Lash v. City of Traverse City

479 Mich 180 LASH CITY OF TRAVERSE CITY v (Calendar 3). 6, 2007 Argued

Docket No. 131632. July March No. Decided 18, 2007. Joseph brought Lash an action in the Grand Traverse Circuit Court against city City, seeking money the damages of Traverse for the cily’s police failure to hire him as a officer because his residence was (miles by more that 20 “road miles” measured the shortest route of travel) public city city’s residency from requirement the limits. The required plaintiff’s (miles the residence to he within 15 “radial miles” by straight points) measured a line between two or 20 road miles. The court, Power, J., granted Thomas city’s G. summaiy motion for disposition, raling applicable that the 20-mile minimum distance residency requirements, such provided 15.602(2), as in MCL was properly measured road miles. plaintiff The court also held that the bring private could provisions action to enforce of MCL 15.602(2). Appeals part, The Court of part, affirmed reversed in and remanded the matter to the trial proceedings. court for further (2006). Apр separate opinions EJ., by and Zahra, J., the Court held that provided the distance in MCL Murphy, 15.602(2) miles,” should be measured in separate “radial and in opinions J., by J., and Court held Neff, Murphy, bring could cause of action to enforce the statute. The Supreme granted application Court the defendant’s for leave to appeal. 477 Mich 920 opinion joined In an Justice Young, Chief Justice Taylor by Corrigan and Justices Supreme Court held: Markman, 15.602(2) provided The 20-mile distance in MCL is to be miles,” measured in straight “radial in a employ- line between an place ee’s of residence public and the nearest of the employer. The requirement defendant’s contravenes employee because it demands that reside within 15 city boundary. However, radial miles from the nearest no money damages may action for be maintained for a violation of the statute. ambiguous. 1. plain The statute is meaning The 5,280

word “mile” is a totaling measurеment of a distance feet. v Traverse Lash not indicate that “mile” does of the word The definition along travel. routes of available is to be measured distance authorization, legislative a cause' of action 2. Without entity governmental damages money be created cannot immunity. scope of of the broad in contravention permitting private cause of a express no authorization There is 15.602(2) MCL public employer for violation of against a action a Legislature intended such no evidence that the and there is remedy. part, to the trial part, in and remanded in reversed Affirmed proceedings. for further court concurring joined by in Justice Weaver, Justice Cavanagh, dissenting part, concurred with the in part in and the result straight measured in a holding distance is to be that the 20-mile nearest employee’s place of residence and the line between the holding boundary public employer. He dissented from the the of plaintiff to maintain a the does not allow the statute money damages for a violation of the private cause of action for only possible remedy may and be the such statute because employee potential remedy by employee or the time an effective statutory affirm CAVANAGH would violation. Justice discovers Appeals. the Court of part dissenting part, concurring in in Justice Kelly, that, majority’s holding pursuant the agreed to deci- with (2002), Detroit, with which she Mich 186 sion in Mack v immunity plaintiffs disagree, governmental bars continues majority’s agreed dictum that action. She also with in permitted is to be measured in the statute 20-mile distance holding opposed for the miles. But radial miles as to road govern- Mack, abandoned its she hold that the defendant would issue, raising and that a immunity never mental defense allegedly available to the cause of action is employment oppоrtunity of the defen- being because denied an the statute. dant’s violation of Weights — Employers Statutory — Distances and Measures Public 1. Residency Requirements. requires employee 20 miles public employer to reside

Where a greater miles from the specified than 20 distance or another employer, prop- boundary public the distance is of employee’s place straight of erly line measured in a between employer and the nearest residence 15.602[2]). (MCL Opinion of the Court — — Municipal Corporations Immunity. 2. Actions Governmental money damages against A cause of action for be cannot created governmental entity scope gov- in contravention of the broad (MCL immunity legislative ernmental without authorization seq.). 691.1401 et — — — Municipal Corporations 3. Actions Private Causes of Action Residency Requirements. plaintiff may A money not maintain a cause of action for damages public employer provisions that has violated the regard requirements imposed with public employees. on Law Glen N. (by Lenhoff, Glen N. Office of Lenhoff Michael E. Freifeld, and ifeni-Bryant), Robert D. for the plaintiff.

Plunkett & Cooney, (by PC. Mary Massaron Ross and Olsen), Gretchen L. for the defendant.

Amicus Curiae: Miller,

Garan Lucow (by RosalindRochkind), P.C. for the Michigan Municipal League.

YOUNG, J. At issue in this case is the proper con- struction of 15.602, MCL a statute that limits the public restrictions employers may make regarding employee residency. While the statute does not allow an employer to require an employee to in any live specific geographic area, it permit does a public employer require that an employee reside within a distance of 20 miles or more from public employ- er’s boundary. nearest

Plaintiff alleges that he was employment denied with defendant because the city imposed a residency require- ment and measured thе requirement in “road miles” Traverse Lash v Opinion of the Court measured in road- miles.”1 When “radial rather than residence miles, plaintiffs between the distance boundary greater was than defendant’s nearest Plaintiff requirement. by city’s residency allowed violates MCL residency requirement that this contends for defendant’s 15.602(2), monetary damages and seeks to hire him. refusal in MCL permitted the 20-mile distance

We hold that in line between the straight is to be measured and the nearest of residence employee’s place residency re- defendant’s employer. Because reside within 15 employee demands that quirement limit, city defendant’s radial miles of the 15.602(2). contravenes requirement statute, has violated while defendant to maintain permits plaintiff in statute nothing Moreover, damages. for money of action money damages to recover right of action no governmental is a defendant be inferred because Legisla- unless the immunity is entitled to entity citizens authorized suits explicitly has ture entity. private right there is no hold that We therefore 15.602(2). The decision of MCL action for a violation reversed part, affirmed Appeals Court of for this to the trial court and we remand case part, this opinion. with proceedings further consistent BACKGROUND I. FACTSAND PROCEDURAL Flint, city of with the Plaintiff, sergeant a police seeking applicants to an advertisement responded opinion, miles” refers to throughout the term “road this As used contrast, travel. In measuring route of the shortest distance straight measuring in a line a distance refers to term “radial miles” points. between two 479 Mich 180 Opinion of the Court patrol officers with police department. defendant’s The advertisement expressly outlined defendant’s “A requirement: residency requirement of 15 miles radius, miles, or 20 road from City the nearest limit will be enforced for selected candidates.”2

Plaintiff was interviewed in December 2002. Subse- quently, he reсeived a letter indicating that his inter- view was successful and that further action would be taken as vacancies arose. following month, The purchased a 30-acre parcel of property Thompson- ville, Michigan. The property is located outside the 20-mile limit if miles, measured in road but is within if 20-mile limit measured in radial miles.

In August 2003, after the candidate list expired, again defendant applicants solicited patrol officers, outlining same residency requirement. Plaintiff reapplied and was position. reinterviewed for the 2004, plaintiff March was offered conditional employ- ment, contingent on his passing a physical examination, a physical test, endurance and a psychological examina- tion.3

As part of a routine preemployment background investigation, defendant discovered plaintiffs property was 23 road miles from the nearest city limit. Plaintiff was advised that the hiring process would not cоntinue unless he complied with defendant’s residency requirement. Plaintiff refused to meet the residency requirement and suggested that city renegotiate residency requirement, This bargaining included in the collective agreement between Council, defendant and the Police Officers Labor consistent with Traverse Executive Order No. 311. early 2004, These April approxi examinations were scheduled for mately employment three weeks after the conditioned offer of was made. testing defendant rescinding employ cancelled the after ment offer. Lash v Traverse

Opinion of the Court require- the to relax agreement bargaining collective Because rejected. was suggestion Plaintiff’s ment. resi- defendant’s comply with refused ‍​‌‌​‌​‌​‌‌‌​‌​​​​‌​‌‌​​​‌​​​​​‌​​​‌‌‌​​​‌‌‌​‌‌​​‍plaintiff condi- rescinded defendant dency requirement, the sched- and cancelled employment offer of tional testing. uled lawsuit 2004, filed the instant plaintiff

In September monetary damages defendаnt, seeking only him. hire” Plaintiff failure to “unlawful defendant’s vio- requirement that defendant’s claimed reside required plaintiff it MCL 15.602 because lated miles from defendant’s than 20 closer a radial basis. measured on as claiming summary disposition, moved for Defendant valid because was residency requirement that its miles, was road under statute measurement proper did not fall within property plaintiffs and that plaintiff that argued further Defendant requirement. did the statute not a claim because failed to state had defendant Lastly, of action. private create damages compensable no plaintiff suffered argued officer, police as a Flint he continued to work because with he would have earned wages than earning greater loss, defen- suffering wage no In addition to defendant. had Thompsonville property plaintiffs dant noted that in value. appreciated MCL 15.602 did plaintiff observed response, of measure- proper basis road miles as specify action was

ment, contended that and only effective re- it provided because permissible did not While statutory for the violation. dress that he had he insisted damages, loss wage claim including mileage monetary damages, other incurred employment inter- the two during incurred expenses 479 Mich 180 Opinion of the Court views, “continuing school expenses” for his Flint, children in costs associated with the purchase repair Thompsonville property, and damages related spouse’s to his job claimed lost opportunity Flint.

The granted trial court summary disposition to de- fendant, holding that the statutory distance prop- was erly miles, measured in road because the “purpose the statute” was to ensure that an employee could travel to work within a reasonable time. The trial court held also that a private cause of action could be main- tained becаuse there was “no way other to enforce” the statute.

In a published opinion, the Court Appeals affirmed in part, part reversed in and remanded to the trial court for further proceedings.4 Regarding the proper means of measurement, two members of the panel held that the distance provided in MCL was to be measured in radial miles rather than road miles. A different configuration panel members held that the statute permitted a private cause of action for money damages. This Court granted defendant’s application for leave to appeal.5

II. OF STANDARDS REVIEW AND STATUTORY CONSTRUCTION Addressing 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.6 Similarly, we review the trial court’s decision grant or deny summary disposition de novo.7

4 City, Lash v Traverse (2006). 271 Mich App 207; (2006). 477 Mich 920 Patel, Jenkins v (2004). 471 Mich 158, NW2d 346 162; Rozwood, Maiden v NW2d 817 Lash v Traverse Opinion op the Court statute, obligation our primary interpreting When Legisla- intent of the and effectuate the is to ascertain of the so, begin language with the To do we ture.8 be may reasonably statute, ascertaining the intent of a language When the language.9 from its inferred intent is clear Legislature’s unambiguous, statute is nor necessary per- is neither construction judicial mitted.10

III. ANALYSIS A. THE STATUTE in relevant as follows: part MCL 15.602 states (1) (2), public em- Except provided in subsection as agree- by bargaining ployer require, collective shall otherwise, specified person that a reside within a ment or specified or travel geographic within a distance area or place employment as a condition of time from his or her employer. promotion public employment or (2) (1) employer prohibit does not Subsection bargaining agreement or requiring, by collective from otherwise, specified distance person that a reside within a public employer. How- from ever, 20 miles or another specified distance shall be specified greater than 20 miles. distance

(4) (1) person is a apply not if the Subsection does official, firefighter, or paid an elected volunteer or on-call unpaid appointed official. Facility, 129; Tryc Michigan 545 NW2d 642 v Veterans’ 451 Mich (1996). (2004). 95; Twp, v Grant NW2d 381 Sotelo 470 Mich Services, Inc, Koontz v Ameritech 479 Mich 180

Opinion of the Court § The plain language general describes the prohi- against residency requirements bition em- public —a ployer “shall not require” person that a reside within a specific geographic area or a specific within distance or employee’s travel time from the workplace as a condi- employment. tion of § 1 a public employer

While indicates what require, provides § 2 an exception and describes what may require as public employer limitations a 2,§ condition of Under employment. an employer may require that an employee reside within a specified distance from the public of the em- ployer, without to the regard employee’s place of em- ployment, long as as that specified distance is 20 miles greater.

Lastly, § 4 describes the categories of employees to whom the general prohibition residency re- quirements § described in 1 is never A applicable. employer may on-call require firefighters, elected offi- cials, and unpaid appointed officials to reside in a specific geographic specified area or within a distance or travel time from the workplace as a condition of em- ployment.

B. THE METHOD OF MEASUREMENT UNDER MCL Defendant maintains that the Legislature’s failure to define the method of measuring 20-mile minimum § distance in 2 renders the statute ambiguous, because the

term “20 miles” is susceptible being measured in either radial miles or Moreover, road miles. defendant claims this ambiguity easily resolved looking to the “purpose” statute, ‍​‌‌​‌​‌​‌‌‌​‌​​​​‌​‌‌​​​‌​​​​​‌​​​‌‌‌​​​‌‌‌​‌‌​​‍which defendant claims is to ensure that employees’ travel time “is not long.” too reject we defendant’s claim that the statute is ambiguous. matter, As an initial plain meaning 189 Traverse Lash v Opinion of the Court totaling a distance measurement of “mile” is a the word the definition of ordinary in the 5,280 Nothing feet.11 is to be measured this distance indicates that word had Certainly, travel.12 available routes along permissible that the desired Legislature the along miles” or road- in “road be measured restriction that the presume so.13We could have said ways surely it meaning of words intended the common Legislature alterna- statute, and we substitute in the used Because Legislature.14 for that used language tive statute “miles” the word “road” before inserting statute, defendant’s language of the plain subverts fails.15 interpretation preferred further provides support The context оf the statute stated MCL that the distance for the conclusion linearly. spe- The statute to be measured to be distance is the 20-mile cifically provides 11 (1996), p College Dictionary 859. House Webster’s Random 12 statutory opinions, is not previous term have noted in As we dictionary merely ambiguous to a reveals more because resort rendered Derror, 316; supra; People 475 Mich 715 v v than one definition. Koontz (2006). only the term “miles” has one in this case NW2d 822 5,280 definition, feet whether the distance which remains constant at walked, driven, or flown. 13 481; Comm, See, example, Kroger Liquor 366 Mich Co v Control for (1962). There, repealed a now the Court construed 115 NW2d 377 liquor statute, 436.17a, prohibited retail the issuance of a specifically a church or school. The statute within 500 feet of license along the center “shall be measured that the 500-foot distance indicated building part church or school from of the line of the street” Kroger, seeking liquor part license. the location to the nearest supra at 484. 14 (2000); Sruba, 92; Robertson v Mich v 462 Helder (2002). 732; Daimler Chrysler Corp, 641 567 465 Mich NW2d 691, 729; Co, Tea 462 Mich v Great Atlantic & See Mudel Pacific 152, 162; (2000); Granger, v Detroit Trust Co NW2d 607 Newton, (1936); 374 Mass v Police Burke NW Chief of NE2d 949 479 Mich 180

Opinion of the Court measured from an employee’s property to the nearest public employer. In contrast to use of road,” phrase “nearest example, use of the phrase “nearest boundary” does not contemplate a route, travel because the boundary nearest of the public employer might be in field, lake, in the middle of a backyard. in a Thus, the fact that the statute specifies one terminus without consideration of navigability far- ther militates in favor of measuring the permissible residency requirement in radial miles.

We also observe that defendant’s claimed statutory “purpose” is completely contrary to the structure of the statute. Defendant clаims that road miles are the proper method of measurement because the “purpose” 15.602(2) of MCL is to ensure that an employee’s “travel get time to to work is not too long.” Defendant notes that efficient travel time “is especially critical” for fire, police, or emergency personnel. However, gen- eral prohibition on residency requirements contained § 1 prohibits an employer from requiring that an em- ployee reside within either a “specified distance” or “travel time” from the employee’s workplace. In con- trast, the permissible parameter contained in § exception allows an employer to impose a residency requirement is a “specified distance” from the municipal nearest boundary. The issue of travel time is conspicuously 2,§in absent indicating that travel time is not a permitted consideration when imposing a residency requirement. Moreоver, while the Legislature could certainly excepted have police or other emergency personnel from the general residency requirement pro- hibition, MCL indicates that only on-call firefighters, officials, elected and unpaid appointed of- ficials are excluded from the prohibition stated in MCL 15.602(1). Traverse Lash v Opinion op the Court employer that, public where hold therefore

We from the miles reside 20 employee requires as boundary permitted employer’s in a measured properly 15.602(2), this distance of residence place employee’s line between straight Be- employer. of the the nearest obligated residency requirement defendant’s 20 road miles miles or 15 radial reside within plaintiff limit, residency requirement its defendant’s from statute.16 violative MCL 15.602 OF ACTION UNDER PRIVATECAUSE

C. residency re- that defendant’s concluded Having issue statute, remaining contravenes quirement cause of maintain is whether While the defendant. damages against money action for a provide explicitly does not statute should be of action claims that a cause action, plaintiff have no would inferred, plaintiff it because without the act. to enforce mechanism adequate the “rule that majority17 stated Appeals The Court of in is found in a footnote of action” inferring rights for it was noted Pompey, In Corp.18 Motors v Gen Pompey 16 opines that our dissenting opinion, Justice KELLY partially her In “only is under MCL analysis of distance of the measurement logic of her contention dictum,” although agrees find the with it. We she to hire damages defendant’s refusal for Plaintiff seeks hard to follow. may plaintiff a determining maintain Therefore, whether before him. statute, it is remedy of the a violation private action to exists, requiring thus whether a violation imperative to first determine 15.602(2). Moreover, ultimately conclude while we analysis of MCL money private of action may a not maintain that him for available to the remedies damages, plaintiff free to seek is 15.602(2). of MCL violation defendant’s 17 J.). Lash, supra (opinion 213 Neff, at 18 (1971). 537, 14; 243 n 189 NW2d Mich 553 385 180 479 Mich

Opinion the Court existed, remedy remedy that where no common-law by statute sole In a provided remedy. was the footnote Pompey that following general Court proposition, important noted “two to this rule of qualifications” exclusivity, stating remedy that “the is statutory not remedy deemed exclusive if inadequate, such is plainly a contrary clearly or unless intent appears.”19 Wood,20 v Gardner the issue was whether presented damages a civil cause of action for could be maintained a premises owner for violation of the bottle club Gardner act, that, MCL 436.26c. held when a statute is concerning private silent a remedy whether is available statutory violation, for a a court infer a cause of action “if it remedy determines is appropriate furtherance of the of the purpose legis- lation and needed to assure the effectiveness of the ... provision .”21 a test Utilizing derived from the Second Torts, Gardner Restatement of held that a cause of action could be created to redress statutory violation where the purpose statute at issue was exclusively part “found to be or in (citation omitted). Pompey Id. We need address the dictum the quantum remedy permitted footnote that some of additional where a statutory remedy “plainly inadequate.” principle, We do note that this any majority opinion Court, which has never since been cited in of this appears subsequent inconsistent with caselaw. See Grand Traverse Co v (1995) (available Michigan, statutory Mich remedy NW2d precluded assessing cause of action without resort its adequacy); Chrysler 192, 206; Corp, White v 421 Mich (1984) (The permit remedy Court refused to tort for violаtions of the Michigan Occupational Safety Act, seq., Health MCL 408.1001 et despite acknowledging statutory remedy inadequate was be undercompensation many seriously cause it “in injured resulted workers.”). 290; 414 NW2d 706 21 Gardner, supra 5, Torts, 2d, quoting 874A, § at 301 n 4 Restatement p 301. 193 Lash v Traverse Opinion the Court of

“(a) persons which includes the one protect to a class of invaded, and whose interest “(b) invaded, particular the which is protect to interest and

“(c) against kind of protect that interest the harm to resulted, and which has “(d) particular the protect to that interest results.”[22] the

hazard from which harm exclusively the four-factor test focused on While the that statute, of Gardner further observed the purpose alone an insufficient the of the statute was purpose Rather, right a of action. inferring for basis infer a pri- [to that the “determination Gardner held with only action] should not be consistent vate cause of intent, further purpose but should of legislative that a cause of enactment.”23 Gardner held legislative it was inconsis- action could not be maintained because Legislature, indicating tent with the intent a cause of action was “a matter imposition Similarly, subsequent deci- legislative for resolution.”24 remedy a impose Court have refused sions this of evidence of violation in the absence statutory intent.25 legislative 22 Gensel, 675, 692-693; 302, Longstreth quoting 377 Id. at v 286, Torts, 2d, p (1985), quoting § 2 25. NW2d 804 Restatement added). (emphasis at Id. Ash, 66; approval v 422 US at also cited with Cart Id. 307. Gardner (1975), 2080; Supreme 2d 26 in which the United States S Ct 45 L Ed determining factors to be considered in whether Court delineated several statutory private remedy noted available for a violation. as we Baraga-Houghton-Keweenaw Planning Group, Dev Inc Child v Office (2005),

Bd, 479, 498; post-Cort cases have retreated Mich 697 NW2d 871 factors, exclusively now focus of ah the enumerated from consideration “ create, expressly by implica legislative intent ‘to either on evidence of ” (Citation omitted.) tion, private action.’ (2006) 436, People Anstey, 476 445 n See v Mich (“Because statute, remedy provide a in the we Legislature did not Legislature remedy only power has not create a

194 MICH 180 479 Opinion the Court of case, In not consider the this we need either factors in articulated Gardner or the footnote in Pompey be- case may properly cause neither be extended to allow a of private money cause action for to be damages implied against governmental entity such as defendant.26 “express authorization,” legislative Without a cause of action cannot be created “in of contravention the broad scope governmental immunity of . .”27 ..

Here, is express there no authorization permitting a of against action a public employer for 15.602(2), MCL any violation of nor is there evidence Legislature the remedy. intended such a Because the words ‍​‌‌​‌​‌​‌‌‌​‌​​​​‌​‌‌​​​‌​​​​​‌​​​‌‌‌​​​‌‌‌​‌‌​​‍of a statute the reliable provide most evi- intent, dence of the Legislature’s look there we it,28 may discern and not speculate regarding that intent beyond those words expressed the statute.29 15.601(a)

A “public employer” is defined under MCL as a political the subdivision of state.30 subdi- Political create.”); Co, Planning Group, supra; supra Grand Traverse at 465 Office (“[W]e principled find a cannot basis for continuation this cause of Reviewing entirety, plain action. the statute in reading its we hold that a simply support of the statute does not this cause of action or the relief requested.”). Kelly’s partial any Justice claims regarding dissent discussion implied whether a cause of action be for a violation of MCL governmental immunity plaintiffs 15.602 is dictum because bars action. by only applies as MCL 15.602 its own terms employers, it is difficult to envision how these are two issues severable. Rather, governmental immunity the reason that neither Gardner nor Pompey may judicial permit be extended to the creation of a claim for money against damages governmental entity. (2002). Detroit, 186, 196; Mack v 467 Mich 649 NW2d 47 Justice Kelly acknowledges import precedential Mack, effect of but simply disagrees with that decision. (1999). Valley Ward, 230; Sun Foods Co v 460 Mich 596 NW2d 119 Financial, Shacks, Inc, Omne v Inc 15.601(a) Specifically, “public employer” “county, defines as a township, village, city, district, authority, political school or other subdi- Lash Traverse v Opinion Court immunity from tort enjoy such as defendant visions liability tort act under liability GTLA, (GTLA), et Under seq.31 MCL 691.1401 liability “unless the immune from tort defendant immunity and back the veil of Legislature pulled has The government.”32 suit citizens allowed against a brought a cause of action to be permits GTLA areas, six discrete none governmental agency only has addition, Legislature here.33In which is relevant against political action elsewhere created causes of fact, 15 of the chapter of the state.34 subdivisions with instances Michigan Compiled replete Laws has actions Legislature explicitly permitted where the damages against municipalities and their monetary for can be exceptions none of these employees.35 permit- a suit for violation of the interpreted permit to any by entity jointly 2 and includes created or more vision of this state public employers.” 691.1401(d), defining agency” “governmental “the See MCL as state political or a subdivision.” 32 Mack, supra at 195. statutory exceptions immunity are the The six to 691.1402; highway exception, exception, vehicle MCL MCL the motor 691.1406; 691.1405; building exception, governmen public the the MCL hospital exception, 691.1407(4); proprietary excep function tal MCL the tion, 691.1413; sewage system exception, MCL and the event MCL 691.1417. 37.2202(l)(a); Act, 37.2103(g) Rights as See the Civil MCL and MCL Act, 37.1103(g), Rights as Persons Disabilities Civil MCL well the with 37.1201(b), 37.1202. MCL and MCL 15.232(d)(iii) Act, Freedom of Information MCL and MCL See the compensatory damagеs puni (permitting as well as actual or public damages refusing delaying under or disclosure of a record tive for act); Meetings Act, (permitting recovery Open the of the MCL 15.273 the up damages against of to official for intentional violation $500 act); conduct, (permitting a civil standards of MCL 15.342c action 15.342b); damages and the Whistleblow for actual for violation of MCL 15.361(b) Act, (permitting 15.363 a civil ers' Protection and MCL 15.362). damages action actual for violation of MCL 479 MICH 180 Opinion the Court of 15.602(2). residency requirement ted described in MCL Rather, Legislature fact explicitly has permitted damage suits in other of provisions chapter 15 provides persuasive Legislature evidence that the did intend to create a cause of action for particular provision. violation of this Moreover, plaintiffs claim that a monetary action for damages only mechanism by which the statute can be enforced is incorrect. Plaintiff could enforce statute seeking injunctive relief pursuant 3.310, MCR declaratory pursuant to relief 2.605(A)(1).36 injunction MCR A preliminary may be 3.310(A) granted under MCR where can make a particularized showing irreparable of harm that will occur before the merits the claim are considered.37 Moreover, “actual controversy” for the pur- exists poses declaratory of a judgment where a plaintiff pleads and proves facts demonstrating an adverse interest necessitating judgment preserve the plaintiffs legal case, rights.38 In this plaintiffs claim is that defendant’s residency requirement, made a of plaintiffs condition 15.602(2). employment, was violation MCL Such a 2.605(A)(1) provides following remedy: MCR a case “In of actual controversy jurisdiction, Michigan its within court record rights legal party seeking declare the and other of an relations interested declaratory judgment, sought whether or other relief could be is or granted.” 37 Michigan Employee Comm, Coalition State Unions v Civil Service (2001). 212, 11; 465 Mich n requiring 225 634 692 In NW2d addition to party moving irreparable that a demonstrate harm in the absence of relief, injunctive “(1) by other be factors should considered trial court: (2) public injunction issued; harm to the interest if such an whether injunction applicant outweighs harm to the absent such an the harm it (3) party, strength moving would cause the adverse to and of the party’s showing likely prevail Id. it is on the merits.” 38 Updegraff Attorney General, 48; v (1941); 400 298 NW Finlayson (1948). Twp, v West Mich NW2d Bloomfield Lash v Traverse op Opinion the Court controversy” “actual constitute claim would declaratory judgment. an action for purposes illusion,” are “an these remedies claims that Plaintiff declaratory or by seeking enforcing the statute because However, costly.” be “likely relief would injunctive none, are aware of and we authority, cites no plaintiff cause of action for the creation of a permit that would of governmental in contravention monetary damages remedies are other available immunity simply because It is not advantageous plaintiff. economically less “to redetermine authority judiciary of the within what independently choice or to assess Legislature’s just public policy.”39 fair or or best be most would Rather, provided seeks must be plaintiff the relief by Legislature.

IV CONCLUSION in MCL permitted hold that the 20-mile distance We in miles between the measured radial to be the em- employer and case, of residence. this ployee’s place contravenes MCL demanded defendant requirement 15.602(2). may not main- we also hold that damages for money of action for

tain a nothing in the statute of the statute because violation reverse part, of action. We affirm creates such a cause the trial court for further and remand to part, opinion. this consistent with proceedings Corrigan JJ., C.J., Markman, con- Tаylor, and Young, J. curred with Comm’rs, Co Rd Hanson v Mecosta 638 NW2d 465 Mich 492, 504; 479 Mich Opinions by Cavanagh, Kelly, J. J., in in {concurring part the result and J. CAVANAGH,

dissenting part). I concur with the majority that the 20-mile permitted distance in MCL is to be measured in a straight line between the employee’s place of residence and the

employer. dissent, I however, because I believe that statute allows to maintain a private cause of money action for damages for a violation of the statute. The lack of any remedy in the statute presents a problem. See Pompey v Gen Motors Corp, 537, Mich (1971). 14; 552 n 189 NW2d 243 A violation of the statute has significant consequences for an employee or potential employee. For example, potential employee may not be hired or a current employee may have his employment terminated not receive a promotion. But an employee or potential employeе may not learn of this statutory violation until the only possible effective remedy is one for monetary damages. Thus, I would affirm the Court of Appeals on this issue and hold that a private action does exist for a violation of the statute. J., concurred J. with

WEAVER, CAVANAGH, J. {concurring in part and dissenting in part). KELLY, Consistent with this Court’s unfortunate decision in Mack Detroit,1 v doctrine of immunity bars plaintiffs cause of action Hence, here. no useful pur- pose is served MCL interpreting 15.602 or deciding whether a private cause of action exists under statute. The majority’s discussion of these two issues is only dictum. 467 Mich 649 NW2d agree I continue to with the Mach, dissent in with which I concurred. Community See also Costa v

Emergency Services, Inc, 403, 417-420; Medical (2006) (Kelly, J., dissenting) (recognizing holding in Mack binding precedent constitutes reiterating disagreement but with the case). majority’s resolution of that Traverse Lash v Opinion by Kelly, J. majority chooses to discuss However, because First, I issues, agree I resрond. two will these is to be 15.602 permitted distance 20-mile Also, miles as to road miles. opposed measured in radial cause of action Mack, I that a private believe but plaintiff be available to because the statute would under of MCL 15.602. of defendant’s violation MACA THE DOCTRINE APPLICATION OF AND IMMUNITY OF GOVERNMENTAL immunity that Mack, governmental In this Court held Detroit, Mack v government. of is a characteristic longer It is no 186, 190; 649 NW2d 47 Mich seeking impose liability party The affirmative defense. in pleading agency has the burden governmental on a 198. This immunity. Id. at governmental avoidance of that, “express legislative held in Mack without Court also created “in of action cannot be authorization,” a cause immu governmental scope of the broad contravention govern “presumption [under The nity.” Id. at 196. (GTLA)[2]is, therefore, a that liability act mental tort only and can be sub is immune governmental agency statutory falls within a if a case ject plaintiffs to suit in (emphasis original). at 201 exception.” Id. Mack, majority’s hold rationale of

Following the in is immunity applies this case ing governmental notes, subdivisions majority political correct. As the liability from tort enjoy immunity such as defendant six discrete And none of the the GTLA. under seq. MCL 691.1401 et act, provided “Except in this a as otherwise states: liability governmental if the governmental agency immune from tort is governmental discharge a agency engaged in the exercise 691.1401(d) agency” “governmental as state “the defines function.” MCL Therefore, city of Traverse political defendant subdivision.” or a 479 Mich 180 Opinion by Kelly, J. i

areas4 n which the GTLA permits cause of action to brought be applies Moreover, this case. there is no express permitting authorization a private cause ‍​‌‌​‌​‌​‌‌‌​‌​​​​‌​‌‌​​​‌​​​​​‌​​​‌‌‌​​​‌‌‌​‌‌​​‍of action a public employer for violation of MCL 15.602(2). Therefore, under the rationale in Mack, governmental immunity applies to bar plaintiffs ac tion.

Whenever governmental immunity applies, in accor- Mack, dance with plead must in avoidance of governmental immunity. Mack, at supra 198. this case, plaintiff did not mention the doctrine in his pleadings any or at point 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. the majority avoids acknowledging the dominant effect immunity has on this case and (1) hold, instead purports addition, to in that defen dant’s requirement contravenes MCL (2) and plaintiff may not maintain a money action for damages for a violation of the view, statute. In my since the presumption govern of mental immunity was rebutted, never it remains and utterly governs the case. The majority’s conclusions on other issues nothing but dicta.5 governmental agency purposes governmental immunity. for of As this recognized Mack, management, Court in operation, and control aof police department governmental Mack, supra is a function. at 204. (motor (highway See exception), MCL 691.1402 MCL 691.1405 exception), vehicle (public building MCL exception), 691.1406 691.1407(4) (governmental hospital exception), (pro MCL 691.1413 prietary exception), function (sewage and system MCL 691.1417 exception). majority explains why The imperative never “it is to first determine exists____” 15.602(2)] whether a [of violation MCL Ante at 191 n 16. Regardless exists, governmental of whether a violation immunity bars Lash v Traverse by Opinion Kelly, J. PARACHUTE IMMUNITYAS AN APPELLATE

GOVERNMENTAL immunity Long ago, governmental viewed as a was supra government. Mack, at 222 of characteristic dissenting). However, this view J., (CAVANAGH, Legislature changed common- codified the once immunity. governmental Id. at 220. law doctrine Legislature presumption no fa- Because the created governmental immunity, voring blanket the existence by party seeking immunity to had to be raised Using reasoning, from it. Id. Justice benefit in in Mack that CAVANAGH concluded governmental immunity his dissent Id.

is an аffirmative defense. support I I continue to Justice CAVANAGH’sdissent. is that continue governmental believe that better view

immunity is an affirmative defense and government raising that the still bears the burden of proving it. governmental case, In this defendant listed immu nity responsive as an affirmative defense in its first pleading. again it until it never mentioned Apparently, this Court asked about it. because defen did dant not mention the issue its motion sum mary disposition, the trial court did not address applied. it whether Because defendant did not mention Appeals, the issue in the Court of did Court applied. it address whether plaintiffs Only plaintiff sought injunctive if cause of action. and when declaratory judgment relief would a court need to decide whether 15.602(2). defendant violated MCL by questions presented Neither nor the counter- questions presented by Appeals concerned defendant the Court immunity. Appeals has the issue of The Court of repeatedly party failing thаt a abandons an issue stated Ypsilanti specifically questions presented. it in the statement of raise (On 496, 553; App Reconsideration), Fire v Kircher Marshal 7.212(C)(5). (2007), citing MCR 479 Mich 180 Opinion by Kelly, J.

Similarly, defendant did not raise the issue before this Court in its application for leave to appeal.7 granting leave to appeal, this Court did not order the to parties address the issue. See Mich Indeed, the first time the parties8 clearly addressed the governmental issue of immunity was at oral argument before this Court when Chief Justice TAYLOR raised it sua sponte.9

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 then Appeals, rely on it at the last minute before this Court. This Court should amend its holding Mack to discourage a defendant using from governmental im- munity as an appellate parachute. explicitly governmental Defendant immunity- did not address issue of Rather, before Appеals this Court. in its brief before the Court of and this Court, simply stated, Legislature defendant immunity, “If the wanted to lift seq., action, MCL 691.1407 surely et and create a it would cursory have said GTLA, so.” Other than a citation of the defendant did not attempt argue applied. context, that the act Taken in defendant’s citation any governmental GTLA was not in reference to assertion that immunity applies. Rather, it was in reference to the fact that there is no Therefore, parties cause of action. neither of the raised the issue of governmental immunify argument. before oral 8 Although governmental immunity issue of was raised in an brief, parties amicus curiae did not raise the issue. 9 I procedural history would regarding note the issue of governmental immunity There, in this case is similar to that in Mack. city governmental immunity defendant raised as a defense in the trial court, argue but Appeals failed to the issue in the Court of or in this Mack, supra Court. argument at 197 n It 13. was not until oral in Mack governmental immunity that the issue of was discussed. Id. at n 2 J., So, just dissenting). parties as the in this case neither briefed (Weaver, governmental immunity nor discussed whether applies, similarly, in

Mack, parties Mack, none of the discussed or briefed the issue. In Justice CAVANAGH strongly objected and justices’ Justice other sua WEAVER sponte raising relying immunity. on Their concerns echo in the instant case as well. Lash v Traverse 203 by Opinion J. Kelly, AVAILABILITY

THE A PRIVATE OF CAUSE OF ACTION I dictum that no disagree majority’s with plaintiff. cause of action is available to In v Gen Pompey Motors this Court summarized the rules of Corp,10 statutory that should be interpretation followed when determining whether an of implied private cause action remedy statutory exists to a violation. We observed that rule, general Michigan aligned [t]he in which is with a strong majority jurisdictions, right of is new that where a is duty by statute, imposed remedy created or a new is provided right by for enforcement of that the statute for its nonperformance [Pompey violatiоn and is exclusive. v Gen (1971).] 537, 552; Corp, Motors 385 Mich NW2d Significantly, the Pompey impor- Court also noted two exceptions tant to this rule: pre-existent remedy,

In the absence of a common-law statutory remedy is not if deemed exclusive such remedy plainly inadequate... contrary or unless a (citations clearly appears.... [Id. intent at n 14 omitted).][11] case, In this it undisputed that no common-law right to relief exists and MCL 15.602 explicitly does not provide cause of action for the enforcement of its provisions. using the test set forth in Pompey, I would find that the statute implies availability of action. right

MCL 15.602 creates a new in a particular class persons. An employee right required has the not to be by his or her employer to reside within a specific 385 Mich 11 Mach, Pompey applicable this concluded that Court was to claims Mack, involving private opposed supra actors as actors. at 193 my disagreement My analysis n 5. I cоntinue to voice with the decision. remedy I indicates how would the violation in this case. J. Opinion Kelly, her area, distance, or travel time from his or

geographic 15.602(1). The legislative place employment. the fact that the statute history supports of the statute overly to be free from right employee creates the for an imposed by his or residency requirements restrictive analysis, in Agency her The Senate Fiscal bill employer. act, the rationale behind the stated: explaining [residency] requirements people Some believe that these unfairly infringe they right is the on what believe citizen, employee, to determine where he or she will as therefore, proposed, live. It that a State statute should was residency requirements prohibit imposition of strict on government employees, but allow local units to require proximity. continue to within a certain 198, January 10, Agency Analysis, [Senate 2000.] SB Fiscal The intended analysis suggests bill statute was resi- employer’s to balance desire reasonable dency to be requirements against employee’s right unduly residency requirements. free from strict statute, a in a it Legislature right When the creates remedy must have intended that a exist for a violation of the statute. MCL 15.602 does not contain express remedy majority for its violation. The claims plaintiff by seeking could enforce the statute MCR injunctive pursuant declaratory relief to 3.310 2.605(A)(1). relief pursuant Although to MCR such available, they may remedies are equitable often be impractical in cases such as the one before us. For relief, example, although may grant injunctive court frequently plaintiff all too would not learn of the statutory violation until the had filled job opening been employer or eliminated. No action would remain useful, all, enjoined. Injunctive to be would be if at relief mostly for future and would not assist the applicants plaintiff. Lash v Traverse Opinion by J. Kelly,

Similar problems exist should plaintiff bring a declaratory judgment action. It would be of no help to in the instant case for a court to make a declaration that defendant’s residency requirement illegal. By the time the issued, decision was job vacancy that plaintiff sought fill to would have been filled. Accordingly, Legislature must have intended to allow a private cause of action that includes mon- etary damages for an aggrieved person in response to a violation of MCL 15.602.

CONCLUSION I agree with the majority’s holding that, pursuant Mack, governmental immunity bars plaintiffs action. However, because governmental immunity applies, ‍​‌‌​‌​‌​‌‌‌​‌​​​​‌​‌‌​​​‌​​​​​‌​​​‌‌‌​​​‌‌‌​‌‌​​‍the majority’s discussion of whether the residency require- ment violates MCL and whether a private cause of action exists nothing more than dictum. Mack,

Were it not for the holding which I continue badly flawed, find I would hold that MCL 15.602 implies a private Also, action. I would hold that the 20-mile distance permitted in MCL 15.602 should be measured in radial as opposed to road miles. Finally, Mack, but for I would hold that defendant abandoned the defense immunity.

Case Details

Case Name: Lash v. City of Traverse City

Court Name: Michigan Supreme Court

Date Published: Jul 18, 2007

Citation: 735 N.W.2d 628

Docket Number: Docket 131632

Court Abbreviation: Mich.