Lead
At issue in this case is the proper construction of MCL 15.602, a statute that limits the restrictions public employers may make regarding employee residency. While the statute does not allow an employer to require an employee to live in any specific geographic area, it does permit a public employer to require that an employee reside within a distance of 20 miles or more from the public employer’s nearest boundary.
Plaintiff alleges that he was denied employment with defendant because the city imposed a residency requirement and measured the requirement in “road miles” rather than “radial miles.”
We hold that the 20-mile distance permitted in MCL 15.602(2) is to be measured in a straight line between the employee’s place of residence and the nearest boundary of the public employer. Because defendant’s residency requirement demands that an employee reside within 15 radial miles of the nearest city limit, defendant’s residency requirement contravenes MCL 15.602(2).
However, while defendant has violated the statute, nothing in the statute permits plaintiff to maintain a private cause of action for money damages. Moreover, no private right of action to recover money damages may be inferred because defendant is a govеrnmental entity that is entitled to immunity unless the Legislature has explicitly authorized suits by citizens against the governmental entity.
We therefore hold that there is no private right of action for a violation of MCL 15.602(2). The decision of the Court of Appeals is affirmed in part, reversed in part, and we remand this case to the trial court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL BACKGROUND
Plaintiff, a police sergeant with the city of Flint, responded to an advertisement seeking applicants for patrol officers with defendant’s police department. The advertisement expressly outlined defendant’s residency requirement: “A residency requirement of 15 miles radius, or 20 road miles, from the nearest City limit will be enforced for selected candidates.”
Plaintiff was interviewed in December 2002. Subsequently, he received a letter indicating that his interview was successful and that further action would be taken as vacancies arose. The following month, plaintiff purchased a 30-acre parcel of property in Thompson-ville, Michigan. The property is located outside the 20-mile limit if measured in road miles, but is within the 20-mile limit if measured in radial miles.
In August 2003, after the candidate list expired, defendant again solicited applicants
As part of a routine preemployment background investigation, dеfendant discovered that plaintiffs property was 23 road miles from the nearest city limit. Plaintiff was advised that the hiring process would not continue unless he complied with defendant’s residency requirement. Plaintiff refused to meet the residency requirement and suggested that the city renegotiate the collective bargaining agreement to relax the requirement. Plaintiff’s suggestion was rejected. Because plaintiff refused to comply with defendant’s residency requirement, defendant rescinded the conditional offer of employment and cancelled the scheduled testing.
In September 2004, plaintiff filed the instant lawsuit against defendant, seeking only monetary damages for defendant’s “unlawful failure to hire” him. Plaintiff claimed that defendant’s residency requirement violated MCL 15.602 because it required plaintiff to reside closer than 20 miles from defendant’s nearest boundary as measured on a radial basis.
Defendant moved for summary disposition, claiming that its residency requirement was valid because the proper measurement under the statute was road miles, and that plaintiffs property did not fall within the requirement. Defendant further argued that plaintiff had failed to state a claim because the statute did not create a private cause of action. Lastly, defendant argued that plaintiff suffered no compensable damages because he continued to work as a Flint police officer, earning greater wages than he would have earned with defendant. In addition to suffering no wage loss, defendant noted that plaintiffs Thompsonville property had appreciated in vаlue.
In response, plaintiff observed that MCL 15.602 did not specify road miles as the proper basis of measurement, and contended that a private cause of action was permissible because it provided the only effective redress for the statutory violation. While plaintiff did not claim wage loss damages, he insisted that he had incurred other monetary damages, including mileage expenses incurred during the two employment interviews, “continuing private school expenses” for his children in Flint, costs associated with the purchase and repair of the Thompsonville property, and damages related to his spouse’s claimed lost job opportunity in Flint.
The trial court granted summary disposition to defendant, holding that the statutory distance was properly measured in road miles, because the “purpose of the statute” was to ensure that an employee could travel to work within a reasonable time. The trial court also held that a private cause of action could be maintained because there was “no other way to enforce” the statute.
In a published opinion, the Court of Appeals affirmed in part, reversed in part and remanded to the trial court for further proceedings.
II. STANDARDS OF REVIEW AND STATUTORY CONSTRUCTION
Addressing the issues presented in this case requires that we interpret MCL 15.602. Issues of statutory interpretation are questions of law that this Court reviews de novo.
When interpreting a statute, our primary obligation is to ascertain and effectuate the intent of the Legislature.
III. ANALYSIS
A. THE STATUTE
MCL 15.602 states in relevant part as follows:
(1) Except as provided in subsection (2), a public employer shall not require, by collective bargaining agreement or otherwise, that a person residе within a specified geographic area or within a specified distance or travel time from his or her place of employment as a condition of employment or promotion by the public employer.
(2) Subsection (1) does not prohibit a public employer from requiring, by collective bargaining agreement or otherwise, that a person reside within a specified distance from the nearest boundary of the public employer. However, the specified distance shall be 20 miles or another specified distance greater than 20 miles.
(4) Subsection (1) does not apply if the person is a volunteer or paid on-call firefighter, an elected official, or an unpaid appointed official. The plain language of § 1 describes the general prоhibition against residency requirements — a public employer “shall not require” that a person reside within a specific geographic area or within a specific distance or travel time from the employee’s workplace as a condition of employment.
While § 1 indicates what a public employer may not require, § 2 provides an exception and describes what residency limitations a public employer may require as a condition of employment. Under § 2, an employer may require that an employee reside within a specified distance from the nearest boundary of the public employer, without regard to the employee’s place of employment, as long as that specified distance is 20 miles or greater.
B. THE METHOD OF MEASUREMENT UNDER MCL 15.602(2)
Defendant maintains that the Legislature’s failure to define the method of measuring the 20-mile minimum distance in § 2 renders the statute ambiguous, because the term “20 miles” is susceptible to being measured in either radial miles or road miles. Moreover, defendant claims that this ambiguity is easily resolved by looking to the “purpose” of the statute, which defendant claims is to ensure that employees’ travel time “is not too long.”
However, we reject defendant’s clаim that the statute is ambiguous. As an initial matter, the plain meaning of the word “mile” is a measurement of a distance totaling 5,280 feet.
The context of the statute provides further support for the conclusion that the distance stated in MCL 15.602(2) is to be measured linearly. The statute specifically provides that the 20-mile distance is to be measured from an employee’s property to the nearest boundary of the public employer. In contrast to use of the phrase “nearest road,” for example, use of the phrase “nearest boundary” does not contemplate a travel route, because the nearest boundary of the public employer might be in a field, in the middle of a lake, or in a backyard. Thus, the fact that the statute specifies one terminus without consideration of navigability farther militates
We also observe that defendant’s claimed statutory “purpose” is completely contrary to the structure of the statute. Defendant claims that road miles are the proper method of measurement because the “purpose” of MCL 15.602(2) is to ensure that an employee’s “travel time to get to work is not too long.” Defendant notes that efficient travel time “is especially critical” for police, fire, or emergency personnel. However, the general prohibition on residency requirements contained in § 1 prohibits an employer from requiring that an employee reside within either a “specified distance” or “travel time” from the employee’s workplace. In contrast, the permissible parameter contained in the § 2 exception allows an employer to impose a residency requirement that is a “specified distance” from the nearest municipal boundary. The issue of travel time is conspicuously absent in § 2, indicating that travel time is not a permitted consideration when imposing a residency requirement. Moreover, while the Legislature could certainly have excepted police or other emergency personnel from the general residency requirement prohibition, MCL 15.602(4) indicates that only on-call firefighters, elected officials, and unpaid appointed officials are excluded from the prohibition stated in MCL 15.602(1).
We therefore hold that, where a public employer requires an employee to reside 20 miles from the employer’s nearest boundary as permitted by MCL 15.602(2), this distance is properly measured in a straight line between the employee’s place of residence and the nearest boundary of the public employer. Because defendant’s residency requirement obligated plaintiff to reside within 15 radial miles or 20 road miles from defendant’s limit, its residency requirement is violative of the statute.
C. PRIVATE CAUSE OF ACTION UNDER MCL 15.602
Having concluded that defendant’s residency requirement contravenes the statute, the remaining issue is whether plaintiff may maintain a private cause of action for money damages against defendant. While the statute does not explicitly provide for a private cause of action, plaintiff claims that a cause of action should be inferred, because without it plaintiff would have no adequate mechanism to enforce the act.
The Court of Appeals majority
In Gardner v Wood,
“found to be exclusively or in part
“(a) to protect a class of persons which includes the one whose interest is invaded, and
“(b) to protect the particular interest which is invaded, and
“(c) to protect that interest against the kind of harm which has resulted, and
“(d) to protect that interest against the particular hazard from which the harm results.”[22 ]
While the four-factor test focused exclusively on the purpose of the statute, Gardner further observed that the purpose of the statute alone was an insufficient basis for inferring a private right of action. Rather, Gardner held that the “determination [to infer a рrivate cause of action] should not only be consistent with legislative intent, but should further the purpose of the legislative enactment.”
In this case, we need not consider either the factors articulated in Gardner or the footnote in Pompey because neither case may be properly extended to allow a private cause of action for money damages to be implied against a governmental entity such as defendant.
Here, there is no express authorization permitting a private cause of action against a public employer for violation of MCL 15.602(2), nor is there any evidence that the Legislature intended such a remedy. Because the words of a statute provide the most reliable evidence of the Legislature’s intent, we look there to discern it,
A “public employer” is defined under MCL 15.601(a) as a political subdivision of the state.
Moreover, plaintiffs claim that a private cause of action for monetary damages is the only mechanism by which the statute can be enforced is incorrect. Plaintiff could enforce the statute by seeking injunctive relief pursuant to MCR 3.310, or declaratory relief pursuant to MCR 2.605(A)(1).
Plaintiff claims that these remedies are “an illusion,” because enforcing the statute by seeking declaratory or injunctive relief would “likely be costly.” However, plaintiff cites no authority, and we are aware of none, that would permit the creation of a cause of action for monetary damages in contravention of governmental immunity simply because other available remedies are less economically advantageous to plaintiff. It is not within
IV CONCLUSION
We hold that the 20-mile distance permitted in MCL 15.602(2) is to be measured in radial miles between the nearest boundary of the public employer and the employee’s place of residence. In this case, the residency requirement demanded by defendant contravenes MCL 15.602(2).
However, we also hold that plaintiff may not maintain a private cause of action for money damages for violation of the statute because nothing in the statute creates such a cause of action. We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
Notes
As used throughout this opinion, the term “road miles” refers to measuring a distance by the shortest route of public travel. In contrast, the term “radial miles” refers to measuring a distance in a straight line between two points.
This residency requirement, included in the collective bargaining agreement between defendant and the Police Officers Labor Council, is consistent with Traverse City Executive Order No. 311.
These examinations were scheduled for early April 2004, approximately three weeks after the conditioned offer of employment was made. However, defendant cancelled the testing after rescinding the employment offer.
Lash v Traverse City,
Jenkins v Patel,
Maiden v Rozwood,
Tryc v Michigan Veterans’ Facility,
Sotelo v Grant Twp,
Koontz v Ameritech Services, Inc,
Random House Webster’s College Dictionary (1996), p 859.
As we have noted in previous opinions, a statutory term is not rendered ambiguous merely because resort to a dictionary reveals more than one definition. Koontz v supra; People v Derror,
See, for example, Kroger Co v Liquor Control Comm,
Helder v Sruba,
See Mudel v Great Atlantic & Pacific Tea Co,
In her partially dissenting opinion, Justice KELLY opines that our analysis of the measurement of distance under MCL 15.602(2) is “only dictum,” although she agrees with it. We find the logic of her contention hard to follow. Plaintiff seeks damages for defendant’s refusal to hire him. Therefore, before determining whether plaintiff may maintain a private cause of action to remedy a violation of the statute, it is imperative to first determine whether a violation exists, thus requiring an analysis of MCL 15.602(2). Moreover, while we ultimately conclude that plaintiff may not maintain a private cause of action for money damages, plaintiff is free to seek the remedies available to him for defendant’s violation of MCL 15.602(2).
Lash, supra at 213 (opinion by Neff, J.).
Id. (citation omitted). We need not address the dictum in the Pompey footnote that some quantum of additional remedy is permitted where a statutory remedy is “plainly inadequate.” We do note that this principle, which has never since been cited in any majority opinion of this Court, appears inconsistent with subsequent caselaw. See Grand Traverse Co v Michigan,
Gardner, supra at 301 n 5, quoting 4 Restatement Torts, 2d, § 874A, p 301.
Id. at 302, quoting Longstreth v Gensel,
Id. at 304 (emphasis added).
Id. at 307. Gardner also cited with approval Cart v Ash,
See People v Anstey,
Justice Kelly’s partial dissent claims that any discussion regarding whether a private cause of action may be implied for a violation of MCL 15.602 is dictum because governmental immunity bars plaintiffs action. However, as MCL 15.602 by its own terms only applies to public employers, it is difficult to envision how these two issues are severablе. Rather, governmental immunity is the reason that neither Gardner nor Pompey may be extended to permit the judicial creation of a claim for money damages against a governmental entity.
Mack v Detroit,
Sun Valley Foods Co v Ward,
Omne Financial, Inc v Shacks, Inc,
Specifically, MCL 15.601(a) defines “public employer” as a “county, township, village, city, authority, school district, or other political subdivision of this state and includes any entity jointly created by 2 or more public employers.”
See MCL 691.1401(d), defining “governmental agency” as “the state or a political subdivision.”
Mack, supra at 195.
The six statutory exceptions to governmental immunity are the highway exception, MCL 691.1402; the motor vehicle exception, MCL 691.1405; the public building exception, MCL 691.1406; the governmental hospital exception, MCL 691.1407(4); the proprietary function exception, MCL 691.1413; and the sewage system event exception, MCL 691.1417.
See the Civil Rights Act, MCL 37.2103(g) and MCL 37.2202(l)(a); as well as the Persons with Disabilities Civil Rights Act, MCL 37.1103(g), MCL 37.1201(b), and MCL 37.1202.
See the Freedom of Information Act, MCL 15.232(d)(iii) and MCL 15.240(7) (permitting actual or compensatory damages as well as punitive damages for refusing or delaying disclosure of a public record under the act); the Open Meetings Act, MCL 15.273 (permitting the recovery of up to $500 in damages against a public official for intentional violation of the act); the standards of conduct, MCL 15.342c (permitting a civil action for actual damages for violation of MCL 15.342b); and the Whistleblowers' Protection Act, MCL 15.361(b) and MCL 15.363 (permitting a civil action for actual damages for violation of MCL 15.362).
MCR 2.605(A)(1) provides the following remedy: “In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted.”
Michigan Coalition of State Employee Unions v Civil Service Comm,
Updegraff v Attorney General,
Hanson v Mecosta Co Rd Comm’rs,
Concurrence Opinion
{concurring in part in the result and dissenting in part). I concur with the majority that the 20-mile distance permitted in MCL 15.602(2) is to be measured in a straight line between the employee’s place of residence and the nearest boundary of the public employer. I dissent, however, because I believe that the statute allows plaintiff to maintain a private cause of action for money damages for a violation of the statute.
The lack of any remedy in the statute presents a problem. See Pompey v Gen Motors Corp,
Concurrence Opinion
{concurring in part and dissenting in part). Consistent with this Court’s unfortunate decision in Mack v Detroit,
However, because the majority chooses to discuss these two issues, I will respond. First, I agree that the 20-mile distance permitted in MCL 15.602 is to be measured in radial miles as opposed to road miles. Also, but for Mack, I believe that a private cause of action under the statute would be available to plaintiff because of defendant’s violation of MCL 15.602.
In Mack, this Court held that governmental immunity is a characteristic of government. Mack v Detroit,
Following the rationale of Mack, the majority’s holding that governmental immunity applies in this case is correct. As the majority notes, political subdivisions such as defendant enjoy immunity from tort liability under the GTLA.
Whenever governmental immunity applies, in accordance with Mack, a plaintiff must plead in avoidance of governmental immunity. Mack, supra at 198. In this case, plaintiff did not mention the doctrine in his pleadings or at any point in these proceedings.
Accordingly, it is of no legal consequence whether the residency requirement violated MCL 15.602 or whether the statute implies a private cause of action. However, the majority avoids acknowledging the dominant effect that governmental immunity has on this case and instead purports to hold, in addition, that (1) defendant’s residency requirement contravenes MCL 15.602(2) and (2) plaintiff may not maintain a private cause of action for money damages for a violation of the statute. In my view, since the presumption of governmental immunity was never rebutted, it remains and utterly governs the case. The majority’s conclusions on other issues is nothing but
GOVERNMENTAL IMMUNITY AS AN APPELLATE PARACHUTE
Long ago, governmental immunity was viewed as a characteristic of government. Mack, supra at 222 (CAVANAGH, J., dissenting). However, this view changed once the Legislature codified the common-law doctrine of governmental immunity. Id. at 220. Because the Legislature created no presumption favoring blanket governmental immunity, the existence of immunity had to be raised by the party seeking to benefit from it. Id. Using that reasoning, Justice CAVANAGH concluded in his dissent in Mack that governmental immunity is an affirmative defense. Id. I continue to support Justice CAVANAGH’s dissent. I continue to believe that the better view is that governmental immunity is an affirmative defense and that the government still bears the burden of raising and proving it.
In this case, defendant listed governmental immunity as an affirmative defense in its first responsive pleading. However, it never mentioned it again until this Court asked about it. Apparently, because defendant did not mention the issue in its motion for summary disposition, the trial court did not address whether it applied. Because defendant did not mention the issue in the Court of Appeals, that Court did not address whether it applied.
Similarly, defendant did not raise the issue before this Court in its application for leave to appeal.
Defendant ignored governmental immunity in this case until the eleventh hour. It should not be able to ignore the doctrine in the trial court and the Court of Appeals,
THE AVAILABILITY OF A PRIVATE CAUSE OF ACTION
I disagree with the majority’s dictum that no private cause of action is available to plaintiff. In Pompey v Gen Motors Corp,
[t]he general rule, in which Michigan is aligned with a strong majority of jurisdictions, is that where a new right is created or a new duty is imposed by statute, the remedy provided for enforcement of that right by the statute for its violation and nonperformance is exclusive. [Pompey v Gen Motors Corp,385 Mich 537 , 552;189 NW2d 243 (1971).]
Significantly, the Pompey Court also noted two important exceptions to this rule:
In the absence of a pre-existent common-law remedy, the statutory remedy is not deеmed exclusive if such remedy is plainly inadequate... or unless a contrary intent clearly appears.... [Id. at 553 n 14 (citations omitted).][11 ]
In this case, it is undisputed that no common-law right to relief exists and MCL 15.602 does not explicitly provide a cause of action for the enforcement of its provisions. However, using the test set forth in Pompey, I would find that the statute implies the availability of a private cause of action.
MCL 15.602 creates a new right in a particular class of persons. An employee has the right not to be required by his or her employer to reside within a specific geographic area, distance, or travel time from his or her place of employment. MCL 15.602(1). The legislative history of the statute supports the fact that the statute creates the right for an employee to be free from overly restrictivе residency requirements imposed by his or her employer. The Senate Fiscal Agency bill analysis, in explaining the rationale behind the act, stated:
Some people believe that these [residency] requirements unfairly infringe on what they believe is the right of the employee, as a citizen, to determine where he or she will live. It was proposed, therefore, that a State statute should prohibit the imposition of strict residency requirements on public employees, but allow local units of government to continue to require residency within a certain proximity. [Senate Fiscal Agency Analysis, SB 198, January 10, 2000.]
The bill analysis suggests that the statute was intended to balance the employer’s desire for reasonable residency requirements against the employee’s right to be free from unduly strict residеncy requirements.
When the Legislature creates a right in a statute, it must have intended that a remedy exist for a violation of the statute. However, MCL 15.602 does not contain an
Similar problems exist should a plaintiff bring a declaratory judgment action. It would be of no help to plaintiff in the instant case for a court to make a declaration that defendant’s residency requirement is illegal. By the time the decision was issued, the job vacancy that plaintiff sought to fill would have been filled. Accordingly, the Legislature must have intended to allow a private cause of action that includes monetary damages for an aggrieved person in response to a violation of MCL 15.602.
CONCLUSION
I agree with the majority’s holding that, pursuant to Mack, governmental immunity bars plaintiffs action. However, because governmental immunity applies, the majority’s discussion of whether the residency requirement violates MCL 15.602(2) and whether a private cause of action exists is nothing more than dictum.
Were it not for the holding in Mack, which I continue to find badly flawed, I would hold that MCL 15.602 impliеs a private cause of action. Also, I would hold that the 20-mile distance permitted in MCL 15.602 should be measured in radial as opposed to road miles. Finally, but for Mack, I would hold that defendant abandoned the defense of governmental immunity.
MCL 691.1401 et seq.
MCL 691.1407(1) states: “Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1401(d) defines “governmental agency” as “the state or a political subdivision.” Therefore, defendant city of Traverse City is a governmental agency for purposes of governmental immunity. As this Court recognized in Mack, the management, operаtion, and control of a police department is a governmental function. Mack, supra at 204.
See MCL 691.1402 (highway exception), MCL 691.1405 (motor vehicle exception), MCL 691.1406 (public building exception), MCL 691.1407(4) (governmental hospital exception), MCL 691.1413 (proprietary function exception), and MCL 691.1417 (sewage system exception).
The majority never explains why “it is imperative to first determine whether a violation [of MCL 15.602(2)] exists____” Ante at 191 n 16. Regardless of whether a violation exists, governmental immunity bars plaintiffs cause of action. Only if and when plaintiff sought injunctive or declaratory judgment relief would a court need to decide whether defendant violated MCL 15.602(2).
Neither the questions presented by plaintiff nor the counter-questions presented by defendant in the Court of Appeals concerned the issue of governmental immunity. The Court of Appeals has repeatedly stated that a party abandons an issue by failing to specifically raise it in the statement of questions presented. Ypsilanti Fire Marshal v Kircher (On Reconsideration),
Defendant did not explicitly address the issue of governmental immunity-before this Court. Rather, in its brief before the Court of Appeals and this Court, defendant simply stated, “If the Legislature wanted to lift immunity, MCL 691.1407 et seq., and create a private cause of action, surely it would have said so.” Other than a cursory citation of the GTLA, defendant did not attempt to argue that the act applied. Taken in context, defendant’s citation of the GTLA was not in reference to any assertion that governmental immunity applies. Rather, it was in reference to the fact that there is no private cause of action. Therefore, neither of the parties raised the issue of governmental immunify before oral argument.
Although the issue of governmental immunity was raised in an amicus curiae brief, the parties did not raise the issue.
I would note that the procedural history regarding the issue of governmental immunity in this case is similar to that in Mack. There, the defendant city raised governmental immunity as a defense in the trial court, but failed to argue the issue in the Court of Appeals or in this Court. Mack, supra at 197 n 13. It was not until oral argument in Mack that the issue of governmental immunity was discussed. Id. at 226 n 2 (Weaver, J., dissenting). So, just as the parties in this case neither briefed nor discussed whether governmental immunity applies, similarly, in Mack, none of the parties discussed or briefed the issue. In Mack, Justice WEAVER and Justice CAVANAGH strongly objected to other justices’ sua sponte raising and relying on governmental immunity. Their concerns echo in the instant case as well.
In Mach, this Court concluded that Pompey was applicable to claims involving private actors as opposed to public actors. Mack, supra at 193 n 5. I continue to voice my disagreement with the decision. My analysis indicates how I would remedy the violation in this case.