusion. However, the majority neither endorses nor follows the aberrant reasoning of Barbour, which relies on the concept of implied waiver expressly rejected by the United States Supreme Court. Lehman, supra. Therefore, the reference to Barbour being dicta, I do not address it.
Finally, I would clarify that, contrary to the implication of the majority, I have not assumed that “necessary inference” means “only conceivable inference.” Obviously, “necessary” means essential, not exclusive. The majority has set up something of a straw man in discussing this topic; I have not raised this argument and neither have the parties.
Accordingly, in Docket No. 168358, I would reverse the decision of the trial court with respect to defendant Band only, who is sued individually, and who is subject to defend this action before a jury. I would affirm the denial of trial by jury with respect to the remaining defendants in Docket No. 168358. In Docket No. 170339, because the sole defendant is a state university, I would reverse.