BAUSERMAN v UNEMPLOYMENT INSURANCE AGENCY
Docket No. 160813
Michigan Supreme Court
July 26, 2022
Argued on application for leave to appeal on October 6, 2021. Decided July 26, 2022. Chief Justice: Bridget M. McCormack. Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch. Reporter of Decisions: Kathryn L. Loomis.
Syllabus
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Grant Bauserman, Karl Williams, and Teddy Broe, on behalf of themselves and all others similarly situated, brought a putative class action in the Court of Claims against the Unemployment Insurance Agency, alleging that defendant had violated their due-process rights in violation of
In an opinion by Justice CAVANAGH, joined by Chief Justice MCCORMACK and Justices BERNSTEIN, and WELCH, the Supreme Court, in lieu of granting leave to appeal, held:
A constitutional-tort action for monetary damages against the state exists except in two specific circumstances: (1) when the Constitution has delegated to another branch of government the obligation to enforce the constitutional right at issue or (2) when another branch of government has provided a remedy that the Supreme Court considers adequate. An alternative remedy is adequate when it is at least as protective of a particular constitutional right as a judicially recognized cause of action would be. Justice BOYLE‘s differing multifactor approach for determining whether a constitutional-tort action could be brought against the state was rejected as was her assertion that the state could not be held vicariously liable. People who have been deprived of a constitutional right may seek redress through the courts, regardless of whether the harm was inflicted pursuant to state custom or policy; in other words, the state can be responsible under a theory of respondeat superior for the actions of its agents whether or not the agents were acting under a state custom or policy at the time of the alleged tort. In this case, neither of the exceptions to the existence of liability for a constitutional tort applied to plaintiffs’ claims that defendant violated their due-process rights. Plaintiffs alleged a cognizable constitutional-tort claim for which they could recover money damages. The Court of Claims correctly denied defendant‘s motion for summary disposition.
- Although the Court of Appeals has frequently applied the multifactor test set forth in Justice BOYLE‘s partial concurrence in Smith, the Michigan Supreme Court has not previously found consensus on whether violations of the state‘s Constitution are compensable through actions seeking monetary damages. However, in Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics, 403 US 388 (1971), which recognized for the first time a cause of action against federal agents for a violation of federal constitutional rights, the United States Supreme Court made clear that constitutional violations have historically been redressed with monetary damages; other state courts have similarly concluded that they bear the duty of vindicating rights guaranteed in their constitutions. The continued vitality of Bivens and how federal constitutional torts differ from state constitutional torts was not relevant to the holding of the Court in this case; the holding did not rely on Bivens but on the authorities discussed in that case. Plaintiffs’ cause of action was grounded in state constitutional rights and the Michigan Supreme Court‘s authority and duty to say what the law is.
- Relevant here,
Article 1 of Michigan‘s Constitution , the Declaration of Rights, is the bedrock upon which everything else in the Constitution was built because it guarantees civil and political integrity and the freedom and independence of the state‘s citizens. Any right given in the Constitution must have a remedy or it is not a right at all but, instead, a voluntary obligation. The Constitution does not have to explicitly provide for a remedy for a constitutional violation in order for the Court to enforce its guarantees, regardless of whether the appropriate remedy is in the form of an injunction or money damages; indeed, only a handful of the 27 sections of the Declaration of Rights mention remedies at all. - While the Constitution vests the legislative power of the state in the Senate and House of Representatives, granting them the right to make laws and to alter or repeal them, it exclusively vests the judicial power of the state in the Court, which retains all judicial power not ceded to the federal government. The Separation of Powers Clause of Michigan‘s Constitution requires courts to recognize and redress constitutional violations; in that regard, the Michigan Supreme Court has primary responsibility for interpreting and enforcing the Constitution absent an explicit constitutional provision limiting its authority to redress constitutional violations. Stated differently, vindication of constitutional rights is not dependent on legislative action unless the Constitution specifically delegates that power to the Legislature. The scope of the Legislature‘s authority to regulate tort liability created by statute has no bearing on whether the Legislature has authority to restrict rights codified in the Constitution, let alone whether those rights remain undeveloped without legislative enactment. Further, Legislative silence on the issue of remedies for a due-process violation under
Const 1963, art 1, § 17 does not signal the ratifiers’ intent to preclude any mechanism of enforcement. However, while the Legislature may not trump the Constitution, it may enact a remedial scheme to provide a way in which to vindicate a constitutional right equal to that which the Court could afford. Thus, if the Legislature already provides an adequate mechanism to remedy a constitutional tort—i.e., one that is at least as protective of a particular constitutional right as a judicially recognized cause of action would be—the Court is not required to duplicate the effort. Absent those considerations, the Court retains authority to vindicate the rights guaranteed by the state‘s Constitution, including by recognizing actions seeking money damages. Accordingly, money damages are an available remedy for constitutional torts unless (1) enforcement of the constitutional right was delegated to another branch of government by the Constitution or (2) the Court considers adequate the remedy provided by another branch of government. By adopting this test, the Court rejected Justice BOYLE‘s multifactor approach in Smith. The Court‘s inherent judicial authority requires the Court to afford a remedy for all constitutional violations, not just those it deems wise or justified. Further, unlike Justice BOYLE‘s test, the standard of liability in a constitutional-damages claim is not limited to a direct standard of liability; people who have been deprived of a constitutional right may seek redress through the courts, regardless of whether their harm was inflicted pursuant to state custom or policy. - The Due Process Clause of Michigan‘s Constitution, which is part of the Declaration of Rights, provides that no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. The right of all individuals, firms, corporations, and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed. The language of the Due Process Clause does not confer authority on another branch of government to provide a remedy for a violation of that right; thus, courts may infer a damages remedy under that provision if another branch of government has not provided an adequate remedy.
- In this case, plaintiffs asserted that defendant‘s use of MiDAS deprived them of their property without adequate process and an opportunity to be heard. The Due Process Clause did not confer authority on another branch of government to provide a remedy for violation of that right. MESA did not provide a remedy for plaintiffs because they did not challenge the administration of the act or seek a super appeal from a benefits determination. Instead, plaintiffs brought a tort claim challenging defendant‘s use of MiDAS to deprive plaintiffs of property without due process of law, and no other adequate remedy existed to vindicate the alleged violation of plaintiffs’ rights. Under the facts alleged, plaintiffs’ allegations, if proven, were sufficient to sustain a constitutional-tort claim under Michigan‘s Due Process Clause for which they could recover monetary damages. The Court of Claims correctly denied defendant‘s motion for summary disposition.
Affirmed; case remanded to the Court of Claims for further proceedings.
Justice WELCH, concurring, agreed with the majority that a party has the ability to sue the state for monetary damages on the basis of an alleged constitutional violation and that the remedy will be implied when the only way to adequately remedy the violation is to allow for monetary damages. She also agreed with the majority‘s framework for recognizing a constitutional tort for monetary damages and with the holding that plaintiffs pleaded a valid constitutional tort for monetary damages in this case. She wrote separately because she would have gone further than the majority and expressly limited monetary damages for constitutional torts to claims arising from a violation of a right enumerated in Michigan‘s Declaration of Rights,
Justice VIVIANO, joined by Justice ZAHRA, dissenting, disagreed with the majority‘s conclusion that a party has the ability to sue the state for monetary damages on the basis of an alleged constitutional violation. Any reliance on Bivens to support the Court‘s holding was misplaced because the United States Supreme Court has only recognized a Bivens-style damages claim on two other occasions and those decisions pose separation-of-powers concerns because the Constitution grants to the Legislature the power to create causes of action, not the judiciary. Under Justice BOYLE‘s test in Smith, courts considered multiple factors when determining whether to infer a damages remedy for violations of the Constitution caused by a custom or policy. The separation-of-powers criticisms of Bivens apply equally to Smith. Courts violate the separation of powers when they create causes of action for money damages for constitutional violations; only the Legislature has authority to fashion remedies for constitutional wrongs, not the judiciary. The majority‘s recognition of monetary damages for a constitutional violation by the states obliterates the protections afforded by the separation of powers. To the extent the majority grounded its decision on the Court‘s common-law powers, the decision massively expanded constitutional-tort liability. The majority‘s test provides no guidance in that the Legislature‘s remedy for a constitutional violation will only be adequate if it is that which the Supreme Court would have come up with itself. In addition, the scope of the holding was uncertain because, while the opinion focuses on a provision in the Declaration of Rights, three justices left open the possibility that implied causes of action for damages could be found outside the Declaration. Nothing in the text or history of Michigan‘s Constitution supports finding a general cause of action for damages based on constitutional violations; relevant here, the text of the Due Process Clause does not support a damages remedy. By allowing such claims, Smith was wrongly decided and the majority here compounded the error by broadening Smith. There is a distinction between a court invalidating unconstitutional governmental action by enjoining those violations and a court adopting judicially created doctrines that, in effect, usurp legislative authority by creating de facto statutory enactments to implement a constitutional provision. Thus, recognizing that a person may invoke a court‘s equitable powers to enjoin constitutional violations is not inconsistent with rejecting the inferring of causes of action for damages from the constitutional text. The majority‘s textual analysis amounts to the proposition that the very nature of a right implies a remedy, but the United States Supreme Court and this Court have recognized that not all areas of law provide for damages remedies for the violation of rights. The majority‘s suggestion that there is a historical practice of inferring damages remedies is also not on point because the cases relied on were ordinary tort actions in which the constitutional arguments were incidental to the cause of action and entitlement to damages. Justice VIVIANO would have held that the majority‘s expansion of Smith was wrong and that Smith should be overruled, putting an end to the Court‘s usurpation of the Legislature‘s authority to create causes of action for damages for constitutional violations. Nonetheless, he noted that had the majority simply applied Justice BOYLE‘s test, which three justices in the current majority recently noted was “persuasive,” a damages remedy could not properly have been inferred given the facts in this case.
Justice CLEMENT, dissenting, disagreed with the majority‘s reconsideration and replacement of the test set forth in Justice BOYLE‘s partial concurrence in Smith because that action was not requested by plaintiffs. For the reasons stated in Part IV of Justice VIVIANO‘s dissent, Justice CLEMENT would have applied the Smith test to conclude that a damages remedy should not be inferred in this case.
GRANT BAUSERMAN, KARL WILLIAMS, and TEDDY BROE, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees, v UNEMPLOYMENT INSURANCE AGENCY, Defendant-Appellant.
No. 160813
STATE OF MICHIGAN SUPREME COURT
FILED July 26, 2022
CAVANAGH, J.
OPINION
BEFORE THE ENTIRE BENCH
In this case, we are presented with the question of whether plaintiffs have alleged a cognizable state constitutional-tort claim allowing them to recover a judicially inferred damages remedy. Plaintiffs allege that defendant, Michigan‘s Unemployment Insurance Agency (the Agency), adjudicated allegations of fraud, seized plaintiffs’ tax returns, and imposed penalties on plaintiffs without providing meaningful notice or an opportunity to be heard in violation of Michigan‘s constitutional right to due process,
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs Grant Bauserman and Teddy Broe are former recipients of unemployment compensation benefits who allege that the Agency unlawfully seized their property through use of the Michigan Data Automated System (MiDAS) without affording them due process of law. Their complaint alleges that MiDAS initiates an automated process that can result in recipients being disqualified from benefits and subjected to penalties and criminal prosecution, all without notice or an opportunity to be heard.
Grant Bauserman separated from employment with Eaton Aeroquip and then collected unemployment benefits from September 2013 to March 2014. On December 3, 2014, the Agency issued two notices of redetermination—one claiming that Mr. Bauserman had received unemployment benefits fоr which he was ineligible and another claiming that he had intentionally misled the Agency or concealed information from it. The Agency assessed penalties and interest and informed Mr. Bauserman that he owed $19,910. He timely protested the redetermination through an online appeal on the Agency‘s website, and that protest was forwarded to the Michigan Administrative Hearing System (MAHS) for a hearing. However, MAHS sent the matter back to the Agency, and on June 16, 2015, the Agency intercepted Mr. Bauserman‘s tax refund. Eventually, the Agency reviewed the information Mr. Bauserman submitted and concluded that its adjudication of fraud was incorrect—Mr. Bauserman was eligible for the unemployment benefits he had received, and he neither misled the Agency nor concealed information from it. On September 30, 2015, the Agency issued another redetermination, this one finding that the December 3, 2014 redeterminations were “null and void.” The Agency subsequently returned all monies that it had improperly seized from Mr. Bauserman.
Teddy Broe collected benefits in 2013, and the Agency issued a redetermination on July 15, 2014, finding Mr. Broe ineligible for benefits and assessing penalties. Mr. Broe did not initially protest, and the Agency assessed penalties and interest totaling more than $8,000. In April 2015, Mr. Broe wrote to the Agency, appealing the redetermination and explaining that he had not received the Agency‘s earlier communications because they were sent to his online account with the Agency and he was no longer accessing that account because he was no longer receiving benefits. The Agency intercepted his tax refunds in May 2015. The Agency initially denied the appeal as untimely but later reconsidered Mr. Broe‘s case. On November 4, 2015, the Agency issued a new redetermination in Mr. Broe‘s favor and subsequently returned all monies that had been improperly seized from Mr. Broe.
Mr. Bauserman filed a putative class action against the Agency on September 9, 2015, and he later amended the complaint to add Mr. Broe as a named plaintiff.1 The
As stated by the Court of Appeals, plaintiffs alleged that “the Agency systemically, and by way of concerted and coordinated actions, unlawfully intercepted their state and federal tax refunds, garnished their wages, and forced them to repay unemployment benefits that they had lawfully received.” Bauserman v Unemployment Ins Agency (On Remand), 330 Mich App 545, 565; 950 NW2d 446 (2019). Additionally, they alleged, among other things, that MiDAS does not allow 60 days to present evidence and does not allow the Agency to consider presented evidence. Plaintiffs also alleged that the questionnaires sent by the Agency do not provide the basis for the Agency‘s suspicions or grounds for disqualification. Further, as a practical matter, many claimants never receive the questionnaires because they are sent only to the claimant‘s electronic account with the Agency, without any additional notice via United States mail or e-mail. Among the alleged harms asserted by plaintiffs were that the Agency “failed to repay to Class Members or to repay on a timely basis funds which were seized by the UIA or paid over to UIA by the Class Member to satisfy overpayments and penalty determinations which were reversed at a later time.” Finally, plaintiffs alleged they were deprived of their property without due process of law in violation of
On remand, the Court of Appeals started its analysis by reasoning that claims of this sort “originated” in Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics, 403 US 388; 91 S Ct 1999; 29 L Ed 2d 619 (1971). Bauserman (On Remand), 330 Mich App at 560. The Court of Appeals noted that in Smith v Dep‘t of Pub Health, 428 Mich 540, 544; 410 NW 2d 749 (1987), our Court held that ” ‘[a] claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases,’ ” but
The Court of Appeals followed its general practice with state constitutional torts by first asking whether ” ‘an official policy or custom caused a person to be deprived of [state] constitutional rights,’ ” id. at 561 (alteration in original), quoting Carlton v Dep‘t of Corrections, 215 Mich App 490, 505; 546 NW2d 671 (1996), and it then looked to Justice BOYLE‘s partial concurrence in Smith to determine whether damages were available, Bauserman (On Remand), 330 Mich App at 561-562, citing Smith, 428 Mich at 648-652 (BOYLE, J., concurring in part and dissenting in part). The Court of Appeals concluded that the alleged violations arose from actions taken by state actors pursuant to a government policy and that they could be “aptly characterized as an established practice of state government officials such that [they] amount[] to a custom supported by the force of law.” Bauserman (On Remand), 330 Mich App at 566. Weighing the factors offered by Justice BOYLE‘s partial concurrence, the Court of Appeals concluded that damages were available as a remedy for the due-process deprivations plaintiffs alleged. Id. at 576.
Defendant sought leave to appeal in this Court, and we scheduled oral argument on the application, instructing the parties to address “whether the appellees have alleged cognizable constitutional tort claims allowing them to recover a judicially inferred damages remedy.” Bauserman v Unemployment Ins Agency, 506 Mich 965 (2020).
II. STANDARDS OF REVIEW
The decision before us for review is whether plaintiffs have failed to state a claim under
III. ANALYSIS
The recognition and redress of constitutional violations are quintessentially judicial functions, required of us by the Separation of Powers Clause. See
A. SMITH AND MAYS
Though the question of whether violations of our Constitution are compensable through actions seeking monetary damages has been posed to us before, we have not previously found consensus. In Smith we produced several opinions, but our holdings were limited. Ultimately, four Justices agreed that governmental immunity was not a defense to allegations of constitutional torts and that damages may be recognized in appropriate cases. Smith, 428 Mich at 544.
In a concurring opinion, Justice BRICKLEY, joined by Justice RILEY, cataloged the ebb and flow of the United States Supreme Court‘s decisions regarding federal constitutional torts, starting with Bivens. Id. at 612-626 (BRICKLEY, J., concurring). He then opined that he would have declined to recognize a remedy for the plaintiffs in the Smith cases. Id. at 626-636. One plaintiff, Jack Smith, who had been confined in a state psychiatric hospital for nearly 50 years, sought relief under 1908 Const, art 2, §§ 1 and 16 for the confinement. Id. at 551-552. The other plaintiff, Ray Will, was an employee of the state of Michigan who was denied promotion. Id. at 546-550. He sought relief under
Also concurring, Justice BOYLE, joined by Justice M. CAVANAGH, agreed that plaintiff Will‘s argument was unpreserved. Id. at 637 (BOYLE, J., concurring in part and dissenting in part). But she would have remanded plaintiff Smith‘s case, writing separately to emphasize that allegations of state constitutional torts avoid governmental immunity. Id. at 637-638. She opined, “It is so basic as to require no citation that the constitution is the fundamental law to which all other laws must conform.” Id. at 640. With regard to statutory governmental immunity, she noted that all statutes should be construed to avoid constitutional invalidity. Id. at 641. Given that understanding, she concluded, “The idea that our Legislature would indirectly seek to ‘approve’ acts by the state which violate the state constitution by cloaking such behavior with statutory immunity is too far-fetched to infer” from the statute. Id. Considering common-law sovereign immunity, she nоted the concept had been abrogated in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), but even absent the abrogation,
Justice ARCHER, joined by Justice LEVIN, started his analysis by reasoning that any intentional tort, whether constitutional in nature or not, is not barred by governmental immunity. Smith, 428 Mich at 657 (ARCHER, J., dissenting). He would not have limited the scope of cognizable constitutional torts to those occurring by virtue of governmental custom or policy. Id. at 658.
After Smith, the Court of Appeals repeatedly cited that fractured opinion for the proposition that immunity is not available to the state for violating rights guaranteed by the Michigan Constitution. See Mays, 506 Mich at 190-191 (plurality opinion by BERNSTEIN, J.) (collecting cases). We did not return to the question of what remedies are available for constitutional torts until Mays, when we evenly split over whether to recognize a damages remedy for the alleged constitutional violations there. See Mays, 506 Mich 157. Though the Court of Appeals has frequently cited Justice BOYLE‘s partial concurrence in Smith, we could not reach a consensus on what analysis should be controlling. See Mays, 506 Mich at 217 (MCCORMACK, C.J., concurring) (“If and when the appropriate time (and case) comes along, we can debate whether Smith was correctly decided and what rationale we would use to justify the conclusion that monetary damages are available (or not) in constitutional-tort actions.“); Mays, 506 Mich at 263 (VIVIANO, J., concurring in part and dissenting in part) (“I question whether Smith was correctly decided on this point, and I would be willing to reconsider Smith in an appropriate future case.). Now, we face the question once again.
B. CITIZENS RELY ON COURTS TO PROTECT AND VINDICATE CONSTITUTIONAL RIGHTS
One way to think of a right is in terms of the correlative duty it imposes on another to act or refrain from acting for the benefit of the right-holder. See Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University Press, 1919), pp 35-38. Thought of in this way, a right must have a remedy. If not, it is not a right at all but only “a voluntary obligation that a person can fulfill or not at his whim,” or merely “a hope or a wish.” Zeigler, Rights Require Remedies: A New Approach to the Enforcement of Rights in the Federal Courts, 38 Hastings L J 665, 678 (1987). This understanding of rights is as old as our republic:
It is essentiаl to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will in fact amount to nothing more than advice or recommendation. [The Federalist No. 15 (Hamilton) (Cooke ed, 1961), p 95.]2
Said another way, “[l]egal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp.” The Western Maid, 257 US 419, 433; 42 S Ct 159; 66 L Ed 299 (1922). If our Constitution is to function, then the fundamental rights it guarantees must be enforceable. Our basic rights cannot be mere ethereal hopes if they are to serve as the bedrock of our government.
This Court has not only the authority, but also the primary responsibility of interpreting and enforcing our Constitution. ” ‘To adjudicate upon and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department.’ ” Johnson v Kramer Bros Freight Lines, Inc, 357 Mich 254, 258; 98 NW2d 586 (1959), quoting Cooley, Constitutional Limitations (7th ed), p 132. The judiciary “has the legitimate authority, in the exercise of the well-established duty of judicial review, to evaluate governmental action to determine if it is consistent with” the Constitution. Sharp v Lansing, 464 Mich 792, 802; 629 NW2d 873 (2001). This is a first principle, inherent in our tripartite separation of powers. A “major function[]” of the judiciary is to “guarantee[]” the rights promised in our Constitution. 2 Official Record, Constitutional Convention 1961, p 2196. If the rights guaranteed in our Constitution are to be more than words on paper, then they must be enforceable.3 And if
the rights
We agree with the Smith majority in this regard: “A claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases.” Smith, at 428 Mich at 544. And in doing so, both then in Smith and here today, we are not an outlier. State courts recognizing private causes of action for state constitutional violations is nothing new. See Bull v Armstrong, 254 Ala 390; 48 So 2d 467 (1950) (recognizing a private cause of action for an illegal warrantless search in violation of Alabama‘s constitution); Mayes v Till, 266 So 2d 578 (Miss, 1972) (recognizing a private cause of action for an illegal warrantless search in violation of Mississippi‘s constitution). By the time the United States Supreme Court announced its decision in Bivens, the foundation for state courts to recognize private causes of action for constitutional violations was already ingrained in the American conception of government. See Widgeon, 300 Md at 535 (“[T]here is no need to imply a new right of action because, under the common law, there already exists an action for damages to remedy violations of constitutional rights.“).
Bivens was somewhat novel in that it recognized—for the first time—a cause of action against federal agents for violation of federal constitutional rights. But the Court was clear that the path it traveled had always been open, explicitly stating that courts had always had the authority to remedy violations of constitutional harms: “[I]t has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” Bivens, 403 US at 392 (quotation marks and citation omitted). The Bivens Court did not think it was doing anything revolutionary but, rather, said the notion that constitutional violations could be redressed with monetary compensation “should hardly seem a surprising proposition.” Id. at 395.
Since Bivens, sister courts in other states have likewise concluded that they bear the duty of vindicating the rights guaranteed in their constitutions. “It is the state judiciary that has the responsibility to protect the statе constitutional rights of the citizens; this obligation to protect the fundamental rights of individuals is as old as the State.” Corum v Univ of North Carolina, 330 NC 761, 783; 413 SE2d 276(1992). “It is the state judiciary that has the responsibility to protect the state constitutional rights of the citizens.” Godfrey v Iowa, 898 NW2d 844, 865 (Iowa, 2017). “The power of the Court to enforce rights recognized by the New Jersey Constitution, even in the complete absence of implementing legislation, is clear.” King v S Jersey Nat‘l Bank, 66 NJ 161, 177; 330 A2d 1 (1974), citing Marbury v Madison, 5 US (1 Cranch) 137, 163; 2 L Ed 60 (1803). See also Gay Law Students Ass‘n v Pacific Tel & Tel Co, 24 Cal 3d 458, 475; 595 P2d 592; 156 Cal Rptr 14 (1979) (recognizing a cause of action for monetary damages for a violation of the state‘s Equal Protection Clause); Newell v Elgin, 34 Ill App 3d 719, 722-725; 340 NE2d 344 (1976) (recognizing a cause of action for monetary damages for a violation of the state‘s illegal-seizure protection); Moresi v Louisiana, 567 So 2d 1081; 1091-1093 (La, 1990) (recognizing a cause of action for monetary damages for a violation of the state‘s privacy protection); Widgeon, 300 Md at 525-534 (recognizing a cause of action for monetary damages for a violation of the state‘s search-and-seizure protection). But see Godfrey, 898 NW2d at 856-857 (collecting cases and describing courts as “nearly equally divided“).
These courts frequently refer to principles relied on by the Bivens Court and to 4 Restatement Torts, 2d, § 874A, comment a, p 301.4
The Bivens Court explained how constitutional torts hold the potential for greater harm than private torts: “An agent acting—albeit unconstitutionally—in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” Bivens, 403 US at 392. Other courts have continued to make similar observations: “[T]here is a great distinction between wrongs committed by one private individual against another and wrongs committed under authority of the state.” Dorwart v Caraway, 312 Mont 1, 16; 2002 MT 240; 58 P3d 128 (2002). The purpose of codifications of rights in the federal Constitution, our Constitution, and the constitutions of other states is to protect against these unique and dangerous encroachments. Corum, 330 NC at 782-783; see also Godfrey, 898 NW2d at 876-877; Binette, 244 Conn at 43. That danger is exemplified here. Plaintiffs allege that when they were rightfully eligible for unemployment benefits—meant to be a hand up during a financially difficult and fragile juncture—they were accused of fraud and assessed staggering penalties without notice or any meaningful opportunity to be heard.5
To remedy these types of harms, the Bivens Court saw nothing extraordinary about the availability of monetary damages: “Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Bivens, 403 US at 395, citing Nixon v Condon, 286 US 73; 52 S Ct 484; 76 L Ed 984 (1932); Nixon v Herndon, 273 US 536, 540; 47 S Ct 446; 71 L Ed 759 (1927); Swafford v Templeton, 185 US 487; 22 S Ct 783; 46 L Ed 1005 (1902); Wiley v Sinkler, 179 US 58; 21 S Ct 17; 45 L Ed 84 (1900); Landynski, Search and Seizure and the Supreme Court, pp 28 et seq. (1966); Lasson, History and Development of the Fourth Amendment to the United States Constitution, pp 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v Hood, 117 U Pa L Rev 1, 8-33 (1968); cf. West v Cabell, 153 US 78; 14 S Ct 752; 38 L Ed 643 (1894); Lammon v Feusier, 111 US 17; 4 S Ct 286; 28 L Ed 337 (1884). Rejecting alternate framings, the Bivens Court saw the question before it as a simple one—whether the petitioner was “entitled to redress his injury through a particular remedial mechanism normally available in the federal courts.” Bivens, 403 US at 397. The answer was axiomatic: ” ‘The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.’ ” Id., quoting Marbury, 5 US (1 Cranch) at 163. Other courts have shared that view. “The availability of damages at law is thus an ordinary remedy for violation of constitutional provisions, not some new-fangled innovation.” Godfrey, 898 NW2d at 868. We share this view and make the unremarkable observation that damages are an available remedy for the state‘s constitutional violations. “This Court is ultimately responsible for enforcing our state‘s Constitution, and remedies are how we do that.” Mays, 506 Mich at 215 (McCORMACK, C.J., concurring).
One final point about Bivens. Defendant argues that the United States Supreme Court‘s recent treatment of Bivens requires this Court to refrain from recognizing causes of action for constitutional torts. We disagree. This Court has already debated the continued vitality of Bivens and how federal constitutional torts differ from state constitutional torts. See Mays, 506 Mich at 214-224 (McCORMACK, C.J., concurring); Mays, 506 Mich at 245-263 (VIVIANO, J., concurring in part and dissenting in part). Whatever the relative merits of those positions, they are beside the point. Our holding today does not rely on Bivens at all, but on the authorities that Bivens discussed and that so many other courts have discussed since then. Bivens is famous and often cited, and with good reason. It is an eloquent explanation of the judiciary‘s duty to enforce constitutional guarantees and its authority to use available remedies to that end. But Bivens is just that—a discussion of the authority, not the authority itself. The plaintiffs’ cause of action is created by our state Constitution, not by any court.6 Our holding today is grounded in the constitutional rights relied on by plaintiffs as well as our authority and duty to say what the law is. See Marbury, 5 US (1 Cranch) at 177. These authorities remain undisturbed.
Justice VIVIANO responds only in passing to the core idea that a right requires a remedy. He briefly and puzzlingly acknowledges Marbury, but his takeaway is that the Court could not enforce a remedy for William Marbury because it did not have jurisdiction. That is an accurate statement about Marbury, and if we similarly lacked jurisdiction in this matter, we would have no authority to enforce a remedy. Of course, we do have jurisdiction here.7
We agree with Justice VIVIANO, actually, that judges should not create liability based on policy considerations. We are doing nothing of the kind. The Constitution poses restrictions on the state for the protection of Michigan citizens, and if the state harms its citizens in violation of those prohibitions, that is what creates liability. Justice VIVIANO would err in the opposite direction; he would excuse the state‘s liability based on his own policy concern—that a violation of constitutional rights should not be redressed by money damages. The core principle that guides our reasoning is that a right must be enforceable; otherwise, it is not right at all but a mere hope. It merits repeating that the fundamental rights our Constitution guarantees are “the bedrock upon which all else in the constitution may be built.” 1 Official Record, Constitutional Convention 1961, p 106 (remarks of Governor John B. Swainson). Without them, there is nothing.
C. LEGISLATIVE SILENCE DOES NOT DIVEST COURTS OF THEIR AUTHORITY OR RESPONSIBILITY
Even against this long history of courts enforcing constitutional protections by providing remedies for constitutional violations, the Agency argues that recognizing a cause of action is beyond our authority and that establishing a mechanism to redress the alleged violations of plaintiffs’
Under our Constitution, “the judicial power of the State is vested exclusively in one court of justice . . . .”9
What plaintiffs ask of us is not to make new law under the Constitution but, rather, to enforce the Constitution itself. As the United States Supreme Court has noted, “the judiciary has a particular responsibility to assure the vindication of constitutional interests . . . .” Bivens, 403 US at 407 (Harlan, J., concurring). In addressing the argument that vindication of constitutional rights should be left to the legislative branch, one of our sister courts reasoned, “It would be ironic indeed if the enforcement of individual rights and liberties in the Iowa Constitution, designed to ensure that basic rights and liberties were immune from majoritarian impulses, were dependent on legislative action for enforcement.” Godfrey, 898 NW2d at 865. Similarly, “[t]he very purpose of the Declaration of Rights is to ensure that the violation of these rights is never permitted by anyone who might be invested under the Constitution with the powers of the State.” Corum, 330 NC at 783.
Relying on McCahan v Brennan, 492 Mich 730, 736; 822 NW2d 747 (2012), the Agency argues that the Legislature holds the authority to decide whether the state can be sued, and if so, the extent of any liability. The Agency notes that under
The fatal flaw in these arguments is that they assume their own conclusions. Our Constitution provides for a separation of powers generally, and specifically in
There are instances in which the Constitution specifically tasks the Legislature with implementing the rights it affords. An example is
On its face, the implementation power of
Const 1963, art 1, § 2 is given to the Legislature. Because of this, for this Court to implementConst 1963, art 1, § 2 by allowing, for example, money damages, would be to arrogate this power given expressly to the Legislature to this Court. Under no recognizable theory of disciplined jurisprudence do we have such power. [Lewis v State, 464 Mich 781, 787; 629 NW2d 868 (2001).]
But in the absence of such a specific delegation, constitutional rights must still be enforceable. As we have discussed, interpreting the Constitution and determining the scope of the rights it affords is the core of our function as the judicial branch. We know “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury, 5 US (1 Cranch) at 177. Interestingly, while criticizing Justice BOYLE on the one hand for considering public policy in her analysis, the Agency admits that we must analyze ” ‘competing policies, goals, and priorities[.]’ ” (Quoting Carlson v Green, 446 US 14, 36; 100 S Ct 1468; 64 L Ed 2d 15 (1980) (Rehnquist, J., dissenting).) As to the scope of the state‘s liabilities, we agree that weighing policy considerations to pick and choose which harms the state should be liable for and to what extent is not within our purview. But neither is it within the purview of the Legislature. That consideration has been completed, and those choices are contained within the Constitution.10 The state is prohibited from violating the rights the Constitution guarantees. If it does so, it is liable for the harm it causes.11
But the Agency‘s position is weaker even than if there were some legislative action in play. As discussed, the Legislature cannot curtail a substantive constitutional right or limit the remedies
D. THE CONTINUED VIABILITY OF JUSTICE BOYLE‘S PARTIAL CONCURRENCE IN SMITH
While we agree with the Smith majority that a claim for damages against the state arising from a violation of the Michigan Constitution may be recognized in appropriate cases, Smith, 428 Mich at 544, we part ways with Justice BOYLE as to how to determine an “appropriate case.” As already discussed, in light of this Court‘s inherent judicial authority and respect for the separation of powers, we believe that a cause of action exists except in two specific circumstances: (1) when the Constitution has delegated to another branch of government the obligation to enforce the constitutional right at issue or (2) when another branch of government has provided a remedy that we consider adequate. While Justice BOYLE also recognized these two exceptions, her partial concurrence suggests that she would have also recognized additional exceptions. Justice BOYLE would presumably have declined to recognize a claim for damages where the existence and clarity of the constitutional violation at issue is unclear and where the degree of specificity of the constitutional protection is unclear. Id. at 652 (BOYLE, J., concurring in part and dissenting in part). But while these conсerns may caution against imposing liability on the state for violation of a particular constitutional provision under particular factual situations, they speak to whether a right exists or has been violated, not to whether there is a constitutional-damages remedy for that violation. Justice BOYLE would also “consider the text, history, and previous interpretations of the specific provision for guidance on the propriety of a judicially inferred damage remedy.” Id. at 650. But, as discussed previously, the only concern for the “propriety” of recognizing a damages action should be derived from this Court‘s inherent judicial authority and the language of the Constitution itself—such as when the Constitution specifically delegates to another branch of government the obligation to enforce the constitutional right. Otherwise, this Court should not be in the business of determining the “propriety” of recognizing a constitutional-damages claim. Likewise, Justice BOYLE‘s consideration of “various other factors, dependent upon the specific facts and circumstances of a given case,” id. at 651,
One final, but important, point of disagreement with Justice BOYLE‘s partial concurrence in Smith: we do not limit the standard of liability in a constitutional-damages claim to a direct standard of liability. Justice BOYLE opined that, consistent with Monell v New York City Dep‘t of Social Servs, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978), the state‘s liability for constitutional violations should arise only when the state is acting pursuant to a custom or policy that violates the constitution. In other words, the state cannot be held vicariously liable for the constitutional violations of its employees or agents. Smith, 428 Mich at 642-643 (BOYLE, J., concurring in part and dissenting in part). But, in Monell, the United States Supreme Court was faced with the question of whether, and when, an entity, such as a municipality, may be held liable under a specific statutory provision,
Justice VIVIANO mentions liability for cities and villages as well as individuals who operate public utilities. But our holding is that the state is
IV. APPLICATION
Plaintiffs allege that the Agency violated their due-process rights by seizing their property without providing them with adequate notice and an opportunity to be heard. Plaintiffs allege that the Agency systematically and unlawfully intercepted their state and federal tax refunds, garnished their wages, and forced them to repay unemployment benefits that they had lawfully received. Plaintiffs allege that the Agency took these actions (1) without providing proper notice or hearing, (2) without allowing plaintiffs to present evidence, and (3) by using a computerized system to detect and determine fraud cases that does not comport with due process. These allegations, if proven, are sufficient to sustain a constitutional-tort claim for a violation of the Due Process Clause of the Michigan Constitution,
No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.
Nothing in the language of this provision, or any other constitutional provision, confers authority on another branch of government to provide a remedy for violation of this right. Accordingly, the first exception to recognizing a damages action is not met here. In addition, the Legislature has not enacted a statutory remedy that adequately compensates a plaintiff for violation of this due-process right, so the second exception is likewise not present. While the Agency argues that plaintiffs have a remedy in the form of an appeal under the Michigan Employment Security Act,
V. CONCLUSION
Plaintiffs seek redress of the alleged deprivation of their property without notice or an opportunity to be heard in violation of
Megan K. Cavanagh
Bridget M. McCormack
Richard H. Bernstein
Elizabeth M. Welch
GRANT BAUSERMAN, KARL WILLIAMS, and TEDDY BROE, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees, v UNEMPLOYMENT INSURANCE AGENCY, Defendant-Appellant.
No. 160813
STATE OF MICHIGAN SUPREME COURT
WELCH, J. (concurring).
Today, a majority of this Court confirms that a party has the ability to directly sue the state for monetary damages on the basis of an alleged violation of our Constitution. We have previously recognized these claims and that a remedy for monetary damages exists in appropriate cases. Smith v Dep‘t of Pub Health, 428 Mich 540, 544; 410 NW2d 749 (1987). When the only way to adequately remedy a constitutional violation is to allow for monetary damages, then such a remedy will be implied.1 The majority opinion
I. CONSTITUTIONAL TORTS AND THE DECLARATION OF RIGHTS
In Part III of its opinion, the majority has set forth a framework, with which I agree, for recognizing a constitutional tort for monetary damages. I would, however, go further than my colleagues and expressly limit our recognition of constitutional-tort actions for monetary damages to claims based on a violation of the fundamental liberties enumerated in Michigan‘s Declaration of Rights,
Our state Constitution has long contained a distinct Bill or Declaration of Rights.2
Another of your heavy responsibilities will be review of our constitutional declaration of rights. As that part of our constitution that guarantees the civil and political integrity, the freedom and independence of our citizens, the bill of rights is the bedrock upon which all else in the constitution may be built. [1 Official Record, Constitutional Convention 1961, p 106 (remarks of Governor John B. Swainson).]
Governor Swainson made similar statements in a letter he provided to the committee examining and proposing amendments of the Declaration of Rights:
“The drafting of a declaration of rights that will incorporate the distilled wisdom of the past and provide for the protection of individual rights emerging from the social and economic ferment of the twentieth century could very well be the most important and lasting contribution that this convention can make to the preservation of the democratic ideal.
Other provisions of the fundamental law of the state affect some of us in our relation to state government and the services it provides for us. But the rights guaranteed by the declaration of rights affect all of us.
Action by the state to buttress the protection of the individual against the possible tyrannies of bureaucracy, the exploitation, discrimination, invasion of privacy, and unequal access to justice will give strong support to the revitalization of our state.
* * *
In a society that is becoming more highly organized in groups, the proper expression of these group interests and activities must be harmonized with the urgent necessity to reassert the doctrine that the essential feature of democracy remains the statutes of the individual.” [1 Official Record, Constitutional Convention 1961, pp 400-401 (remarks of Governor John B. Swainson).]
Professor James K. Pollock, chairman of the committee examining the Declaration of Rights, noted the fundamentals underlying a bill of rights in a statement made on Bill of Rights Day. Pollock explained, “The basic theory underlying the early bills of rights is a belief in the rights of individual men and in rights existing in the law of nature independent of states or their laws, as set forth especially in Locke‘s Second Treatise on Government (1690).”
When the proposed amendments of the Declaration of Rights were presented to the full body of the convention, the committee recommended movement of the Declaration of Rights from Article 2 to Article 1. Pollock explained why:
In the committee‘s opinion[,] the liberties of the people are so fundamental to
the Michigan constitution and to free representative government generally that the declaration of rights which establishes the fundamental principles of liberty and sets up the basic legal guideposts for their implementation and enforcement, should appear as the first article in the new constitution. In retaining or altering any present provisions, the committee has carefully considered the exact language in question, as well as committee intent, with the purpose of reducing as far as possible the necessity of judicial construction. [ 1 Official Record, Constitutional Convention 1961, p 466 (remarks of James K. Pollock).]
The substance of the Declaration of Rights was vigorously debated over many weeks at the constitutional convention, but the core purpose and importance of having a declaration of rights was widely agreed upon.
The notion that monetary recovery is available for the violation of inalienable fundamental liberties set forth in our Constitution aligns with the robust public statements and debate at the constitutional convention of 1961. An untenable situation would arise if the state could violate an individual‘s fundamental, inalienable rights without the individual having a legal pathway to an adequate remedy. Our fundamental and inalienable liberties would hardly be fundamental at all without such a remedy.
In light of these considerations, I wholeheartedly agree with the majority that the liberties enumerated in the Declaration of Rights are fundamental, and “[w]ithout them, there is nothing.” Ante at 21. But not everything in our Constitution creates a right that is clearly individualized or inalienable. While Part IV of the majority opinion applies the newly adopted legal framework to a due process claim, the legal analysis in Part III of the opinion is broad enough that it could apply to any alleged violation of any provision of our Constitution, despite the caveats contained in footnote 13. I do not endorse such a broad ruling, even if implicit, given existing law and the arguments that have been presented in this case.
Beyond Article 1, much of the balance of our Constitution focuses on the operational mechanics for state and local government, elections, taxation, and public employment, as well as other more technical details, as Justice VIVIANO‘s dissent acknowledges. These technical details are the alienable rights and liberties described by Pollock at the constitutional convention of 1961. While the Declaration of Rights must remain a protective backdrop, the degree of individualization of other alienable rights is lessened once the people have entrusted the state with administration of these alienable rights and liberties for the sake of allowing a democratic government to operate. Generally speaking, the violation of nonindividualized, alienable rights that have been entrusted to the state appear poorly suited to vindication through an award of monetary damages against the state. At least one other state Supreme Court appears to have likewise limited monetary-damage remedies for constitutional-tort claims arising under its state‘s declaration of rights. See Corum v Univ of N Carolina, 330 NC 761, 783-786; 413 SE2d 276 (1992).
The constitutional claim before the Court today is premised on a due process violation. The same was true of the constitutional claims at issue in Smith and Mays v Governor, 506 Mich 157; 954 NW2d 139 (2020). Michigan‘s Due Process Clause is contained in the Declaration of Rights.
This Court has never given comprehensive consideration to whether a monetary-damages remedy should be recognized for the violation of any right or liberty outside of the Declaration of Rights. In light of the history I have set forth and the cases this Court has considered in the past, I am doubtful that a claim for monetary damages should be recognized in such circumstances, even if all other criteria of the framework the majority adopts today have been satisfied.
It is worth repeating: implying a monetary-damages remedy for constitutional torts is reserved as a “narrow remedy,” Jones v Powell, 462 Mich 329, 337; 612 NW2d 423 (2000), and when necessary, as an ultimate stop-gap measure to vindicate the constitutional right. I believe a violation of an individualized liberty contained in the Declaration of Rights provides a pathway for an action for monetary damages under some circumstances, but I do not believe the same can be assumed for the rest of our Constitution. Accordingly, while I agree with the analysis in Part III, I limit my concurrence to allowing a monetary-damages remedy only for violations of the Declaration of Rights,
II. ADEQUATE ALTERNATIVE REMEDIES
Contrary to Justice VIVIANO‘s view, I believe that the majority‘s adequate-alternative-remedy criteria for setting forth a constitutional-tort claim will substantially limit the liability faced by the state. Under the test adopted by the majority today, if there is an adequate alternative remedy that vindicates the violation of a fundamental constitutional right, then monetary damages will not be allowed for violation of that constitutional right. I write separately to emphasize that an adequate remedy need not necessarily make a plaintiff “whole” in every circumstance, and that this limitation provides more protection to the state‘s coffers than Justice VIVIANO suggests.
Rather, the question is also whether the existing remedy—injunctive relief, declaratory relief, more process, a refund, or whatever it is—will be adequate such that the constitutional right is preserved and not rendered ineffectual. See, e.g., Lum v Koles, 314 P3d 546, 556-557 (Alas, 2013) (“The alternative remedies do not need to provide the same level of protection, ‘may include federal remedies,’ ‘need not be an exact match,’ and are alternatives even if no longer procеdurally available.“) (citation omitted). Just as our state courts are well-equipped to determine whether a state constitutional violation has occurred, In re Apportionment of State Legislature–1982, 413 Mich 96, 114; 321 NW2d 565 (1982), they are also well-equipped to determine whether adequate alternative remedies exist.
The Legislature will generally be able to manage its potential exposure by providing rights and remedies in legislation so long as those remedies are substantial enough
These cases are persuasive. There is an ongoing relationship between the roles of the different branches of government that deserves respect. Unless monetary damages are necessary to secure and vindicate a violation of a constitutional right, it is inappropriate to second-guess policy-type decisions of the Legislature or the Executive Branch regarding how to remedy violations of legal rights under a statutory scheme. The threshold question for judges is whether a remedy is adequate, not whether it is ideal or equally comprehensive. In practice, it appears that courts in other states have held that adequate alternative remedies preclude a constitutional remedy for monetary damages under many circumstances.3
III. CONCLUSION
For the reasons already discussed, I concur with the majority that a claim against the state for monetary damages can be recognized for certain constitutional violations and with the holding that a claim for monetary damages is appropriate in this case. While I agree with the legal framework and analysis in Part III of the majority opinion, I qualify my concurrence with the majority opinion in the manner previously discussed. Finally, while I appreciate Justice VIVIANO‘s concerns, I believe the requirement that no adequate alternative remedy exist before a monetary-damages remedy can be implied will ensure that recognition of such a remedy for constitutional-tort claims will remain relatively rare.
Elizabeth M. Welch
GRANT BAUSERMAN, KARL WILLIAMS, and TEDDY BROE, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees, v. UNEMPLOYMENT INSURANCE AGENCY, Defendant-Appellant.
No. 160813
STATE OF MICHIGAN SUPREME COURT
VIVIANO, J. (dissenting).
VIVIANO, J. (dissenting).
Our Constitution establishes the structure of our government, its powers and limits, and the rights of the people.1 After today‘s decision, the Constitution will also provide individuals with a cause of action for money damages when their constitutional rights are violated if the Legislature has not provided a remedy that a majority of this Court deems “adequate.” This represents an expansion of liability for the state and its taxpayers, without any legal grounding. In fashioning this new cause of action for monetary damages, the Court wields legislative power, unjustified by our common-law authority or the text and history of the Constitution itself. I would instead hold that this Court has no power to create these new causes of action and would overrule our caselaw suggesting otherwise.
I. SMITH, BIVENS, AND THE SEPARATION OF POWERS
I believe that it is a violation of the separation of powers for courts to create causes of action for money damages for constitutional violations. The fashioning of remedies for constitutional wrongs is the work of the legislative branch, not the courts. While we have authority over the common law, it is a gross abuse of that authority to create causes of action for damages in these circumstances.
A. CASELAW
Today, for the first time in Michigan‘s history, a majority of this Court has held that a plaintiff has properly alleged a claim for money damages to redress a violation of Michigan‘s 1963 Constitution. In the handful of our cases addressing this general subject, we have recognized the possibility that violations of the Constitution could result in a cause of action for monetary damages, but we have never before found such a cause of action. Our initial decision establishing that such claims exist came in the hopelessly fractured memorandum opinion in Smith v Dep‘t of Pub Health.2 The Court issued a brief memorandum opinion signed by all six participating justices; that opinion simply listed six propositions that at least four of the participating justices agreed upon, two of which were:
5) Where it is alleged that the state, by virtue of custom or policy, has violated a right conferred by the Michigan Constitution, governmental immunity is not available in a state court action.
6) A claim for damages against the state arising from violation by the state
of the Michigan Constitution may be recognized in appropriate cases.3
“The Smith opinion was silent as to why a majority of the Court had agreed on these tenets.”4 As my partial dissent in Mays v Governor5 explained, the Court‘s memorandum opinion was followed by four separate opinions written or joined by the participating justices. Justice BOYLE set forth the test that, until today, was applied by the lower courts and this Court.6 Under her test, courts should analyze the following factors when determining whether to infer a damages remedy for violations of the Constitution caused by a custom or policy:
(1) the existence and clarity of the constitutional violation itself, (2) the degree of specificity of the constitutional protection, (3) support for the propriety of a judicially inferred damages remedy in any “text, history, and previous interpretations of the specific provision,” (4) “the availability of another remedy,” and (5) “various other factors” militating against a judicially inferred damages remedy.7
In neither of the two consolidated appeals we addressed in Smith did the Court infer a damages claim: in one appeal, we determined that the plaintiff had failed to preserve the argument, and in the other appeal, we remanded for a determination of whether a constitutional violation occurred and, if so, “whether it is one for which a damage remedy is proper.”8
We have addressed the subject of inferred damages claims in only three other cases. In Jones v Powell, we characterized Smith as a “narrow remedy.”9 In that case, the plaintiff sued the city of Detroit as well as the Detroit police officers who had stormed her house and searched it because they falsely believed a fleeing suspect had entered the house. We affirmed the Court of Appeals’ ruling “that our decision in Smith provides no support for inferring a damage remedy for a violation of the Michigan Constitution in an action against a municipality or an individual government employee” because those plaintiffs had adequate alternative remedies under federal law.10 In Lewis v Michigan, we declined to infer a cause of action under the Equal Protection Clause of our Constitution,
B. SEPARATION OF POWERS
I continue to believe that “[t]he critiques of Bivens apply equally to Smith,” which “poses the same separation-of-powers concerns that Bivens does.”21 I cannot see how a damages remedy is required when the text of neither the United States nor the Michigan Constitution mentions it. Rather, both Constitutions vest their respective legislative branches with the legislative power. This power encompasses the power to create causes of action. While there may be a narrow category of cases for which there is no state tort law cause of action and for which damages appear to be the only effective remedy, I am skeptical that these practical concerns justify allowing the courts to exercise the legislative power by implying causes of action when the Legislature has not seen fit to create a statutory cause of action.22
The constitutional separation of powers protects against the threat posed by unrestrained judicial lawmaking. “Lawmaking, the framers of the federal Constitution believed, should be difficult because it poses dangers to liberty; thus, federal statutes require passage by two legislative bodies and approval by the executive to become law.”23 “Our own Constitution, of course, reflects these same requirements.”24 Indeed, our Constitution contains express protection of the separation of powers not contained even in the federal Constitution.25 “[T]hese hedges against hasty lawmaking and the separation of powers . . . were . . . meant to ‘respect[] the people‘s sovereign choice to vest the
Some have suggested, however, that state courts, unlike federal courts, are suited to the task of creating causes of action under our common-law powers, which federal courts lack.28 In declining to extend Bivens, the Supreme Court has noted that it does not have common-law authority.29 This is taken by some as a signal that a common-law court, such as ours, has a free hand to fashion tort-based causes of action for monetary damages. The cause of action would be separate from the constitutional
Putting it in those stark terms underscores the activism inherent in the enterprise. And this view fundamentally misunderstands our common-law powers. As explained more fully later in this opinion, we certainly do not claim that power when it comes to statutes, and there is no history supporting the creation of such torts for violations of the Constitution. It goes well beyond our role as the principal steward of the common law:
Acting in [our capacity as the principal steward of Michigan‘s common law], we have on occasion allowed for the development of the common law as circumstances and considerations of public policy have required. See, e.g., Berger [v Weber, 411 Mich 1; 303 NW2d 424 (1981)]. But as Justice YOUNG has recently observed, our common-law jurisprudence has been guided by a number of prudential principles. See Young, A judicial traditionalist confronts the common law, 8 Texas Rev L & Pol 299, 305-310 (2004). Among them has been our attempt to “avoid capricious departures from bedrock legal rules as such tectonic shifts might produce unforeseen and undesirable consequences,” id. at 307[.]31
We went on to explain that the judiciary has an “obligation to exercise caution and to defer to the Legislature when called upon to make a new and potentially societally dislocating change to the common law” and that separation-of-powers concerns support this cautious approach.32 Indeed, the very concept of the common law defies innovation given that it is defined as “custom.”33
To the extent the majority‘s decision today is grounded on the Court‘s common-law
the Legislature‘s remedy will be adequate if it is that which we would have come up with ourselves. This leaves no guidance whatsoever.34
More importantly, what is the scope of the Court‘s holding—will the violation of any provision of the Constitution result in damages, or only the violation of certain provisions? Although the opinion appears to focus on the provisions in the Declaration of Rights, the opinion also presents its holding in sweeping terms, stating that when the Constitution itself has not delegated to the other branches the authority to weigh those policy concerns, or when the other branches have not stepped in to afford an adequate alternative remedy, our inherent judicial authority requires us to afford a remedy for all constitutional violations . . . .
Ante at 26-27.
While only three justices appear to leave open the possibility that implied causes of action for damages could be found outside the Constitution‘s Declaration of Rights, it is worth explaining why such a view cannot (and should not) garner majority support. Our Constitution, unlike the federal Constitution, contains a host of more technical details that have now become potential tripwires for money-damages claims, including many that would seem to bear little relation to individual rights. Cities and villages, for example, cannot acquire certain public utilities unless the transaction is first approved by the voters.35 Individuals and entities that operate public utilities cannot use various public places to run wire and other utility faсilities without first obtaining a franchise from the pertinent local government.36 Our Constitution establishes a game and fish protection trust fund
and establishes how it shall be
The Court‘s decision today portends a staggering extension of liability that is alien to the incremental and customs-based nature of the common law. The decision cannot be justified as a proper use of common-law authority. Accordingly, I believe that the creation of money-damages claims for constitutional violations is a legislative function. It is therefore a violation of the separation of powers for the Court to step in and create such claims.
II. CONSTITUTIONAL TORTS AS CONSTITUTIONAL INTERPRETATION
Perhaps because of the stunning sweep of today‘s holding, and concerns with the separation of powers, the majority purports to ground its decision in the Constitution itself, suggesting that the remedy crafted today is constitutionally required.39 A cause of action established by the text would arguably avoid the separation-of-powers concerns noted above. But the majority never bothers with any textual analysis and only gestures vaguely at historical practices. Neither text nor history suggest any hidden causes of action for constitutional violations generally, nor do they reveal a cause of action for the provision at issue here, the Due Process Clause.
A. INTERPRETING THE CONSTITUTIONAL TEXT
Some courts and scholars have asserted that looking to the Constitution itself is the proper approach to constitutional torts. The Supreme Court has acknowledged that Bivens simply extended the then-regnant interpretive practice of inferring causes of action from statutes.40 As another textual or historical basis
in that state‘s bill of rights for implying a right to damages for constitutional violations,
finding no such basis.41 Our decision in Lewis was likewise grounded in the text: because the constitutional provision at issue entrusted its implementation to the Legislature, the Court would not infer a damages remedy.42 The Restatement likewise seems to locate the activity of implying damages in the interpretive sphere.43
But to infer causes of action for money damages from the constitutional text requires a contortion of interpretive principles. This contortion was commonplace when Bivens was decided, and the Court extended the practice to the constitutional sphere. At that time, the United States Supreme Court generally read private causes of action into statutes.44 The understanding
But the Court has abandoned
that view,46 and the touchstone of the present test for implied causes of action has been whether the text and structure of a statute displayed the legislature‘s intent to create such a cause of action.47 Therefore, a private cause of action should only be implied from the fair import of the statute‘s text.48 A judicially created private remedy in a statute that does not provide for such a remedy would be a major addition to the statute,
akin to an amendment.49 The present approach has been labeled the presumption against implied right of action
canon of interpretation.50
Our caselaw charts a similar course.51 At one time, we followed the Restatement view and inferred causes of action to further legislative purposes.52 But we have since adopted the view that implied causes of action must arise, if at all, from the statutory text itself and not from vague perceptions of legislative objectives.53 In a 2005 opinion, we noted that the United States Supreme Cоurt had become increasingly reluctant to imply a private cause of action
and had instead focused on the central inquiry [of] whether Congress intended to create, either expressly or by implication, a private cause of action.
54 And, in fact, we said that the United States Supreme Court had apparently moved to a completely textual analysis in determining whether a private remedy exists under a particular statute.
55 We likewise indicated that the criterion for
Nothing in the text of our state Constitution generally allows damages remedies for constitutional violations. Like the federal Constitution, our Constitution does not generally refer to remedies.57 This distinguishes our Constitution from those that contain a remedies clause that expressly entitles individuals to a remedy for violations of those constitutions.58 It is noteworthy that even with such a constitutional provision, at least one state has rejected inferring causes of action for damages.59 Nothing in the text of the provision at issue here, the Due Process Clause, supports a damages remedy: No person shall . . . be deprived of life, liberty or property, without due process of law.
60
Plaintiffs and the majority try to invoke the 1961 constitutional convention records for support, but they point to nothing very useful. The closest they come is that the convention considered—but did not add—the line that [t]his provision [i.e., the Declaration of Rights] shall not be construed to enable the denial to any citizen of any direct and immediate legal remedy in the courts of this state.
61 This is a far cry from the proposition that the drafters intended for damages remedies to be available, if such an argument from unstated intentions were even relevant. This language was eventually reflected in the section on the civil rights commission: Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state.
62 Thus, to the extent the language even appears in the Constitution, it involves only a specific section not relevant here. If anything, to the extent that the language was considered but not placed in the Declaration of Rights, that would seem to weigh in favor of concluding that the convention rejected the notion that the Declaration would keep undiminished the
Finally, it is not at all clear that the language is referring to money damages for constitutional violations. Bivens had not yet been decided at the time of the convention, and we had no history of providing damages for constitutional violations at that time. There is no reason to believe that the convention delegates and the ratifying public had the clairvoyance to anticipate the coming caselaw creating those damages remedies. And even if they had, they left no marks on the Constitution itself approving such remedies.64
The majority‘s textual analysis instead amounts to the proposition that the very nature of a right implies a remedy. This proposition does have some intuitive pull and a distinguished provenance. In Marbury v Madison, Chief Justice Marshall proclaimed that the government of law, and not of men,
will cease . . . if the laws furnish no remedy for the violation of a vested legal right.
65 But it is equally clear that a government of laws requires that those remedies be established and enforced by the proper legal process. That is why, in Marbury, despite finding that William Marbury‘s rights had been violated, the Court left him without a remedy: Congress had not properly granted the Court jurisdiction to hear the case in the first place, and thus no remedy could be crafted or enforced fоr the violation of Marbury‘s rights.66
Our implied-rights-of-action cases identify another area of the law in which there is not a damages remedy for every legal wrong.
67
We, too, have explained that not all rights are vindicated in court:
But it is said that this conclusion will leave parties who have rights, in many cases, without remedy. Practically, there are a great many such cases, but theoretically, there are none at all. All wrongs, certainly, are not redressed by the judicial department. A party may be deprived of a right by a wrong verdict, or an erroneous ruling of a judge, and though the error may be manifest to all others than those who are to decide upon his rights, he will be without redress. A person lawfully chosen to the legislature may have his seat given by the house to another, and be thus wronged without remedy. A just claim against the State may be rejected by the board of auditors, and neither the governor nor the courts can give relief. A convicted person may conclusively demonstrate his innocence to the governor, and still be denied a pardon. In which one of these cases could the denial of redress by the proper tribunal constitute any ground for interference by any other authority? The law must leave the final decision upon every claim and every controversy somewhere, and when that decision has been made, it must be accepted as correct.68
This also reflects the limited scope of the common-law principle, ubi jus, ibi remedium—
69 One scholar has observed that, at the time of the country‘s founding and in the early nineteenth century (when Michigan was formed), this principle was more of a the principle that where one‘s right is invaded or destroyed, the law gives a remedy to protect it or damages for its loss.
platitude
than black letter legal doctrine
because a plaintiff had a cause of action at law or in equity only if judicial relief was available through a particular form of proceeding.
70 Writs available to plaintiffs were not invented to meet each new wrong.71
And historically—at least until the twentieth century—individuals generally looked to the legislative branch for protection and fulfillment of rights.72 One court, for example, noted that the Second Amendment,
Consequently, I find nothing in the text of the Constitution that would remotely justify the creation of a cause of action for money damages in these circumstances.
B. HISTORICAL PRACTICE
The majority also suggests that there is a historical practice of inferring causes of action in the Constitution and allowing damages remedies.74 Some courts and scholars have pointed to 19th century caselaw and, even further back, to English common-law cases as support.75 But these cases were run-of-the-mill tort actions in which the constitutional arguments were incidental to the cause of action and entitlement to damages. These cases were common-law trespass actions in which the governmental defendant attempted to defend his or her actions by claiming that those actions were legally justified. The negate a defendant‘s plea of legal justification.
76 In many cases, the governmental official would claim immunity for his or her action under federal law—the Constitution—but would lose that immunity if the official‘s action was unconstitutional.77
Plaintiffs point to such a case from our Court, Bishop v Vandercook, as evidence that we have long recognized constitutional torts.78 But Bishop was a traditional common-law action. In Bishop, the Governor had issued an order sending state troops to help crack down on bootleggers who were lawless and viciously inclined drivers of automobiles[.]
79 A few months later, with troops in place, the Governor authorized them to place a log across Dixie Highway to stop travelers.80 He required that warnings be given and precautions be taken to allow
good citizens
fired a signal.
Other troopers placed the log across the highway and then used flashlights and red lanterns to signal the driver to stop, but without success. The plaintiff crashed into the log, and liquor was subsequently found in his car.82
The plaintiff brought a tort action to recover damages for harm to the car and personal injuries and won a money verdict.83 The claim was that the defendants’ actions constituted a purposeful and wilful trespass.
84 Thus, from the start, Bishop is not the same as Smith: Bishop was never an action under the Constitution. In fact, the Constitution barely factors into the case aside from the stray line of dicta that plaintiffs have seized upon. Instead, the issue was whether the defendants could claim immunity because they were acting under direction of the Governor.85 Specifically, they cited a statute that allowed troops to be dispatched to aid civil authorities—the command officer was to be subject to the general direction of the sheriff or other civil officer who shall require his aid.
86 While serving, troops shall always be amenable to the civil authorities as represented by the governor, and shall be privileged from prosecution by the civil authorities, except by direct order of the governor, for any acts or offenses alleged to have been committed while on such service.
87
The sum of the Court‘s holding was the rejection of the defendants’ contention that the State troops in time of peace, and in actual service in aid of civil authority, are privileged from civil accountability for wrongs committed, except by direct order of the governor.
88 We read the statute as simply stay[ing] interference by the civil authorities, but . . . not clos[ing] the courts to persons wronged by military lawlessness.
89 In our analysis, we stated that [n]o legislative enactment can confer power upon the chief executive of the State to render the military immune from civil responsibility for wrongs done to citizens in time of peace, or grant to the military security beyond that accorded the civil officers in whose aid they act.
90
The Court also mentioned that the Constitution subordinated the military to civilian authority and could be used only to aid that authority.91 The Court then made the statement used by plaintiffs here:
The emphatic provision of the Constitution (Art. 2, § 6) of the State, that:
the military shall in all cases and at all times be in strict subordination to the civil power,is not an empty phrase, but the wisdom of the ages expressed in a succinct mandate. Any transgression of this fundamental law by military officers renders them liable to respond in damages for injury done no matter how high the command to so act can be traced. Mitchell v. Harmony, 13 How. (U. S.) 115; Bates v. Clark, 95 U. S. 204.92
Immediately following this statement, the Court concluded that the acts at issue were not authorized by the Governor.93 The Court made clear the holding was simply that the defendants could be liable under tort law.94
Bishop therefore does not stand for the proposition that monetary damages can be claimed in actions arising under the Constitution. In proper context, the line plaintiffs rely on merely meant that the military officers could be liable for damages in a common-law tort action if their actions excеeded civil authority. The source of the liability did not flow from the Constitution—it does not arise from the provision subordinating the military. Rather, the military officers could be liable based on tort law, just like anyone else. The only difference was the potential defense that military members might raise of following orders.
This conclusion is further confirmed by the sources Bishop cited: Mitchell v Harmony95 and Bates v Clark.96 Both cases concerned actions for trespass.
In the former, a merchant trailing United States troops during the Mexican-American War was ordered to remain with the troops—his request to depart from the army was denied.97 Subsequently, the plaintiff‘s items were captured by the Mexican army and he sued the federal army officer who had earlier detained him.98 The Court held that the officer could be liable.99 In Bates, the plaintiff‘s whiskey was confiscated by military officers and the Court held that the officers can no more protect themselves than civilians in time of peace by orders emanating from a source which is itself without authority.
100 A statute allowed military officers to seize liquor in Indian country, but the plaintiffs were not in Indian country when their liquor was seized. The Court observed that the officers’ good-faith belief that the plaintiffs were in Indian country might excuse them from punitive damages but that it would not preclude the action itself.101 In citing these cases, Bishop was not establishing a rule allowing damages for violations of the Constitution—neither case involved the Constitution at all. And not surprisingly, Bishop itself has, as far as I can tell, never been cited for that proposition either.
The earlier English common-law cases are even further from the mark. In Wilkes v Wood, for example, the plaintiff sued for trespass when a government officer entered the plaintiff‘s house, broke his locks, and seized his papers.102 As the court said, the present cause chiefly turned upon the general question, whether a Secretary of State has a power to force persons houses, break open their locks, seize their papers, &c. upon a bare suspicion of a libel by a general warrant, without name of the
103 Under neither the English constitution nor statutory law was there legal authority . . . to justify the action.
104 Although the court emphasized the dangers of allowing the government to have such authority, it is clear that the case was a typical trespass action that the plaintiff could have brought against any private individual—the only difference being that the defendant could defend based on alleged legal authority for his actions.105 And, of course, another critical distinction between these cases and Bivens and Smith is that they were decided under the unwritten and amorphous British constitution.106 The significance of the written constitution, created in our states and then the national government, represented something profoundly new, the significance of which had to be worked out over time.107
It has been recognized, therefore, that these types of cases do not stand for the proposition that courts have historically implied causes of action in the constitutional text. The cause of action in these cases arose from the common law.108 And those actions were never understood to be coterminous with constitutional provisions, i.e., a common-law action might or might not adequately redress a constitutional violation.109 In addition, the framers of the state and federal Constitutions would have also recognized that the legislature could repeal
expectation of the avаilability of such common-law actions could be interpreted as a constitutional requirement that such actions exist.111 Even so, the expected applications of constitutional text, not reflected in the text itself, are usually entitled to little or no interpretive weight.112
C. CONCLUSION
For these reasons, nothing in the text or history of our Constitution supports finding a general cause of action for damages based on constitutional violations or a specific cause of action for such damages regarding the provision at issue here, the Due Process Clause. Consequently, in allowing such claims, I believe that Smith was wrongly decided and that the majority compounds this error today by broadening Smith.
Seeking to avoid this conclusion, the majority notes that lawsuits can be filed to enjoin violations of the Constitution—I agree—and thus the majority contends
There is obviously a distinction between a judicial decree invalidating unconstitutional governmental action and the adoption of judicially created doctrines that effectively serve as de facto statutory enactments to implement
Const 1963, art 1, § 2 . The former is classic judicial review recognized as a core judicial function since, at least, the decision in Marbury v Madison, 5 US (1 Cranch) 137; 2 L Ed 60 (1803). The latter is an improper usurpation of legislative authority. To fail to heed this limitation on judicial power would be to fail “to maintain the separation between the Judiciary and the other branches.” [Lewis, 464 Mich at 788-789 (citation omitted).]
A suit for an injunction seeks to prevent or end a constitutional violation; a cause of action for money damages seeks to remedy past constitutional violations. The former have been available from the start of constitutional litigation, whereas the latter are a creature of the twentieth-century judiciary.
Critically, the injunctive remedy arises from an equitable action seeking to invoke a court‘s equitable powers rather than from a legal cause of action grounded in the constitutional text.114 As the Supreme Court has noted, “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.”115 For that reason, the Court held that a suit for an injunctive remedy to enforce a constitutional provision—the Supremacy Clause in that case—did not “rest[] upon an implied right of action contained in the” constitutional text.116 Accordingly, recognition of the ability to invoke a court‘s equitable powers to prevent or restrain constitutional violations is not inconsistent with a rejection of inferring causes of action for damages from the constitutional text.
III. STARE DECISIS
Given this analysis, I believe not only that the majority‘s expansion of Smith is wrong but also that Smith itself should be overruled. In addition to concluding a precedent was wrongly decided—which I have established above with regard to Smith—we must
examine three other factors before overruling it: (1) whether the rule has proved not to be practically workable, (2) whether reliance interests in the
With regard to the first factor, Smith defies practicable workability. Critically, until the majority‘s thunderbolt today, a majority of the Court has never even agreed on a test for discerning when сauses of action can be inferred. And although the Court of Appeals, and a plurality of this Court in Mays, may have applied Justice BOYLE‘s multifactor approach, that approach is awash in policy considerations that leave parties and courts no clear guidance on whether a cause of action will be inferred in any given case. Most clearly, the open-ended final factor—allowing consideration of “various other factors”—gives courts permission to consider anything they would like to create a cause of action.118
With regard to the second factor, any reliance interests must be greatly diminished by the fact that a majority of this Court has never inferred a cause of action for money damages under Smith—not even in Smith itself. As the United States Supreme Court recently explained in the criminal law context, “Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so
no reliance interests can be affected by forthrightly acknowledging reality.”119 In addition, the general rule of allowing monetary damages is diffuse enough—in that it applies to all relevant constitutional rights—that it is difficult to see what institutions have formed or behavior has changed in reliance upon it. That is, the possibility of obtaining damages for constitutional violations does not seem to have led individuals to enter into relationships or associations or engage in any activities that would be disrupted by overruling Smith.
Finally, the third factor also weighs in favor of overruling Smith. As discussed, there was no precedent from this state supporting Smith. To the extent it could claim any supporting authority, that authority—Bivens—has since been severely undercut. A damages claim will not be inferred in federal court if “there is any reason to think that Congress might be better equipped to create a damages remedy.”120 Courts will rarely, if ever, be better placed than a legislature to create damages remedies.121
Accordingly, I would overrule Smith and put an end to our usurpation of the Legislature‘s authority to create causes of action for damages for constitutional violations.
IV. APPLICATION OF SMITH
As a last consideration, it is worth addressing how this case would have been
justices in the current majority noted that this test was “persuasive.”122 The majority opinion in this case provides nothing of substance to explain why the test has somehow become less persuasive. The majority nonetheless casts it aside, perhaps because applying it here would not yield a cause of action.
The first question under the test is whether a custom or policy caused the constitutional violation.123 Defendant, the Unemployment Insurance Agency, argues there was no custom or policy because nothing required it to intercept tax refunds or garnish wages—it simply employed software that identified potential fraud. I will assume for present purposes that this requirement is satisfied because, even if it was, the agency would still prevail on the other factors. First, I will address “the degree of specificity of the constitutional protection[.]”124 While the Due Process Clause, as interpreted by the courts, covers a broad swath of territory, the general procedural components of the clause are clear.125 But how those requirements apply in any given case is a different matter. As the Court of Appeals recognized in the present case, “due process is flexible and the procedural protections that it offers may vary depending on the circumstances . . . .”126 Indeed, Justice BOYLE herself indicated that the Due Process Clause does not offer sufficiently clear
protection.127 Thus, the clarity of the constitutional provision does not support a damages remedy.
I do not find the “existence and clarity of the constitutional violation itself” to be sufficient to support plaintiffs’ argument in this case.128 Plaintiffs received notices in the form of letters, which detailed how to appeal; both plaintiffs here had the opportunity to and did, in fact, file an appeal. Plaintiffs’ amended complaint stated that the lack of due process was in the use of the automated decision-making system because it determined guilt without meaningful notice or opportunity to be heard before imposition of the penalties. If the penalties were truly imposed before notice and a hearing, then this might state a due-process claim. But it is not clear that this is the case here. In general, the automated system makes the initial determination, but the amended complaint acknowledged that notice was sent. The problem, according to the amended complaint, was that the notice was practically useless because it was sent through the online unemployment system, which former recipients of unemployment benefits were unlikely to check. As the agency‘s brief notes, however, plaintiffs here elected to receive notices through the online account. The amended
violation. But plaintiffs received numerous notices and had a number of opportunities to object to the agency‘s action.
The next factor is the “support for the propriety of a judicially inferred damages remedy in any text, history, and previous interpretations of the specific provision[.]”129 As discussed above, nothing in the text or history of the Due Process Clause supports a damages remedy. With regard to precedent, we have never inferred damages remedies for procedural due-process violations. And the United States Supreme Court likewise has never “extended a Bivens remedy to an alleged substantive or procedural due process violation of the Fifth Amendment by a federal official.”130
The next consideration is “the availability of another remedy[.]”131 In this regard, the United States Supreme Court‘s decision in Schweiker v Chilicky is instructive.132 In that case, the Court rejected a Bivens claim involving the federal Due Process Clause.133 The plaintiffs were individuals whose Social Security disability benefits were terminated—most of the plaintiffs appealed and were restored benefits with full retroactivity, while the remaining plaintiff filed a new application, was granted benefits, and received almost all the unpaid benefits for the period he had been denied benefits.134 As here, the plaintiffs’
due-process claims centered on the allegedly unconstitutional procedures by which the agencies wrongfully terminated their benefits.135 In rejecting the claim, the Court noted the comprehensive review procedures available to the plaintiffs through the relevant legislation. The process enabled claimants to appeal wrongful terminations with new evidence and arguments along the way, ending in judicial review (which could include review of constitutional claims).136
The point of contention in Schweiker was that the review process enacted by Congress did not provide for money damages when unconstitutional conduct led to the wrongful denial of benefits.137 Looking to its caselaw, the Court explained that Congress‘s failure to provide for “ ‘complete relief’ ” was not a reason to infer a damages remedy.138 The bare fact that some injuries would go unredressed was not determinative because Congress had created an elaborate system. “[T]he presence of alleged unconstitutional conduct that is not separately remedied under the statutory scheme” did not “imply that the statute has provided ‘no remedy’ for the
of interests.140 Moreover, the harm for which the plaintiffs sought damages—“consequential damages for hardships resulting from an allegedly unconstitutional denial of a statutory right”—could not “be separated from the harm resulting from the denial of the statutory right.”141 Summing up, the Court stated:
We agree that suffering months of delay in receiving the income on which one has depended for the very necessities of life cannot be fully remedied by the “belated restoration of back benefits.” The trauma to respondents, and thousands of others like them, must surely have gone beyond what anyone of normal sensibilities would wish to see imposed on innocent disabled citizens. Nor would we care to “trivialize” the nature of the wrongs alleged in this case. Congress, however, has addressed the problems created by state agencies’ wrongful termination of disability benefits. Whether or not we believe that its response was the best response, Congress is the body charged with making the inevitable compromises required in the design of a massive and complex welfare benefits program. . . . Congress has discharged that responsibility to the extent that it affects the case before us, and we see no legal basis that would allow us to revise its decision.[142]
The Court of Appeals in the present case distinguished Schweiker on the unpersuasive ground that it “did not involve highly egregious facts such as those alleged in the instant case.”143 In particular, the Court of Appeals noted that the plaintiffs in Schweiker were simply denied benefits whereas plaintiffs here had their own property taken. This distinction, even if true, is irrelevant. The egregiousness of the conduct is not a factor that this Court or the United States Supreme Court has ever considered or endorsed.
Moreover, it is unclear whether the Court of Appeals was correct: are disability claimants who depended on government benefits to survive in a better position to weather the termination of those benefits than the plaintiffs here are in to withstand garnishments and collection actions? It is certainly possible that the disabled plaintiffs in Schweiker were even more deeply affected by the wrongful denial of benefits than plaintiffs in this case.
As in Schweiker, the procedures available to plaintiffs in the present case were extensive. Unemployment claimants can protest any determination made with regard to recoupment of overpayments.144 If a protest is made—or the claimant asks for a hearing before an administrative law judge—the agency will review its decision and can affirm, modify, or reverse it, or send the protest for an administrative hearing.145 “The Agency can also review a prior determination in the absence of a protest so long as it does so within” a certain period.146 Even if the protest is not
decision, claimants have yet another opportunity to prevail within the agency by appealing to the Michigan Compensation Appellate Commission.150 From there, the claimant can appeal in the circuit court and can seek further appellate review of any decision rendered by the court.151
This elaborate scheme provides ample opportunities for the agency to correct any mistakes internally before judicial review is invoked. It is at least as extensive as the Social Security disability review process discussed in Schweiker. Indeed, the agency here used this redetermination process to undo its erroneous decisions within just a few months of plaintiffs’ challenges.152 The Court of Appeals here required far more than the United States Supreme Court ever has when deciding that the statutory framework in this case failed to provide a suitable alternative remedy because it did not allow for monetary damages or a way to raise constitutional due-process challenges. Under Schweiker and the caselaw discussed there, it does not matter if the alternative remedy is incomplete and fails to provide monetary damages. Moreover, the agency judges handling Social Security disability reviews also lack the power to adjudicate constitutional challenges.153 For these reasons, I believe that the alternative remedies here were adequate.
With regard to Justice BOYLE‘s last factor, I see no other “factors” relevant to this case that would justify a damages remedy. I therefore believe that a damages remedy cannot properly be inferred under this test. Perhaps this clear result explains why the majority adopts a brand new test under which money damages will almost always be available.
V. CONCLUSION
The Court‘s holding today lacks any basis in our common-law powers or the constitutional text. It represents a gross overreach given that the judicial branch has now seized legislative power to fashion remedies for all manner of constitutional violations. The Constitution, our foundational document and source of law, has been transformed into a wellspring of potential new claims against the state and its political subdivisions. And under today‘s ruling, the Legislature is largely powerless to act: it can create remedies for constitutional
David F. Viviano
Brian K. Zahra
GRANT BAUSERMAN, KARL WILLIAMS, and TEDDY BROE, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees, v UNEMPLOYMENT INSURANCE AGENCY, Defendant-Appellant.
No. 160813
STATE OF MICHIGAN SUPREME COURT
CLEMENT, J. (dissenting).
Because plaintiffs do not ask us to reconsider the test Justice BOYLE set out in her partial concurrence in Smith v Dep‘t of Pub Health, 428 Mich 540; 410 NW2d 749 (1987), and replace it with a more lenient test, I would simply apply that test to their claims. For the reasons stated in Part IV of Justice VIVIANO‘s dissent, under that test, I do not believe that we should infer a damages remedy in the instant case. Therefore, I dissent.
Elizabeth T. Clement
Notes
Under the common law of England, where individual rights . . . were preserved by a fundamental document (e.g., the Magna Carta), a violation of those rights generally could be remedied by a traditional action for damages. The violation of the constitutional right was viewed as a trespass, giving rise to a trespass action. [Widgeon v Eastern Shore Hosp Ctr, 300 Md 520, 525-527; 479 A2d 921 (1984), discussing Wilkes v Wood, 98 Eng Rep 489; Lofft‘s 1 (1763), Huckle v Money, 95 Eng Rep 768; 2 Wils 205 (1763), and Entick v Carrington, 19 How St Tr 1029 (1765).]
See also Moresi v Louisiana, 567 So 2d 1081, 1092 (La, 1990); Wurman, Qualified Immunity and Statutory Construction, 37 Seattle U Law Rev 939, 987 (2014) (“[T]he common law expected officers to be mulcted in damages for their errors in judgment. Some courts explicitly stated that the law expected that officers would be grievously punished for such errors.“).
This fact sets our Constitution apart from its federal counterpart because the federal Bill of Rights, proposed by our nation‘s first congress in 1789, was a series of amendments of the original federal Constitution. See, e.g., National Archives and Records Administration, The Bill of Rights: How Did it Happen? <https://www.archives.gov/founding-docs/bill-of-rights/how-did-it-happen> (accessed July 13, 2022) [https://perma.cc/GPK7-2NUU]; National Archives and Records Administration, The Bill of Rights: A Transcription <https://www.archives.gov/founding-docs/bill-of-rights-transcript> (accessed July 13, 2022) [https://perma.cc/T5XM-66QT]. Smith v Dep‘t of Pub Health, 428 Mich 540; 410 NW2d 749 (1987).We have stated that expansion of Bivens is “a ‘disfavored’ judicial activity,” and have gone so far as to observe that if “the Court‘s three Bivens cases [had] been . . . decided today,” it is doubtful that we would have reached the same result. And for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens. [Mays, 506 Mich at 257 (VIVIANO, J., concurring in part and dissenting in part) (alteration in original), quoting Hernandez v Mesa, 589 US 93, 140 S Ct 735, 742-743; 206 L Ed 2d 29 (2020).]See also Egbert, 596 US at ___ (opinion of the Court); slip op at 17 (noting same). Justices Clarence Thomas and Neil Gorsuch have called for overruling Bivens. See id. (Gorsuch, J., concurring); slip op at 3 (“I would only take the next step and acknowledge explicitly what the Court leaves barely implicit” and overrule Bivens.); Hernandez, 589 US at 93, 140 S Ct at 750 (Thomas, J., concurring) (“I write separately because, in my view, the time has come to consider discarding the Bivens doctrine altogether. The foundation for Bivens—the practice of creating implied causes of action in the statutory context—has already been abandoned. And the Court has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny were wrongly decided.“).
Although there is some ambiguity on this point in the majority opinion, the majority does not appear to rely on this rationale, instead purporting to find the right to a damages remedy as inherent in the Constitution itself. See note 39 of this opinion (discussing the majority‘s justifications for its holding). Nonetheless, because no such right exists in the Constitution (as explained below), the majority‘s action must ultimately rest on the judicial creation of a freestanding tort. It is therefore necessary to examine our power in this regard. Numerous common-law courts have considered their power to create torts for constitutional violations independent from any such cause of action arising from the constitutional text. See, e.g., Spackman ex rel Spackman v Bd of Ed of Box Elder Co Sch Dist, 16 P3d 533, 537-538; 2000 UT 87 (2000) (explaining that “[i]n the absence of applicable constitutional or statutory authority” for a right to damages for constitutional violations, “Utah courts employ the common law,” and “a Utah court‘s ability to award damages for violation of a self-executing constitutional provision rests on the common law“); cf. Cantrell v Morris, 849 NE2d 488, 505-507 (Ind, 2006) (recognizing that a damage remedy might “arise[] under the state Constitution itself or under state cоmmon law tort doctrines” but finding “little practical significance” between the two modes and holding that any damages remedy would be limited by statutory immunities for governmental actors); Beaumont v Bouillion, 896 SW2d 143, 150 (Tex, 1995) (rejecting the argument that “we may look to the Constitution to define the element of duty for a Texas common law cause of action“).
in every circumstance[.]Whether this proves true remains to be seen; the majority opinion offers no such assurances.
rights-giving provisions of the Constitution, it never expressly limits its reasoning to those provisions. Rather, three of the four justices in the majority decline to decide whether the holding applies outside of violations of the Declaration of Rights or other possible rights in the Constitution. Even if the holding is eventually limited to violations of constitutional
rights,those three justices never explain how a court is to determine whether a provision grants a right for purposes of the majority‘s holding. For example, does a resident have a
rightto vote on whether a city can acquire public utilities? See
Inherent in the judiciary‘s power is the ability to recognize remedies, including monetary damages, to compensate those aggrieved by the state . . . for violating the Michigan Constitution . . . .), ante at 26-27 (
But when the Constitution itself has not delegated to the other branches the authority to weigh . . . policy concerns, or when the other branches have not stepped in to afford an adequate alternative remedy, our inherent judicial authority requires us to afford a remedy for all constitutional violations . . . .), and ante at 7 (
[T]his Court retains the authority—indeed the duty—to vindicate the rights guaranteed by our Constitution.), with ante at 18-19 (
Our holding today is grounded in the constitutional rights relied on by plaintiffs as well as our authority and duty to say what the law is.), and ante at 21 (
What plaintiffs ask of us is not to make new law under the Constitution but, rather, to enforce the Constitution itself.). One would hope that with such a momentous holding, the majority would take greater pains to locate and specify the grounds for its holding rather than serving up vague platitudes. In any case, for the reasons addressed in this dissent, the majority errs no matter which basis its opinion ultimately employs.
[M]ost California decisions issued during the past two decades . . . have viewed the determinative question as whether an action for damages exists in (or can be inferred from) the constitutional provision at issue. Accordingly, most of the recent California decisions expressly focus their analysis upon whether the provision at issue was intended, either expressly or impliedly, to afford relief in damages.). Some who disagree that Bivens can be justified by constitutional interpretation have nonetheless noted that Bivens purported to ground its decision as an interpretation of the Constitution. Monaghan, Forward: Constitutional Common Law, 89 Harv L Rev 1, 24 (1975) (
The majority opinion [in Bivens] apparently derives the right to damages from the fourth amendment itself. But, unless the Court views a damage action as an indispensable remedial dimension of the underlying guarantee, it is not constitutional interpretation, but common law.) (citations omitted).
When a legislative provision [which is defined to include the Constitution] protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.). Although the Restatement suggests that the action is a tort, the comments indicate that the process of inferring a civil remedy is tied to interpretation. The Restatement centers the analysis on discovering legislative intent, even though the effectuation of that intent might be a court-created tort cause of action. Restatement, § 874A, comments c and d, p 302 (
If thе court determines that the legislative body did actually intend for civil liability to be imposed or not imposed, whether the intent is explicit or implicit, then the court should treat the situation as if it had expressly so provided. . . . If this was the intent of the legislative body, a study of the text of the provision, including the title and preamble, if any, will often disclose the fact. Tracing the legislative history may sometimes prove helpful. Some courts give careful attention to this source, while others decline to allow it to be considered at all. . . . If the court has reached the conclusion that the legislative body did actually have the intent either to establish a civil remedy to protect and enforce the right or to limit the relief to that expressly provided for in the legislative provision, the issue is settled, and the court is warranted in declaring that it is complying with the legislative intent.) (paragraph structure omitted); but see Katzberg, 29 Cal 4th at 325 (suggesting that the Restatement calls for the
exercise [of] . . . authority over the common lawto,
in appropriate circumstances, recognize a tort action for damages to remedy a constitutional violation).
Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be implied by the mere existence of a statutory or constitutional prohibition.), quoting Correctional Servs Corp v Malesko, 534 US 61, 75; 122 S Ct 515; 151 L Ed 2d 456 (2001) (Scalia, J., concurring).
We therefore begin (and find that we can end) our search for Congress‘s intent with the text and structure of Title VI.).
What started out as a presumption in favor of implied rights of action has become a firm presumption against them.).
Where a penal statute is silent concerning whether a violation of its provisions should give rise to a civil remedy, courts will infer a civil remedy for the violation), quoting Prosser & Keeton, Torts (5th ed), § 36, p 222.to further the ultimate policy for the protection of individuals which they find underlying the statute, and which they believe the legislature must have had in mind.
The Constitution generally makes no reference to remedies.); cf. Hill, Constitutional Remedies, 69 Colum L Rev 1109, 1132 (1969) (
It may fairly be assumed that the founding fathers did not contemplate a new species of constitutional tort.). Of course, there are some exceptions. For example,
[p]rivate property shall not be taken for public use without just compensation therefore being first made or secured in a manner prescribed by law.
[N]or shall private property be taken for public use, without just compensation.).
Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.); see also Phillips, The Constitutional Right to a Remedy, 78 NYU L Rev 1309, 1310 (2003) (noting that the remedies clause
expressly or implicitly appears in forty state constitutions).
All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.); Bouillion, 896 SW2d at 147 (declining to find an implied private right of action for damages under various provisions of the state constitution).
Where the Legislature has considered certain language and rejected it in favor of other language, the resulting statutory language should not be held to explicitly authorize what the Legislature explicitly rejected.).
A civil damage remedy cannot be implied for a violation of the State constitutional provision unless the provision is self-executing . . . .); Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S Cal L Rev 289, 292 (1995) (arguing that Bivens could be justified by the self-executing nature of constitutional provisions). A self-executing provision is one that
Detroit v Oakland Circuit Judge, 237 Mich 446, 451-452; 212 NW 207 (1927) (citation omitted), such thatsupplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced,
it takes effect immediately, without the necessity for supplementary or enabling legislation,Brown, 89 NY2d at 186. But as the Vermont Supreme Court has explained,
The fact that the constitutional provision is self-executing means only that the rights contained therein do not need further legislative action to become operative. It does not necessarily mean that monetary damages is the proper remedy for a violation.Shields v Gerhart, 163 Vt 219, 227-228; 658 A2d 924 (1995).
Yet Marbury does not establish that the individual‘s protection must come in the form of a particular remedy. Marbury, it should be remembered, lost his case in the Supreme Court. The Court turned him away with the suggestion that he should have gone elsewhere with his claim.); Colegrove v Green, 328 US 549, 556; 66 S Ct 1198; 90 L Ed 1432 (1946) (opinion by Frankfurter, J.) (
The Constitution has many commands that are not enforceable by courts because they clearly fall outside the conditions and purposes that circumscribe judicial actions.); Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Calif L Rev 933, 970-971 (2019) (
Critics routinely pillory the Supreme Court‘s retreat from Bivens . . . as [a] betrayal[] of Marbury‘s promise of an individually effective remedy for every violation of an individual right. But Marbury, as properly interpreted in the context of our tradition, made no such promise. The Supreme Court awarded no remedy to William Marbury. It is not clear that any other court would have done so either.) (citations omitted).
[I]t is simply untenable that there must be a judicial remedy for every constitutional violation.); New Law, 104 Harv L Rev at 1786 (
But the existence of constitutional rights without individually effective remedies is a fact of our legal tradition, with which any theory having descriptive pretensions must come to terms.).
Notwithstanding the oft-recited platitude ubi jus, ibi remedium, if no form of action afforded judicial relief, there was no remedy regardless of whether it could be said that there was a right.).
[d]uring a republican regime, which had its origins in the initial state constitutions and predominated throughout the nineteenth century, rights were secured primarily through representative institutions and the political process, particularly through the passage of legislative statutesand that
[n]ot until the middle of the twentieth century can we identify the emergence of a judicialist regime); Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill and London: The University of North Carolina Press, 1998), pp 301-302 (
Reform-minded Americans were thus committed to equity as a basis of law, but by resting their plans on legislative enactment they at the same time denied the judicial discretion that made equitable interpretations necessary and possible. . . . Not the courts but only the legislatures could redress the grievances of the people, said a New Jerseyite in 1781,); but see Wood, Power and Liberty: Constitutionalism in the American Revolution (New York: Oxford University Press, 2021), ch 6 (noting the fear of judicial power but explaining that it began to be seen as a check upon the legislature in constitutional matters).because they are the representatives of the people.. . . Legislatures should be the sole source of law.
a test rooted in the Second Amendment‘s text, as informed by history).
Bivens was supported by the Framers’ expectations that trespass actions against officials would be a means of implementing the Constitution.); Vladeck, The Inconsistent Originalism of Judge-Made Remedies Against Federal Officers, 96 Notre Dame L Rev 1869, 1871 (2021) (noting the
) (citation and emphasis omitted); Vladeck, The Disingenuous Demise and Death of Bivens, 2019-2020 Cato Sup Ct Rev 263, 267-268 (2020) (noting the early United States Supreme Court caselaw); Baker, The Minnesota Constitution as a Sword: The Evolving Private Cause of Action, 20 Wm Mitchell L Rev 313, 322 (1994) (long historyof challenging completed unconstitutional conduct by federal officers, including the robust regime of judge-made damages actions that persisted well into the twentieth century in both state and federal courts
Other states have grounded the right to sue for constitutional violations in the common law of England.).
The structure of these pre-Bivens cases was quite simple: The ultimate issue before the court concerned the federal Constitution, but standing was conferred by the vertically-pendent state law cause of action. Plaintiff would sue defendant federal officer in trespass; defendant would claim federal empowerment that trumped the state law of trespass under the principles of the supremacy clause; and plaintiff, by way of reply, would play an even higher supremacy clause trump: Any federal empowerment was ultra vires and void because of Fourth Amendment limitations on federal power itself. If, but only if, plaintiff could in fact prove that the Fourth Amendment had been violated, defendant‘s shield of federal power would dissolve, and he would stand as a naked tortfeasor.).
As these cases demonstrate, a federal official was protected for action tortious under state law only if his acts were authorized by controlling federal law.); Kian, The Path of the Constitution: The Original System of Remedies, How it Changed, and How the Court Responded, 87 NYU L Rev 132, 135 (2012) (To make out his defence he must show that his authority was sufficient in law to protect him.. . . Since an unconstitutional act, even if authorized by statute, was viewed as not authorized in contemplation of law, there could be no immunity defense.
Those who suffered a violation of their rights were able to bring suit, in common law or equity, against the responsible agent. . . . [I]f that agent did something unconstitutional, he would have no legally cognizable defense for violating the plaintiff‘s rights.); New Law, 104 Harv L Rev at 1781 (
Sovereign immunity and related doctrines generally barred direct suits against the government. In many cases, a plaintiff denied relief from the sovereign could seek alternative redress from the official through whom the government had acted; a tradition arose under which an official who pleaded a defense of official authority would be); Constitutional Remedies, 69 Colum L Rev at 1122-1123 (strippedof that shield when his conduct violated the Constitution, and hence held liable like a private tortfeasor.
In mitigation of the rigors of the doctrine of sovereign immunity, the view developed that the governmental officer acting under a void statute, or outside the bounds of a valid statute, may be regarded as stripped of his official character, and answerable, like any private citizen, for conduct which, when attributable to a private citizen, would be an offense against person or property.). Some of the cases commonly cited by proponents of Bivens, such as Little v Barreme, 6 US (2 Cranch) 170; 2 L Ed 243 (1804), were trespass actions in which the defense did not implicate any constitutional issues. See generally The Path of the Constitution, 87 NYU L Rev at 147 (noting that Little did not involve constitutional rights but simply
affirmed a dynamicthat the
government could not exercise power not delegated to it). It is difficult to see how such a case could stand for the proposition that the founders expected that damages remedies would be available through tort actions when a federal officer violated the Constitution.
Again, in Entick v. Carrington, 19 How. St. Tr. 1029 (1765), the plaintiff brought a trespass action against the King‘s messengers for unjustifiably entering his house and seizing his books and papers, and the jury awarded damages to the plaintiff. Lord Camden, after a lengthy historical review, upheld the damage award on the ground that the warrant to seize the papers was) (emphasis added).illegal and void . . . .
history and form give rise to ambiguities and uncertaintiesand that the British constitution can refer to
a body of laws (statutes and common law), conventions and practices that have developed over time).
Although Americans were convinced that constitutions were decidedly different from legislation, the distinction was not easy to maintain. They hadn‘t yet imagined what a constitution meant.); Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge: Belknap Press of Harvard University Press, 2018), pp 3, 5 (
When the Constitution was born, it was