*1 Michigan Supreme Court Lansing, Michigan
Syllabus Chief Justice: Justices:
Bridget M. McCormack Stephen J. Markman Brian K. Zahra Chief Justice Pro Tem: Richard H. Bernstein David F. Viviano Elizabeth T. Clement Megan K. Cavanagh This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: Kathryn L. Loomis
prepared by the Reporter of Decisions for the convenience of the reader.
MAYS v GOVERNOR Docket Nos. 157335 through 157337 and 157340 through 157342. Argued March 4, 2020 (Calendar No. 2). Decided July 29, 2020.
Melissa Mays and other water users and property owners in Flint, Michigan (plaintiffs)
brought a class action in the Court of Claims against defendants Governor Rick Snyder, the state
of Michigan, the Michigan Department of Environmental Quality (the MDEQ), and the
Michigan Department of Health and Human Services (collectively, the state defendants) and
against defendants Darnell Earley and Jerry Ambrose (the city defendants), who are former
emergency managers for the city of Flint. Plaintiffs’ complaint alleged that from 1964 through
late April 2014, the Detroit Water and Sewerage Department (DWSD) supplied Flint water users
with their water, which was drawn from Lake Huron. On April 16, 2013, the Governor
authorized a contract to explore the development of an alternative water delivery system, and at
the time of the contract, the Governor and various state officials knew that the Flint River would
serve as an interim source of drinking water for the residents of Flint. Plaintiffs alleged that the
Governor and these officials had knowledge of a 2011 study commissioned by Flint officials that
cautioned against the use of Flint River water as a source of drinking water. On April 25, 2014,
under the direction of Earley and the MDEQ, Flint switched its water source from the DWSD to
the Flint River, and Flint water users began receiving Flint River water from their taps. Plaintiffs
alleged that the switch occurred despite the fact that the water treatment plant’s laboratory and
water-quality supervisor warned officials that the water treatment plant was not fit to begin
operations and despite the fact that the 2011 study had noted that the water treatment plant would
require facility upgrades costing millions of dollars. Less than a month after the switch, state
officials began to receive complaints from Flint water users about the quality of the water
coming out of their taps. In June 2014, residents complained that they were becoming ill after
drinking the tap water. In October 2014, General Motors announced that it was discontinuing
the use of Flint water in its Flint plant due to concerns about the corrosive nature of the water,
and in the same month, Flint officials expressed concern about a legionellosis outbreak and
possible links between the outbreak and Flint’s switch to the river water. In February 2015, the
United States Environmental Protection Agency (the EPA) advised the MDEQ that the Flint
water supply was contaminated with iron at levels so high that the testing instruments could not
measure the exact level, and in the same month, the MDEQ was advised that black sediment
found in some of the tap water was lead. Plaintiffs alleged that during this time, state officials
failed to take any significant remedial measures to address the growing health threat and instead
continued to downplay the health risk, advising Flint water users that it was safe to drink the tap
*2
water while simultaneously arranging for state employees in Flint to drink water from water
coolers installed in state buildings. Additionally, plaintiffs alleged that the MDEQ advised the
EPA that Flint was using a corrosion-control additive with knowledge that the statement was
false. Through the summer and fall of 2015, state officials allegedly continued to cover up the
health emergency, discredit reports that confirmed the presence of lead in the water system and a
spike in the percentage of Flint children with elevated blood lead levels, and advise the public
that the drinking water was safe despite knowledge to the contrary. In early October 2015, the
Governor acknowledged that the Flint water supply was contaminated with dangerous levels of
lead. On October 8, 2015, the Governor ordered Flint to reconnect to the DWSD, and the
reconnection occurred on October 16, 2015. On January 21, 2016, plaintiffs brought a four-
count class-action complaint against all defendants in the Court of Claims for state-created
danger, violation of plaintiffs’ due-process right to bodily integrity, denial of fair and just
treatment during executive investigations, and unconstitutional taking via inverse condemnation.
The state and city defendants separately moved for summary disposition on all four counts,
arguing that plaintiffs had failed to satisfy the statutory notice requirements in MCL 600.6431 of
the Court of Claims Act, MCL 600.6401
et seq
., failed to allege facts to establish a constitutional
violation for which a judicially inferred damages remedy is appropriate, and failed to allege facts
to establish the elements of any of their claims. The Court of Claims, M ARK T. B OONSTRA , J.,
granted defendants’ motions for summary disposition on plaintiffs’ causes of action under the
state-created-danger doctrine and the Fair and Just Treatment Clause of the 1963 Michigan
Constitution, art 1, § 17, after concluding that neither cause of action is cognizable under
Michigan law. However, the Court of Claims denied summary disposition on all of defendants’
remaining grounds, concluding that plaintiffs satisfied the statutory notice requirements and
adequately pleaded claims of inverse condemnation and a violation of their right to bodily
integrity. In Court of Appeals Docket No. 335555, the state defendants appealed, and the city
defendants and plaintiffs cross-appealed; in Court of Appeals Docket No. 335725, the Court of
Appeals granted the city defendants’ application for leave to appeal; and in Court of Appeals
Docket No. 335726, the Court of Appeals granted the state defendants’ application for leave to
appeal. The Court of Appeals consolidated the appeals. In its judgment, the Court of Appeals,
J ANSEN , P.J., and F ORT H OOD , J. (R IORDAN , J., dissenting), affirmed the Court of Claims’ rulings
on the statutory notice requirements, plaintiffs’ claim of violation of their right to bodily
integrity, and plaintiffs’ claim of inverse condemnation.
In a lead opinion by Justice B ERNSTEIN , joined by Chief Justice M C C ORMACK and Justice C AVANAGH , and a separate opinion by Justice V IVIANO , concurring in part and dissenting in part, the Supreme Court held :
Plaintiffs sufficiently alleged a claim of inverse condemnation to survive a motion for summary disposition brought under MCR 2.116(C)(8). Viewed in the light most favorable to plaintiffs and accepting their factual allegations as true, the pleadings established that defendants’ actions were a substantial cause of the decline in plaintiffs’ property value, that defendants took affirmative actions directed at plaintiffs’ property, and that plaintiffs suffered a unique or special injury different in kind, not simply in degree, from the harm suffered by all persons similarly situated. While state and municipal agencies performing governmental functions are generally immune from tort liability, the government may voluntarily subject itself *3 to liability, which also means that it may place conditions or limitations on the liability imposed. One condition on the right to sue state governmental agencies is the notice provision of the Court of Claims Act, MCL 600.6431. But it would be premature to grant summary disposition regarding the inverse-condemnation claim on the basis of the six-month notice period because questions of fact remain as to when plaintiffs’ claims accrued.
Court of Appeals judgment regarding plaintiffs’ inverse-condemnation claim expressly affirmed; Court of Appeals judgment otherwise affirmed by equal division, including with regard to whether plaintiffs presented a cognizable claim for violation of their right to bodily integrity under Michigan’s Due Process Clause; case remanded to the Court of Claims for further proceedings.
In the lead opinion, Justice B ERNSTEIN , joined by Chief Justice M C C ORMACK and Justice
C AVANAGH , stated that plaintiffs adequately alleged a claim of inverse condemnation. A
plaintiff alleging inverse condemnation must establish that the government’s actions were a
substantial cause of the decline of the property’s value and that the government abused its
powers in affirmative action directly aimed at the property. The right to just compensation in the
context of an inverse-condemnation suit for diminution in value exists only when the landowner
can allege a unique or special injury, i.e., an injury that is different in kind, not simply in degree,
from the harm suffered by all persons similarly situated. In this case, plaintiffs met the first
element of an inverse-condemnation claim because they alleged that switching the water source
from the DWSD to the Flint River resulted in physical damage to pipes, service lines, and water
heaters and that the contaminated water limited the use of their property and substantially
impaired its value and marketability because after the water crisis became public knowledge,
lenders were hesitant to authorize loans for the purchase of realty within Flint and property
values decreased. Plaintiffs met the second element of an inverse-condemnation claim because
they alleged that defendants committed an affirmative act directed at their property when the
state defendants authorized the city defendants to use the Flint River as an interim water source
while both sets of defendants knew that using the river could result in harm to property.
Defendants then allegedly concealed or misrepresented data and made false statements about the
safety of the river water in an attempt to downplay the risk of its use and consumption.
Following United States Supreme Court precedent in comparing plaintiffs to a generalized group
of similar individuals—other municipal water users who generally experience harms such as
service disruptions and externalities associated with construction—plaintiffs alleged injuries that
were different in kind, not just degree, from other municipal water users when they alleged that
water contaminated with Legionella bacteria and toxic levels of iron and lead flowed through
their pipes, service lines, and water heaters, which damaged the infrastructure and diminished
their property’s value. Accordingly, plaintiffs’ allegations were sufficient to conclude that
plaintiffs had alleged a claim of inverse condemnation to survive a motion for summary
disposition. With regard to defendants’ argument that plaintiffs failed to satisfy the statutory
notice requirements, MCL 600.6431 provides that in actions for property damage or personal
injuries, the claimant must file with the clerk of the court of claims a notice of intention to file a
claim or the claim itself within six months following the happening of the event giving rise to the
cause of action. Under MCL 600.5827, a claim accrues at the time the wrong upon which the
claim is based was done, which is the date on which the defendant’s breach harmed the plaintiff.
In this case, questions of fact remained as to when plaintiffs sustained their injuries; therefore,
summary disposition at this stage of the litigation was premature. With regard to plaintiffs’
*4
constitutional-tort claim, plaintiffs sufficiently pleaded a claim for violation of their substantive
due-process right to bodily integrity under Const 1963, art 1, § 17. While the Legislature has
never created an exception to immunity for a constitutional tort,
Smith v Dep’t of Pub Health
,
In a separate concurrence, Justice B ERNSTEIN wrote to counter Justice M ARKMAN ’s
arguments about plaintiffs’ purported failure to adhere to the Court of Claims Act’s statutory
notice requirements and to counter Justice V IVIANO ’s argument that plaintiffs should be denied
the right to sue for their personal injuries that resulted from a violation of their right to bodily
integrity and should be denied a damages remedy. Justice B ERNSTEIN agreed with the Court of
Appeals’ application of the harsh-and-unreasonable-consequences exception to the MCL
600.6431 notice requirement in the event that plaintiffs’ claims are proved but untimely. While
Rowland v Washtenaw Co Rd Comm
, 477 Mich 197 (2007),
Trentadue v Buckler Automatic
Lawn Sprinkler Co
,
Chief Justice M C C ORMACK , joined by Justice C AVANAGH , fully concurred with the lead
opinion but wrote separately to respond to Justice V IVIANO ’s critique of
Smith
. Chief Justice
M C C ORMACK disagreed with Justice V IVIANO ’s argument that
Smith
’s foundations have been
eroded by the United States Supreme Court’s partial retreat from
Bivens v Six Unknown Fed
Bureau of Narcotics Agents
,
Justice V IVIANO , concurring in part and dissenting in part, agreed with the lead opinion’s analysis of plaintiffs’ inverse-condemnation claim and with the lead opinion’s remand for further factual development to determine when that claim accrued. But he would have reversed the Court of Appeals’ denial of defendants’ motion for summary disposition concerning plaintiffs’ claim for a violation of bodily integrity because he did not believe that substantive due process encompasses a right to be protected from exposure to contaminated water and he did not believe that plaintiffs alleged conscience-shocking conduct on the part of defendants. A substantive due- process analysis must begin with a careful description of the asserted right and a determination of whether that right is deeply rooted in this country’s history. In this case, the right that plaintiffs asserted in their amended complaint was a right not to be exposed to contaminated water, and no caselaw existed holding that such a right is encompassed in substantive due process. Several cases explicitly hold that there is no right to a contaminant-free environment. The Court of Appeals in this case did not follow this analysis and erred by describing the right so *6 generally. Furthermore, plaintiffs did not allege conscience-shocking behavior. The bar for conduct that shocks the conscience is so high that it has been described as virtually insurmountable. In this case, plaintiffs alleged that defendants switched Flint’s water source despite a study cautioning against using the Flint River, but additional studies stated that the initial study was unreliable. The studies and expert opinions plaintiffs cited in their complaint were not sufficient to show that defendants’ behavior was deliberately indifferent. Other evidence had to be weighed in the balance: former Governor Snyder testified that he was repeatedly assured by the MDEQ that the water was safe, and there was no broad consensus that using the Flint River as a water source would cause a serious public health crisis. While mistakes had been made, plaintiffs did not allege actions that surmounted the high bar of conscience-shocking behavior. Furthermore, Justice V IVIANO would not have inferred a damages remedy even if plaintiffs did allege a substantive due-process claim for two reasons: even if Smith applied, the factors that Justice B OYLE listed in her partial concurrence for implying an inferred damages remedy weighed against the creation of a claim for damages, and Justice V IVIANO had doubts about whether Smith was correctly decided and whether it should be extended. Additionally, Justice V IVIANO stated that an implied claim for damages arising from a state constitutional violation would raise serious separation-of-powers concerns.
Justice M ARKMAN , joined by Justice Z AHRA , dissenting, would have reversed the decision of the Court of Appeals and remanded the case to the Court of Claims for entry of an order disposing of all of plaintiffs’ claims and dismissing the case because plaintiffs failed to comply with MCL 600.6431(3), which required plaintiffs to file a notice of intention to file a claim or the claim itself within six months following the happening of the event giving rise to the cause of action. The period of limitations begins to run when a plaintiff suffers harm, not when a plaintiff first learns of that harm. In this case, plaintiffs filed their complaint on January 21, 2016, and thus the event giving rise to the cause of action must have happened on or after July 21, 2015, for plaintiffs’ action to have been filed in a timely manner under MCL 600.6431(3). Because plaintiffs alleged in their complaint and in their amended complaint that the event giving rise to the cause of action was the switching of the water supply on April 25, 2014, Justice M ARKMAN would have held that plaintiffs’ action was untimely. Furthermore, Justice M ARKMAN would have held that the harsh-and-unreasonable-consequences exception and the fraudulent-concealment exception of MCL 600.5855 were each clearly inapplicable.
Justice C LEMENT did not participate because of her prior involvement as chief legal counsel for Governor Rick Snyder.
©2020 State of Michigan
Michigan Supreme Court Lansing, Michigan
OPINION Chief Justice: Justices:
Bridget M. McCormack Stephen J. Markman Brian K. Zahra Chief Justice Pro Tem: Richard H. Bernstein David F. Viviano Elizabeth T. Clement Megan K. Cavanagh
FILED July 29, 2020 S T A T E O F M I C H I G A N SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157335-7 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157340-2 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants. BEFORE THE ENTIRE BENCH (except C LEMENT , J.)
B ERNSTEIN , J.
This putative class action involves a series of events commonly referred to as the “Flint water crisis.” Plaintiffs, who are water users and property owners in the city of Flint, sued former Governor Rick Snyder, the state of Michigan, the Michigan Department of Environmental Quality (MDEQ), and the Michigan Department of Health and Human
2 *9 Services (DHHS) (collectively, the state defendants). [1] Plaintiffs also sued former city of Flint emergency managers Darnell Earley and Jerry Ambrose (collectively, the city defendants). [2] The state defendants and the city defendants brought separate motions for summary disposition under MCR 2.116(C)(4), (7), and (8). Defendants argued that plaintiffs’ lawsuit should be dismissed because plaintiffs failed to provide timely notice and did not sufficiently plead their claims. The Court of Claims granted partial summary disposition to defendants on claims not relevant to the issues presented in this Court. The Court of Claims denied defendants’ motions for summary disposition with respect to *10 plaintiffs’ claim for violation of their right to bodily integrity under the Due Process Clause of the 1963 Michigan Constitution, art 1, § 17, and plaintiffs’ claim of inverse condemnation. The state defendants appealed, and cross-appeals followed. The Court of Appeals affirmed the Court of Claims. Both sets of defendants filed applications for leave to appeal in this Court. We granted leave to appeal, and after hearing oral argument on defendants’ applications, a majority of this Court expressly affirms the Court of Appeals’ conclusion regarding plaintiffs’ inverse-condemnation claim. The Court of Appeals opinion is otherwise affirmed by equal division. See MCR 7.315(A).
I. FACTS The trial court record is limited because defendants brought their motions for summary disposition before discovery could be conducted. The facts of the case are disputed. However, because this is an appeal from an opinion that mainly concerns motions for summary disposition under MCR 2.116(C)(7) and (8), we accept the contents of the complaint as true unless contradicted by documentation submitted by the movant [3] and we construe the factual allegations in a light most favorable to plaintiffs. [4] See Maiden v Rozwood , 461 Mich 109, 119-120; 597 NW2d 817 (1999). The Court of Claims summarized plaintiffs’ pleadings as follows:
From 1964 through late April 2014, the Detroit Water and [Sewerage] Department (“DWSD”) supplied Flint water users with their water, which
was drawn from Lake Huron. Flint joined Genesee, Sanilac, and Lapeer Counties and the City of Lapeer, in 2009, to form the Karegondi Water Authority (“KWA”) to explore the development of a water delivery system that would draw water from Lake Huron and serve as an alternative to the Detroit water delivery system. On March 28, 2013, the State Treasurer recommended to [former Governor Snyder] that he authorize the KWA to proceed with its plans to construct the alternative water supply system. The State Treasurer made this decision even though an independent engineering firm commissioned by the State Treasurer had concluded that it would be more cost efficient if Flint continued to receive its water from the DWSD. Thereafter, on April 16, 2013, the Governor authorized then-Flint Emergency Manager Edward Kurtz to contract with the KWA for the purpose of switching the source of Flint’s water from the DWSD to the KWA beginning in mid-year 2016.
At the time Emergency Manager Kurtz contractually bound Flint to the KWA project, the Governor and various state officials knew that the Flint River would serve as an interim source of drinking water for the residents of Flint. Indeed, the State Treasurer, the emergency manager and others developed an interim plan to use Flint River water before the KWA project became operational. They did so despite knowledge of a 2011 study commissioned by Flint officials that cautioned against the use of Flint River water as a source of drinking water and despite the absence of any independent state scientific assessment of the suitability of using water drawn from the Flint River as drinking water.
On April 25, 2014, under the direction of then Flint Emergency Manager Earley and the [MDEQ,] Flint switched its water source from the DWSD to the Flint River and Flint water users began receiving Flint River water from their taps. This switch was made even though Michael Glasgow, the City of Flint’s water treatment plant’s laboratory and water quality supervisor, warned that Flint’s water treatment plant was not fit to begin operations. The 2011 study commissioned by city officials had noted that Flint’s long dormant water treatment plant would require facility upgrades costing millions of dollars.
Less than a month later, state officials began to receive complaints from Flint water users about the quality of the water coming out of their taps. Flint residents began complaining in June of 2014 that they were becoming ill after drinking the tap water. On October 13, 2014, General Motors announced that it was discontinuing the use of Flint water in its Flint plant due to concerns about the corrosive nature of the water. That same month, Flint officials expressed concern about a Legionellosis outbreak and possible 5
links between the outbreak and Flint’s switch to the river water. On February 26, 2015, the United States Environmental Protection Agency (“EPA”) advised the MDEQ that the Flint water supply was contaminated with iron at levels so high that the testing instruments could not measure the exact level. That same month, the MDEQ was also advised of the opinion of Miguel Del Toral of the EPA that black sediment found in some of the tap water was lead.
During this time, state officials failed to take any significant remedial measures to address the growing public health threat posed by the contaminated water. Instead, state officials continued to downplay the health risk and advise Flint water users that it was safe to drink the tap water while at the same time arranging for state employees in Flint to drink water from water coolers installed in state buildings. Additionally, the MDEQ advised the EPA that Flint was using a corrosion control additive with knowledge that the statement was false.
By early March 2015, state officials knew they faced a public health emergency involving lead poisoning and the presence of the deadly Legionella bacteria, but actively concealed the health threats posed by the tap water, took no measures to effectively address the dangers, and publicly advised Flint water users that the water was safe and that there was no widespread problem with lead leaching into the water supply despite knowledge that these latter two statements were false.
Through the summer and into the fall of 2015, state officials continued to cover up the health emergency, discredit reports from Del Toral of the EPA and Professor Marc Edwards of Virginia Tech confirming serious lead contamination in the Flint water system, conceal critical information confirming the presence of lead in the water system, and advise the public that the drinking water was safe despite knowledge to the contrary. In the fall of 2015, various state officials attempted to discredit the findings of Dr. Mona [Hanna]-Attisha of Hurley Hospital, which reflected a “spike in the percentage of Flint children with elevated blood lead levels from blood drawn in the second and third quarter of 2014.”
In early October of 2015, however, the Governor acknowledged that the Flint water supply was contaminated with dangerous levels of lead. He ordered Flint to reconnect to the Detroit water system on October 8, 2015, with the reconnection taking place on October 16, 2015. This suit followed. [ Mays v Governor , unpublished opinion of the Court of Claims, issued October 26, 2016 (Docket No. 16-000017-MM), pp 3-6 (citation omitted).] 6
Plaintiffs brought suit against defendants in the Court of Claims, alleging, in part, a claim for inverse condemnation and seeking economic damages both for the physical harm done to their property as well as the diminution of their property’s value. Plaintiffs alleged that despite both sets of defendants knowing that the Flint River water was toxic and corrosive, the state defendants authorized the city defendants to service their property with the Flint River water. As a result, plaintiffs alleged that their pipes, service lines, and water heaters were damaged. Plaintiffs also alleged that after the water crisis had become public knowledge, their property’s value substantially declined.
Plaintiffs additionally brought a claim for violation of their right to bodily integrity under the Michigan Constitution’s Due Process Clause, Const 1963, art 1, § 17. Plaintiffs alleged that despite knowing the dangers associated with switching the city of Flint’s water source to the Flint River, defendants made the switch with indifference to the known serious medical risks and then misled and deceived the public while concealing information about the toxicity and corrosiveness of the water. Plaintiffs alleged that they sustained personal injury from using and ingesting the Flint water as a result of defendants’ actions. Specifically, plaintiffs alleged that as a result of ingesting the tainted water, they have suffered physical symptoms, such as neuropathy, sleepiness, gastrointestinal discomfort, dermatological disorders, hair loss, and other symptoms, as well as substantial economic losses from their medical expenses and lost wages. Plaintiffs also alleged that some Flint citizens suffered life-threatening and irreversible bodily injuries.
The state defendants and the city defendants brought separate motions for summary disposition under MCR 2.116(C)(4), (7), and (8). Both sets of defendants argued that plaintiffs failed to satisfy the statutory notice requirements in MCL 600.6431 of the Court
7 *14 of Claims Act (COCA), MCL 600.6401 et seq .; that plaintiffs failed to allege facts to establish a constitutional claim under the Michigan Constitution’s Due Process Clause for violation of their right to bodily integrity; that a judicially inferred damages remedy for such a claim is inappropriate; and that plaintiffs otherwise failed to allege sufficient facts to establish the legal elements of their claims.
In an opinion and order, the Court of Claims granted partial summary disposition to defendants and in other respects denied defendants’ motions for summary disposition. The Court of Claims determined that plaintiffs satisfied the statutory notice requirements and adequately pleaded claims of inverse condemnation and a violation of their right to bodily integrity. The state defendants appealed, and the city defendants and plaintiffs filed cross- appeals.
In a published opinion, the Court of Appeals affirmed the Court of Claims’ rulings
on the statutory notice requirements, plaintiffs’ claim of violation of their right to bodily
integrity, and plaintiffs’ claims of inverse condemnation.
Mays v Governor
, 323 Mich App
1; 916 NW2d 227 (2018). Both the state defendants and the city defendants then filed
applications for leave to appeal in this Court. We granted leave to appeal and heard oral
argument on defendants’ applications.
Mays v Governor
,
8
II. ANALYSIS A. INVERSE CONDEMNATION
1. STANDARD OF REVIEW
Defendants moved for summary disposition of plaintiffs’ inverse-condemnation claim under MCR 2.116(C)(8). This Court reviews a motion for summary disposition under MCR 2.116(C)(8) for the legal sufficiency of a claim. El-Khalil v Oakwood Healthcare, Inc , 504 Mich 152, 159; 934 NW2d 665 (2019). We accept all factual allegations in the complaint as true, deciding the motion on the pleadings alone. Id . at 160. “A motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery.” Id .
2. LEGAL BACKGROUND
The Fifth Amendment of the United States Constitution and Article 10, § 2 of
Michigan’s 1963 Constitution prohibit the taking of private property without just
compensation. US Const, Am V; Const 1963, art 10, § 2. A claim of inverse condemnation
is “a cause of action against a governmental defendant to recover the value of property
which has been taken . . . even though no formal exercise of the power of eminent domain
has been attempted by the taking agency.”
Merkur Steel Supply, Inc v Detroit
, 261 Mich
App 116, 129;
“[A] plaintiff alleging inverse condemnation must prove a causal connection
between the government’s action and the alleged damages.”
Hinojosa v Dep’t of Natural
Resources
,
The right to just compensation, in the context of an inverse condemnation suit for diminution in value . . . exists only where the landowner can allege a unique or special injury, that is, an injury that is different in kind, not simply in degree, from the harm suffered by all persons similarly situated.
3. PLAINTIFFS ADEQUATELY ALLEGED A CLAIM OF INVERSE CONDEMNATION
With respect to the first element of an inverse-condemnation claim, plaintiffs allege that switching the water source from the DWSD to the Flint River resulted in physical damage to pipes, service lines, and water heaters. Plaintiffs also allege that the contaminated water limited the use of their property and substantially impaired its value and marketability because after the water crisis became public knowledge, lenders were hesitant to authorize loans for the purchase of realty within Flint and property values *17 “plummeted.” Taking these factual allegations as true, as we are required to do, we conclude that plaintiffs sufficiently alleged that defendants’ actions were a substantial cause of the decline of their property’s value. See MCR 2.116(C)(8); El-Khalil , 504 Mich at 160.
With respect to the second element of an inverse-condemnation claim, defendants
argue that plaintiffs have failed to allege that they abused their powers and took affirmative
actions directed at plaintiffs’ property. Again, we disagree. Plaintiffs allege that
defendants committed an affirmative act directed at their property when the state
defendants authorized the city defendants to use the Flint River as an interim water source
while both sets of defendants knew that using the river could result in harm to property.
Defendants then allegedly concealed or misrepresented data and made false statements
about the safety of the river water in an attempt to downplay the risk of its use and
consumption. The state defendants argue that if there were an affirmative act that was
directed at the plaintiffs’ property, it was the city defendants who effectuated the act, not
the state defendants. While discovery may bear evidence that supports this conclusion, at
this stage of proceedings, we must accept all of plaintiffs’ allegations as true. See MCR
2.116(C)(8);
El-Khalil
,
Finally, defendants argue that plaintiffs have not alleged a unique or special injury different in kind from the harm suffered by those similarly situated. In their analysis, defendants attempt to define those similarly situated to plaintiffs as other Flint water users. Defendants then contend that plaintiffs’ injury is no different in kind from the harm *18 suffered by those individuals and, thus, plaintiffs’ inverse-condemnation claim fails. The Court of Appeals rejected defendants’ arguments, determining that plaintiffs are similarly situated to municipal water users generally and that they suffered a unique or special injury when compared to those similarly situated. We agree that defendants’ analysis is flawed.
Fundamentally, we disagree with defendants as to how to define those who are
similarly situated to plaintiffs. In
Richards v Washington Terminal Co
,
Similarly, in
Thom v State Highway Comm’r
,
When taken together, in determining whether the plaintiffs suffered a unique or
special injury, the United States Supreme Court and this Court have compared the plaintiffs
to a generalized group of individuals who experience a similar but not identical harm. In
parsing this inquiry, the United States Supreme Court and this Court have analyzed whether
the harm the plaintiff suffers is part of the “common burden” shared among all, which, if
not imposed, would halt a socially necessary activity, or whether the harm “naturally and
unavoidably result[s]” in a taking unique to that plaintiff.
Richards
,
In Richards , the United States Supreme Court explained that railroads are a public necessity, much like highways, so proprietors are immune to suit for “incidental damages accruing to owners of nonadjacent land through the proper and skillful management and operation of the railways.” Id . When diminution of value to private property is not “peculiar[]” but is merely “sharing in the common burden of incidental damages arising from the legalized nuisance,” there is no “taking” in the constitutional sense. Id . Damages *20 that are part of the “common burden” are “such damages as naturally and unavoidably result from the proper conduct of the road and are shared generally by property owners whose lands lie within range of the inconveniences necessarily incident to proximity to a railroad.” Id . Absent such a distinction, the “practical result would be to bring the operation of railroads to a standstill.” Id . at 555. The doctrine, “being founded upon necessity, is limited accordingly.” Id .
In Richards , the United States Supreme Court compared the plaintiffs to all property owners who lived next to the railway, not those whose property was also in close proximity to the rail tunnel’s fan system. Id . at 556. Although members of the public share a “common burden” for the benefit of railroads that includes noise and vibration, the direct fanning of train pollution into a home was deemed to be a unique and uncommon burden that rendered the harm a compensable taking. Id . at 554, 556.
This Court has ruled similarly. In
Thom
and
Hill
, this Court reasoned that no taking
occurs when a property owner’s use of streets is limited in the same way as the rest of the
traveling public but that a taking does occur when a property owner’s individual access to
an abutting highway is completely foreclosed.
Thom
,
We recognize that users of public water systems may routinely experience gaps in
service and externalities associated with system construction and maintenance. These
types of frustrations are common burdens shared by members of society for the provision
of water. However, in their amended complaint, plaintiffs allege that the state defendants
authorized the city defendants to use the Flint River as an interim water source despite both
sets of defendants knowing the potential harm of doing so. Plaintiffs contend that after the
switch to the Flint River was effectuated, water contaminated with Legionella bacteria and
toxic levels of iron and lead flowed through their pipes, service lines, and water heaters,
which damaged the infrastructure and diminished their property’s value. These alleged
injuries are clearly different in kind, not just degree, from harms that municipal water users
experience generally, e.g., service disruptions and externalities associated with
construction. Moreover, plaintiffs’ allegations do not “naturally and unavoidably result”
from the provision of public water.
Richards
,
In sum, we conclude that plaintiffs have sufficiently alleged a claim of inverse condemnation to survive a motion for summary disposition brought under MCR 2.116(C)(8). Viewed in the light most favorable to plaintiffs and accepting their factual allegations as true, we hold that the pleadings establish that defendants’ actions were a *22 substantial cause of the decline in plaintiffs’ property value, that defendants took affirmative actions directed at plaintiffs’ property, and that plaintiffs suffered a unique or special injury different in kind, not simply in degree, from the harm suffered by all persons similarly situated.
B. STATUTORY NOTICE REQUIREMENTS The Court of Appeals also concluded that a genuine issue of material fact existed regarding whether plaintiffs satisfied the statutory notice requirements of MCL 600.6431. We agree. On this issue, the Court of Appeals is affirmed by equal division.
1. STANDARD OF REVIEW Defendants argue that the Court of Claims erred when it denied their motions for summary disposition under MCR 2.116(C)(4) and (7) because plaintiffs failed to satisfy the statutory notice requirements of MCL 600.6431. We disagree.
A motion for summary disposition under MCR 2.116(C)(4) tests the trial court’s
subject-matter jurisdiction. We review a trial court’s decision on a motion for summary
disposition under MCR 2.116(C)(4) de novo.
Travelers Ins Co v Detroit Edison Co
, 465
Mich 185, 205;
A motion for summary disposition brought under MCR 2.116(C)(7) may be granted
when a claim is barred by immunity.
Maiden
,
2. LEGAL BACKGROUND
State and municipal agencies performing governmental functions are generally
immune from tort liability.
McCahan
,
One condition on the right to sue state governmental agencies is the notice provision of the COCA. The pertinent provisions of the COCA, MCL 600.6431(1) and (3), provide:
(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued , files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.
* * * (3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a *24 claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action . [Emphasis added.]
For purposes of statutory limitations periods, our Legislature has stated that a claim
accrues “at the time the wrong upon which the claim is based was done,” MCL 600.5827,
and this Court has clarified that “the wrong . . . is the date on which the defendant’s breach
harmed the plaintiff, as opposed to the date on which defendant breached his duty,”
Frank
v Linkner
, 500 Mich 133, 147; 894 NW2d 574 (2017) (quotation marks and citation
omitted). A claim does not accrue until each element of the cause of action, including some
form of damages, exists. See
Henry v Dow Chem Co
,
3. QUESTIONS OF FACT REMAIN AS TO WHEN PLAINTIFFS SUSTAINED THEIR INJURIES
As noted by the Court of Appeals, plaintiffs filed their complaint on January 21, 2016, without having filed a separate notice of intention to file a claim. In their complaint, plaintiffs assert that their constitutional-tort claim accrued on October 16, 2015, [8] when defendants reconnected the Flint water system to the water supplied by DWSD. Defendants argue that plaintiffs’ claims accrued, and the statutory notice period thus began to run, in either June 2013, when plaintiffs allege that the state authorized the use of the *25 Flint River water, or on April 25, 2014, when Flint’s water source was actually switched to the Flint River. On this basis, defendants suggest that regardless of which date is chosen, plaintiffs’ complaint was not filed within the six-month statutory notice period required by MCL 600.6431(3). We disagree.
In
Henry v Dow Chem Co
, this Court held that the relevant statutory limitations
period began running “from ‘the time the claim accrues,’ ” which is when “ ‘the wrong
upon which the claim is based was done regardless of the time when damage results.’ ”
Henry v Dow Chem Co
, 501 Mich 965, 965 (2018), quoting MCL 600.5827 and citing
Trentadue v Buckler Automatic Lawn Sprinkler Co
,
Justice M ARKMAN ’s dissent argues that our holding in
Henry
means that the accrual
date here should be April 25, 2014, when plaintiffs were first exposed to water from the
Flint River. However, we note that
Henry
was decided by order and contained no in-depth
analysis; instead, the order relied heavily on language from
Trentadue
.
Henry
cites
Trentadue
for the proposition that “[t]he wrong is done when the plaintiff is harmed,”
Henry
,
To the extent that
Henry
can be read to support the proposition that the accrual date
began at the point when dioxin reached the plaintiffs’ properties, the order in
Henry
noted
*26
that “the claimed harm to the plaintiffs in this case is the presence of dioxin in the soil of
their properties.”
Henry
,
Because we agree that whether plaintiffs’ complaint was timely filed and when their
specific claims accrued are questions to be resolved in further proceedings, we conclude
Plaintiffs’ amended complaint alleges
numerous separate
harms resulting from tortious
acts. These allegations are different from a continuing harm resulting from a
single
tortious
act. For purposes of determining the accrual date of plaintiffs’ claims, each of plaintiffs’
individual causes of action must be considered separately. See
Joliet v Pitoniak
, 475 Mich
30, 42;
Moreover, we disagree with Justice M ARKMAN ’s characterization of Hart v Detroit , *28 that it is unnecessary to address whether any exceptions to the MCL 600.6431(3) notice requirement apply.
C. INJURY TO BODILY INTEGRITY Defendants argue that the Court of Appeals erred by determining that plaintiffs sufficiently pleaded a claim for violation of their substantive due-process right to bodily integrity under Const 1963, art 1, § 17. Defendants also argue that the Court of Appeals erred by recognizing the availability of a damages remedy for plaintiffs’ claim. We again disagree. Instead, we believe that the Court of Appeals properly held that plaintiffs pleaded a cognizable claim for violation of their right to bodily integrity under the Due Process Clause of Michigan’s Constitution. Given that this case is still in the very early stages of the proceedings, we decline to hold at this point that monetary damages are unavailable for this claim. On this issue, the Court of Appeals is again affirmed by equal division.
1. STANDARD OF REVIEW
Defendants moved for summary disposition of plaintiffs’ violation-of-bodily-
integrity claim under MCR 2.116(C)(7) and (8). Summary disposition is appropriate under
MCR 2.116(C)(7) when a claim is barred by immunity.
Maiden
,
2. LEGAL BACKGROUND
The Legislature has never created an exception to immunity for a constitutional tort.
Nonetheless, this Court has recognized that when a plaintiff brings a “constitutional tort”
against the state, in certain instances, the government is not immune from liability for
violations of its Constitution.
Smith v Dep’t of Pub Health
,
Smith was a divided memorandum opinion, but two of the pertinent tenets that a majority of four were able to agree on were the following:
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. [ Smith ,428 Mich at 544 .]
The
Smith
opinion was silent as to why a majority of the Court had agreed on these tenets.
A later Court of Appeals panel noted that this lack of analysis was due to the justices’
differing views, given that “the Court was only able to agree on the bare proposition that
‘[a] claim for damages against the state arising from violation by the state of the Michigan
*30
Constitution may be recognized in appropriate cases.’ ”
77th Dist Judge v Michigan
, 175
Mich App 681, 693;
After
Smith
, courts have cited Justice B OYLE ’s separate opinion in
Smith
to explain
the reasoning behind the majority’s holding that constitutional torts may be recognized in
certain circumstances. See, e.g.,
Jones v Powell
,
Assuming the plaintiff proves an unconstitutional act by the state which is otherwise appropriate for a damage remedy, the question which confronts this Court is whether sovereign or governmental immunity shields the state from liability for damages for its alleged acts which violate our state constitution. We would hold that neither common-law sovereign immunity nor the governmental immunity found in MCL 691.1407; MSA 3.996(107) bars recovery.
In our constitutional form of government, the sovereign power is in the people, and “[a] Constitution is made for the people and by the people.” Michigan Farm Bureau v Secretary of State ,379 Mich 387 , 391; 151 NW2d 797 (1967) (quoting Cooley, Constitutional Limitations [6th ed], p 81). The Michigan Constitution is a limitation on the plenary power of government, and its provisions are paramount. See, generally, Dearborn Twp v Dearborn Twp Clerk ,334 Mich 673 , 688;55 NW2d 201 (1952). It is so basic as to require no citation that the constitution is the fundamental law to which all other laws must conform. . . .
In light of the preeminence of the constitution, statutes which conflict with it must fall. . . .
MCL 691.1407; MSA 3.996(107) does not, by its terms, declare immunity for unconstitutional acts by the state. The idea that our Legislature would indirectly seek to “approve” acts by the state which violate the state *31 constitution by cloaking such behavior with statutory immunity is too far- fetched to infer from the language of MCL 691.1407; MSA 3.996(107). We would not ascribe such a result to our Legislature.
Neither does common-law sovereign immunity immunize the state from liability for its alleged unconstitutional acts. This Court abrogated common-law sovereign immunity in Pittman v City of Taylor ,398 Mich 41 ;247 NW2d 512 (1976). Even absent such general abrogation, however, we would decline to apply sovereign immunity to violations by the state of our state constitution. The curious doctrine of sovereign immunity in America, subject to great criticism over the years, see, generally, Jaffe, Suits against governments and officers: Sovereign immunity , 77 Harv L R 1 (1963), should, as a matter of public policy, lose its vitality when faced with unconstitutional acts of the state. The primacy of the state constitution would perforce eclipse the vitality of a claim of common-law sovereign immunity in a state court action for damages.
. . . For “constitutional torts,” liability should only be imposed on the state in cases where a state “custom or policy” mandated the official or the employee’s actions. . . .
The state’s liability should be limited to those cases in which the state’s liability would, but for the Eleventh Amendment, render it liable under the 42 USC 1983 standard for local governments articulated in Monell v New York City Dep’t of Social Services ,436 US 658 ;98 S Ct 2018 ; 56 L Ed 2d 611 (1978). [12] Liability should be imposed on the state only where the action of a state agent “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers . . . [or] governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Id ., pp 690-691. [ Smith , 428 Mich at 640-643 (B OYLE , J., concurring in part and dissenting in part).]
3. HISTORICAL RECOGNITION OF CONSTITUTIONAL TORTS Defendants contend that historically, courts have not recognized actions against the state when no waiver of immunity has occurred. Although defendants’ general assertion *32 might be true, our precedent with regard to constitutional torts is more nuanced. Michigan courts have indeed recognized the existence of constitutional torts as outlined in Smith and, in certain circumstances, have allowed constitutional-tort claims to survive motions for summary disposition.
The Court of Appeals has repeatedly relied on
Smith
to recognize that immunity is
not available in a state-court action in which it is alleged that the state has violated a right
conferred by the Michigan Constitution. See
Burdette v Michigan
,
In
Jones
, 462 Mich at 336-337, this Court declined to apply a constitutional-tort
theory to claims made against a municipality but nevertheless recognized that the theory
provided a remedy, albeit a “narrow remedy” against the state. In
Lewis v Michigan
, 464
Mich 781, 786;
4. PLAINTIFFS SUFFICIENTLY ALLEGE A CONSTITUTIONAL TORT FOR
VIOLATION OF THEIR BODILY INTEGRITY
We also recognize that when a plaintiff alleges a constitutional tort like the one
alleged in this case, recovery is available for constitutional violations pursuant to a state
custom or policy and may survive the state’s claims of immunity.
Smith
,
The Court of Appeals provided an extensive history of the development of the right to bodily integrity:
Violation of the right to bodily integrity involves “an egregious, nonconsensual entry into the body which was an exercise of power without any legitimate governmental objective.” Rogers v Little Rock, Arkansas , 152 F3d 790, 797 (CA 8, 1998), citing Sacramento Co v Lewis ,523 US 833 , 847 n 8;118 S Ct 1708 ;140 L Ed 2d 1043 (1998). . . . [T]o survive dismissal, the alleged “violation of the right to bodily integrity must be so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Villanueva v City of Scottsbluff ,779 F3d 507 , 513 (CA 8, 2015) (quotation marks and citation omitted); see also Mettler Walloon, LLC v Melrose Twp , *34 281 Mich App 184, 198; 761 NW2d 293 (2008) (explaining that in the context of individual governmental actions or actors, to establish a substantive due-process violation, “the governmental conduct must be so arbitrary and capricious as to shock the conscience”).
“Conduct that is merely negligent does not shock the conscience, but ‘conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience- shocking level.’ ” Votta v Castellani , 600 F Appx 16, 18 (CA 2, 2015), quoting Sacramento Co ,523 US at 849 . At a minimum, proof of deliberate indifference is required. McClendon v City of Columbia ,305 F3d 314 , 326 (CA 5, 2002). A state actor’s failure to alleviate “a significant risk that he should have perceived but did not” does not rise to the level of deliberate indifference. Farmer v Brennan ,511 US 825 , 838;114 S Ct 1970 ; 128 L Ed 2d 811 (1994). To act with deliberate indifference, a state actor must “ ‘know[] of and disregard[] an excessive risk to [the complainant’s] health or safety.’ ” Ewolski v City of Brunswick ,287 F3d 492 , 513 (CA 6, 2002), quoting Farmer , 511 US at 837. “The case law . . . recognizes official conduct may be more egregious in circumstances allowing for deliberation . . . than in circumstances calling for quick decisions . . . .” Williams v Berney ,519 F3d 1216 , 1220-1221 (CA 10, 2008). [ Mays , 323 Mich App at 60-61.]
With this framing of the elements of plaintiffs’ claim in mind, we affirm the Court of Appeals and conclude that plaintiffs have alleged facts that, if proved, support a claim for a constitutional violation by defendants.
Plaintiffs allege that defendants’ decision to switch the city of Flint’s water source to the Flint River, which defendants knew was contaminated, resulted in a nonconsensual entry of toxic water into plaintiffs’ bodies. Plaintiffs contend that defendants neglected to upgrade Flint’s water-treatment system before switching to the Flint River despite knowing and being warned that the system was inadequate. After receiving information that suggested the Flint River was contaminated with bacteria, toxic levels of lead, and other contaminants, defendants allegedly concealed scientific data and made misleading statements about the safety of the Flint River water.
There is obviously no legitimate governmental objective in poisoning citizens.
Plaintiffs’ allegations, if true, are so egregious and outrageous that they shock the
contemporary conscience and support a finding of defendants’ deliberate indifference to
plaintiffs’ health and safety. See
Villanueva
,
Plaintiffs have also alleged that a state “custom or policy” mandated the actions that led to the violation of their substantive due-process right to bodily integrity. Smith , 428 Mich at 544. The state and its officials will only be held liable for violation of the state Constitution “ ‘in cases where a state “custom or policy” mandated the official or employee’s actions.’ ” Carlton , 215 Mich App at 505, quoting Smith , 428 Mich at 642 (B OYLE , J., concurring in part and dissenting in part). As the Court of Appeals noted:
Official governmental policy includes “the decisions of a government’s lawmakers” and “the acts of its policymaking officials.” Johnson v VanderKooi , 319 Mich App 589, 622; 903 NW2d 843 (2017) (quotation *36 marks and citation omitted). See also Monell ,436 US at 694 (stating that a governmental agency’s custom or policy may be “made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy”). A “single decision” by a policymaker or governing body “unquestionably constitutes an act of official government policy,” regardless of whether “that body had taken similar action in the past or intended to do so in the future[.]” Pembaur v Cincinnati ,475 US 469 , 480;106 S Ct 1292 ;89 L Ed 2d 452 (1986). . . . The [United States Supreme] Court clarified that not all decisions subject governmental officers to liability. Id . at 481. Rather, it is “where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Id . at 483. [ Mays ,323 Mich App at 63-64 .]
Plaintiffs allege that the city of Flint’s choice to provide Flint residents with the Flint River water was approved and implemented by the state defendants, arguing that both sets of defendants were decision-makers in the adoption of a plan that, once effectuated, resulted in violations of their substantive due-process rights. Defendants then purportedly made decisions to conceal the consequences of the water-source switch and misled the public about the safety of the Flint River water. Plaintiffs allege that defendants’ aforementioned actions exposed them to unnecessary harm for months after the switch was made. Plaintiffs’ allegations, if proved, support a conclusion that defendants considered an array of options and made a deliberate choice to effectuate the Flint River switch despite knowing the potential harms of doing so.
Having reviewed plaintiffs’ allegations in their totality, we conclude that plaintiffs pleaded a recognizable due-process claim under Michigan’s Constitution for a violation of their right to bodily integrity.
5. DAMAGES REMEDY Because we have determined that plaintiffs’ allegations, if proved, are sufficient to sustain a constitutional tort against defendants, we must next determine whether it is appropriate to recognize a damages remedy for the constitutional violation. Not every constitutional violation merits damages. However, at this point in the litigation, we are not prepared to foreclose the possibility of monetary damages.
This Court has never explicitly endorsed a test for assessing a damages inquiry for a constitutional violation. However, we agree with the Court of Claims and the Court of Appeals that the multifactor test elaborated in Justice B OYLE ’s separate opinion in Smith provides a framework for assessing the damages inquiry. Under that test, we weigh various factors, including (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 for or against a judicially inferred damages remedy. See Smith , 428 Mich at 648-652 (B OYLE , J., concurring in part and dissenting in part). At this stage of the proceedings, we accept plaintiffs’ allegations as true and review them in a light most favorable to plaintiffs.
As to the first factor, we have already determined that plaintiffs set forth allegations to establish a clear violation of the Michigan Constitution. We therefore conclude that the first factor weighs in favor of a judicially inferred damages remedy.
As to the second and third factors, in Smith , Justice B OYLE recognized that the protections of the Due Process Clause are not as “clear-cut” as specific protections found elsewhere in the Constitution. Id . at 651. Indeed, we have not found a decision of a Michigan appellate court expressly recognizing a protection under the Due Process Clause of the Michigan Constitution or an independent constitutional tort for violation of the right to bodily integrity. We therefore conclude that the second and third factors weigh somewhat against recognition of a damages remedy.
As to the fourth factor, the availability of an alternative remedy, we must determine
whether plaintiffs have any available alternative remedies for their constitutional-tort claim
against these specific defendants. Defendants argue that this fourth factor is dispositive
and that the availability of any other remedy forecloses the possibility of a judicially
inferred damages remedy in this case. Citing
Jones
,
We conclude that because defendants enjoy expansive immunity under federal and
state law, plaintiffs have no alternative recourse to vindicate their rights beyond bringing a
constitutional-tort claim under Michigan’s Constitution. Any suit brought in federal court
for monetary damages under 42 USC 1983 for violation of rights granted under the federal
Constitution or a federal statute cannot be maintained in any court against a state, a state
agency, or a state official sued in his or her official capacity because the Eleventh
Amendment affords the state and its agencies immunity from such liability. See
Howlett v
Rose
,
Generally, under state law, state-government employees acting within the scope of their authority are immune from tort liability unless their actions constitute gross negligence, MCL 691.1407(2), and even if governmental employees are found liable for gross negligence, the state may not be held vicariously liable unless an exception to governmental immunity applies under the governmental tort liability act, MCL 691.1401 et seq. State agencies are also “immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). *40 Moreover, the Local Financial Stability and Choice Act, MCL 141.1541 et seq ., grants emergency managers immunity from liability as provided in MCL 691.1407. MCL 141.1560(1).
Defendants suggest that plaintiffs’ injuries can be vindicated under the federal Safe
Drinking Water Act (SDWA), 42 USC 300f
et seq
., and the Michigan Safe Drinking Water
Act (MSDWA), MCL 325.1001
et seq
. We disagree. The SDWA and MSDWA do not
provide a right to address constitutional violations. As the United States Court of Appeals
for the Sixth Circuit recognized in a federal case arising from the Flint water crisis, the
protections of the SDWA and the federal Constitution “are ‘not . . . wholly congruent’ ”
and would not foreclose constitutional claims arising under the federal Constitution. See
Boler v Earley
,
Finally, as to the fifth factor, which directs us to assess all other relevant considerations, we agree with the Court of Appeals that it is appropriate to give substantial weight to the shocking and outrageous nature of defendants’ alleged conduct. Plaintiffs present allegations involving one of the most troublesome breaches of public trust in this *41 state’s history, with catastrophic consequences for Flint citizens’ health, well-being, and property. If plaintiffs’ allegations are proved true, we agree that the nature of defendants’ alleged constitutional violations weighs markedly in favor of recognizing a damages remedy.
In considering each of these five factors, recognizing that discovery has yet to take place and accepting plaintiffs’ allegations as true, we believe that a damages remedy for plaintiffs’ claim of violation of their right to bodily integrity under Const 1963, art 1, § 17 might be the appropriate remedy for plaintiffs’ harms.
III. CONCLUSION We expressly affirm the Court of Appeals with regard to plaintiffs’ inverse- condemnation claim. In all other aspects, the Court of Appeals opinion is affirmed by equal division. MCR 7.315(A). We remand to the Court of Claims for further proceedings consistent with this opinion.
Richard H. Bernstein Bridget M. McCormack Megan K. Cavanagh *42 S T A T E O F M I C H I G A N SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157335-7 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157340-2 *43 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants. B ERNSTEIN , J. ( concurring ).
This Court should never elevate adherence to convoluted legalism and procedure over the well-being of Michigan’s people. Plaintiffs in this case raise some of the most disturbing allegations of malfeasance by government actors in Michigan’s history.
Before highlighting the facts of this case, it is hard not to acknowledge the unique natural resources Michigan possesses. The state of Michigan holds the largest freshwater reserves of any state in our nation. Yet, plaintiffs allege that in an effort to save a relatively small amount of money in the context of sizable municipal budgets, the state of Michigan and former Governor Snyder’s administration disregarded the known dangers of switching Flint’s municipal water source, used without incident for nearly 60 years, to the Flint River. At the time of plaintiffs’ alleged injuries, the city of Flint was under the financial management of the state, purportedly for the city’s own benefit. Plaintiffs contend that the state defendants authorized state-appointed emergency managers to provide them with water that was contaminated with toxic levels of lead, E. coli, and Legionella bacteria. Before the switch, defendants purportedly knew that the Flint River was contaminated and
2 *44 that water from the Flint River was dangerous to consume and use. Without taking the proper steps to ensure that Flint’s drinking water was safe, defendants nevertheless initiated the water-source switch to the Flint River. Defendants then allegedly misled the public and obfuscated the extent of the water crisis to quell its potential fallout. After the water switch was initiated, plaintiffs contend that they suffered significant personal injury and economic loss from damage to their property. They allege that their properties’ values diminished after the full extent of the water crisis became public. This lawsuit followed.
After nearly six years of litigation, this Court is tasked with answering one simple question: do plaintiffs possess the right to sue the government and its actors in their official capacities for their injuries? I believe the answer to that question is obvious. It is particularly important to note that this Court’s decision will affect not only the named plaintiffs in this case but thousands of other citizens who experienced similar injuries and losses from the use and ingestion of contaminated Flint River water. The putative class surely includes seniors with preexisting health conditions, pregnant individuals, and, of course, young children who will likely experience the most significant and life-altering effects of lead poisoning.
Even when presented with this context, two of my dissenting colleagues would dismiss plaintiffs’ claims because of purported procedural defects in their pleadings. By way of highly legalistic analyses, they would deny plaintiffs the opportunity to conduct any discovery, proceed with their case, and prove their claims. I write this separate opinion, in part, to counter Justice M ARKMAN ’s arguments about plaintiffs’ purported failure to adhere to the Court of Claims Act’s (COCA) statutory notice requirements. As the lead opinion explains, I believe that questions of fact remain as to when plaintiffs’ claims
3 *45 accrued. Dismissing plaintiffs’ claims at this juncture, in my view, would therefore be premature. However, regardless of which dates the harms plaintiffs allege are later determined to have occurred and accrued, I believe that two exceptions to the COCA’s statutory notice requirement might still apply.
I write also to briefly counter Justice V IVIANO ’s argument that this Court should deny plaintiffs the right to sue for their personal injuries and deny a damages remedy because the Legislature has not explicitly created a right to bodily integrity with such a remedy. It is well known that this Court is the sole institution that may interpret and define the parameters of Michigan’s Constitution. That being the case, I am completely unfazed that the Legislature has not explicitly created a statutory right to bodily integrity. In my opinion, plaintiffs may proceed with their claim because the Michigan Constitution’s Due Process Clause, Const 1963, art 1, § 17, encompasses the right to bodily integrity.
I. ANALYSIS A. STATUTORY NOTICE REQUIREMENTS Plaintiffs allege that defendants attempted to conceal the water crisis from the public and misled them for months before acknowledging the toxic and corrosive nature of the water from the Flint River. Defendants argue that plaintiffs’ claims should be dismissed because plaintiffs failed to file the claims in a timely manner. The irony of defendants’ argument, given that defendants are accused of concealing the existence of plaintiffs’ potential claims, is not lost on me.
4
*46
1. THE HARSH-AND-UNREASONABLE-CONSEQUENCES EXCEPTION
Justice M ARKMAN argues that the Court of Appeals erred in applying the harsh-and-
unreasonable-consequences exception, see
Rusha v Dep’t of Corrections
, 307 Mich App
300, 312;
In
Rusha
, the plaintiff alleged constitutional claims against the state for failing to
treat his multiple sclerosis during his incarceration, but he failed to file a notice of intent to
file a claim within six months of the alleged injury pursuant to MCL 600.6431.
Rusha
,
5 *47 But I would not find such conflict to exist and would instead find our past precedent to be distinguishable. Rowland , [1] Trentadue , [2] and McCahan [3] each demanded strict compliance with statutory limitations and notice requirements in the context of legislatively granted rights rather than rights granted under the Constitution. However, this Court has never held that constitutional claims against the state—and due-process claims in particular—should be treated like the personal-injury claims raised in Rowland and McCahan . Indeed, a separate concurrence in Bauserman v Unemployment Ins Agency , 503 Mich 169, 194; 931 NW2d 539 (2019) (M C C ORMACK , C.J., concurring), questioned whether the strict-notice rules from Rowland and McCahan should apply to constitutional claims against the state. The concurrence noted:
[W]e have not held that the same [rules from Rowland and McCahan are] true of constitutional claims generally, or due-process claims in particular. And I’m not sure we should: Rowland ’s governmental-immunity rationale is less persuasive in the constitutional context. The Rowland and McCahan plaintiffs’ substantive claims (for personal injuries resulting from a defective highway condition in Rowland , and for automobile tort liability in McCahan ) existed only by legislative grace—there is no constitutional guarantee of safe
roads or payment of personal injury benefits. The state enjoys broad immunity from suit unless it waives its immunity by creating a statutory right of action; the Legislature may place whatever conditions it wishes on rights of its own creation, including a notice requirement. And courts shouldn’t undermine those legislatively created conditions.
But it is the Constitution that forbids the government from depriving a person of his property without due process of law. The Legislature is not the source of the due-process right (more often its target), so the fundamental principle that animated our decisions in Rowland and McCahan isn’t implicated here. Whether and how much the Legislature can limit a person’s ability to pursue a due-process claim is a first-principles question: A strict- compliance interpretation of the MCL 600.6431(3) notice requirement applied to a due-process claim will permit the Legislature to burden or curtail constitutional rights. How much of a burden is too much?
To be sure, the due-process right, like any other constitutional right, is not absolute. “A constitutional claim can become time-barred just as any other claim can. Nothing in the Constitution requires otherwise.” Block v North Dakota , 461 US 273, 292; 103 S Ct 1811; 75 L Ed 2d 840 (1983) (citations omitted). Constitutional remedies may be “subject to a reasonable time bar designed to protect other important societal values.” Hair v United States , 350 F3d 1253, 1260 (CA Fed, 2003). The Legislature may, at its discretion, restrict or change “the forms of action or modes of remedy . . . provided adequate means of enforcing the right remain. In all such cases, the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable.” Terry v Anderson ,95 US 628 , 633;24 L Ed 365 (1877).
But that’s the question: is the six-month, no-exceptions notice provision reasonable when the government has taken a person’s property without due process? . . . Hypotheticals show why it’s a hard question: If the Legislature enacted a statute that required me to notice my intent to challenge a local ordinance that limits gun ownership to one weapon per household within 24 hours of having my weapon confiscated, we would surely be troubled by that barrier to my ability to vindicate my Second Amendment rights. And likewise if I wait 50 years to complain that denial of a park permit for my annual church picnic violated the First Amendment, we would think it unfair for the government to be on the hook when there is likely no information available or witnesses around to contest the complaint. I don’t know where this six-month notice period for a claim that the state has 7
taken my tax refund without due process falls on that continuum.
[
Bauserman
,
In this case, even if it is later determined that plaintiffs failed to timely file a notice
of intention to file a claim under MCL 600.6431(3), I agree with the Court of Appeals that,
consistent with
Rusha
, the application of this procedural requirement to bar plaintiffs’
claims would not be reasonable under the circumstances. See
Terry
,
[T]his is not a case in which an ostensible, single event or accident has given rise to a cause of action, but one in which the event giving rise to the cause of action was not readily apparent at the time of its happening. Similarly, a significant portion of the injuries alleged to persons and property likely became manifest so gradually as to have been well established before becoming apparent to plaintiffs because the evidence of injury was concealed in the water supply infrastructure buried beneath Flint and in the bloodstreams of those drinking the water supplied via that infrastructure. Plaintiffs in this case did not wait more than two years after discovering their claims to file suit. Rather, they filed suit within six months of the state’s public acknowledgment and disclosure of the toxic nature of the Flint River water to which plaintiffs were exposed.
Further supporting the application of the harsh-and-unreasonable-
consequences exception to the requirement of statutory notice are plaintiffs’
allegations of affirmative acts undertaken by numerous state actors,
including named defendants, between April 25, 2014 and October 2015 to
conceal both the fact that the Flint River water was contaminated and
hazardous and the occurrence of any event that would trigger the running of
the six-month notice period. Under these unique circumstances, to file
statutory notice within six months of the date of the water source switch
would have required far more than ordinary knowledge and diligence on the
part of plaintiffs and their counsel. It would have required knowledge that
defendants themselves claim not to have possessed at the time plaintiffs’
causes of action accrued. [
Mays v Governor
,
8 *50 afforded the opportunity to conduct discovery and support their allegations before their claims are dismissed. If their claims are proved but untimely, plaintiffs should be able to utilize the harsh-and-unreasonable-consequences exception.
2. THE FRAUDULENT-CONCEALMENT EXCEPTION Justice M ARKMAN and defendants argue that the Court of Appeals erred in reading the fraudulent-concealment exception of MCL 600.5855 to relieve plaintiffs from the notice requirements of MCL 600.6431. I disagree and would affirm the Court of Appeals’ ruling that the fraudulent-concealment exception of MCL 600.5855 applies to MCL 600.6431. If plaintiffs prove the allegations in their complaint, the exception may provide an alternative basis to deny defendants’ motions for summary disposition.
The Legislature created the fraudulent-concealment exception to relieve certain plaintiffs of statutes of limitations. The exception is codified in the Revised Judicature Act (RJA), MCL 600.101 et seq ., specifically MCL 600.5855, which states:
If a person who is or may be liable for any claim fraudulently conceals
the existence of the claim or the identity of any person who is liable for the
claim from the knowledge of the person entitled to sue on the claim, the
action may be commenced at any time within 2 years after the person who is
entitled to bring the action discovers, or should have discovered, the
existence of the claim or the identity of the person who is liable for the claim,
although the action would otherwise be barred by the period of limitations.
MCL 600.5855 allows for the tolling of a statutory limitations period for two years if a
defendant has fraudulently concealed the existence of a claim for which that defendant is
liable. A “plaintiff must plead in the complaint the acts or misrepresentations that
comprised the fraudulent concealment” and “prove that the defendant committed
*51
affirmative acts or misrepresentations that were designed to prevent subsequent
discovery.”
Sills v Oakland Gen Hosp
,
In crafting the COCA, the Legislature imported the RJA’s fraudulent-concealment exception, MCL 600.5855, into the COCA’s statute-of- limitations provision. See MCL 600.6452(2). MCL 600.6452(2) thus permits the commencement of an action within two years after a claimant discovers or should have discovered a fraudulently concealed claim. Yet, the statutory notice period of MCL 600.6431 prohibits the commencement of an action unless notice is filed within six months following the event giving rise to the cause of action or one year of the date on which the claim accrued. The Legislature did not create a fraudulent-concealment exception for the statutory notice provision in the COCA. See MCL 600.6431.
I conclude that the omission of a fraudulent-concealment exception to MCL
600.6431 is not reconcilable with the Legislature’s intent to provide claimants with two
years from the date of discovery to bring suit for harm that was fraudulently concealed, as
expressed in MCL 600.6452(2). The filing of a notice of intent to sue often occurs before
the actual filing of a complaint. If the fraudulent-concealment exception is not applied to
the statutory notice period in MCL 600.6431 and a claim is fraudulently concealed from a
plaintiff for more than six months, a plaintiff’s otherwise justiciable claim would always
be dismissed on notice grounds. The plaintiff would never have an ability to utilize the
Legislature’s fraudulent-concealment exception in MCL 600.6452(2) to toll the statutory
notice period. “[S]tatutory provisions are
not
to be read in isolation; rather, context matters,
and thus statutory provisions are to be read as a whole.”
Robinson v Lansing
,
The application of the fraudulent-concealment exception to statutory notice periods
does not undermine or frustrate the purpose of requiring timely statutory notice. As this
Court has previously recognized, the purpose of the notice provision in MCL 600.6431 is
to “establish[] a clear procedure” for pursuing a claim against the state and “eliminate[]
any ambiguity” about whether a claim will be filed.
McCahan
,
As the lead opinion states, whether plaintiffs can satisfy the exception is a factual question that necessitates further discovery. At this stage of the litigation, summary disposition on this ground would be inappropriate. If plaintiffs’ claims are proved but untimely, plaintiffs should be able to utilize a fraudulent-concealment exception to the COCA’s notice requirements.
B. A RIGHT TO BODILY INTEGRITY EXISTS IN MICHIGAN’S CONSTITUTION
Justice V IVIANO writes at length that a right to bodily integrity does not exist and that our Legislature has not enumerated and created a damages remedy for such a right in *53 Michigan law. But his analysis misses a fundamental point: this Court is the only institution that determines what our state’s Constitution means, and it does so independently of the Legislature’s action or inaction in a given area. It is this Court alone that may interpret our Constitution to encompass a right to bodily integrity. I believe that if our state’s Constitution is to hold any tangible meaning, surely this is the case in which a remedy for such a constitutional violation must be recognized. I would hold that the Due Process Clause of Michigan’s Constitution includes a right to bodily integrity.
Michigan’s Due Process Clause states, “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.” Const 1963, art 1, § 17. When the Court construes our
Constitution, it is “a fundamental principle of constitutional construction that we determine
the intent of the framers of the Constitution and of the people adopting it,”
Holland v
Heavlin
,
As I recognize in the lead opinion, this Court has not previously recognized a right
to bodily integrity. Thus, my focus lies on the language of the Due Process Clause itself.
“The primary objective in interpreting a constitutional provision is to determine the text’s
original meaning to the ratifiers, the people, at the time of ratification [in 1963].”
Wayne
Co v Hathcock
,
The United States Supreme Court has recognized for over a century that “[n]o right
is held more sacred, or is more carefully guarded by the common law, than the right of
every individual to the possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of law.”
Union Pac R
Co v Botsford
,
II. CONCLUSION Plaintiffs have waited for years for this Court to make a final determination as to whether they even have a right to sue for their injuries. For the reasons expressed in this concurrence and the lead opinion, I resoundingly answer “yes.”
Plaintiffs allege that defendants failed to acknowledge their own mistakes and then compounded those mistakes by failing to provide basic solutions for the harms they caused. To add insult to injury, in the context of these legal proceedings, defendants have acted as a roadblock to any equitable resolution. Defendants have fought plaintiffs every step of the way by attempting to foreclose their lawsuit through procedural grounds. Yet the people of Flint have endured, and they now ask for an opportunity to be heard. The judiciary should be the one governmental institution that hears their grievances and affords them the opportunity to at least proceed with their case.
The world continues to turn, and new crises are ever present, but Flint remains much the same as it was shortly after the water crisis began. Many of those who were injured remain irreparably harmed—properties remain damaged, property values remain depressed, and some Flint residents continue to distrust the safety of the water coming from *56 their taps. After a litany of indignities suffered at the hands of their government, the citizens of Flint should not have to wait any longer for the opportunity to prove their allegations.
Richard H. Bernstein *57 S T A T E O F M I C H I G A N SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157335-7 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157340-2 *58 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants. M C C ORMACK , C.J. ( concurring ).
I concur fully with the lead opinion and agree that the plaintiffs have adequately
pled a conscience-shocking violation of their fundamental right to bodily integrity. I write
*59
separately to respond to Justice V IVIANO ’s critique of
Smith v Dep’t of Pub Health
, 428
Mich 540;
Justice V IVIANO believes that
Smith
’s foundations have been eroded by the United
States Supreme Court’s partial retreat from
Bivens v Six Unknown Fed Bureau of Narcotics
Agents
,
Smith was a memorandum opinion, signed by the six participating justices, and Smith did not cite Bivens or refer to it at all. All we know is that at least four justices agreed that monetary damages may be available for state constitutional-tort claims. See Smith , 428 Mich at 545 (stating that “at least four Justices concur in every holding, statement and disposition of this memorandum opinion” but not identifying which justices agreed with which of the seven propositions or why they agreed). Maybe this holding was informed by Bivens , but maybe not.
Second, like
Smith
,
Bivens
established that monetary damages may be available to
remedy a constitutional violation even in the absence of statutory authorization for such a
claim. Although United States Supreme Court Justices Thomas and Gorsuch have
expressed their willingness to overrule
Bivens
, no other justice has expressed any interest
in that path. To the contrary, the United States Supreme Court has reaffirmed
Bivens
as
recently as three years ago. See
Ziglar v Abbasi
,
Of course, there are other reasons to conclude that monetary damages are available
in state constitutional-tort actions. When our sister state courts have so held, they have
typically based their decisions on the common law, the Restatement of Torts, an analogy
to
Bivens
, or a combination of all three. See, e.g.,
Brown v New York
,
But even assuming that Smith was a state Constitution, Bivens -like decision, I do not believe that this Court should feel compelled to abandon it simply because some members of the United States Supreme Court have grown sour on Bivens -style remedies in a different context altogether. There are a number of reasons why. For one, we are separate sovereigns. We decide the meaning of the Michigan Constitution and do not take our cue from any other court, including the highest Court in the land.
And there is more that makes Bivens apples to Smith ’s oranges. For example, the critiques of Bivens are far less weighty here because there are no corresponding federalism concerns. As Justice Harlan explained in his Bivens concurrence, the question in that case was rooted not in the separation of powers, but in federalism: whether the liability of federal *62 officers should depend on “the vagaries of [state] common-law actions,” Bivens , 403 US at 409 (Harlan, J., concurring in the judgment), or one uniform body of federal law. Even the government in Bivens did not argue that the judiciary lacked the power to fashion a remedy. Instead, the government claimed that those remedies should be found only in the state courts, not the federal courts. Id . at 390 (opinion of the Court) (“Respondents do not argue that petitioner should be entirely without remedy for an unconstitutional invasion of his rights by federal agents. In respondents’ view, however, the rights that petitioner asserts—primarily rights of privacy—are creations of state and not of federal law. Accordingly, they argue, petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts.”).
Principles of federalism and comity have continued to animate the Supreme Court’s
Bivens
and 42 USC 1983
[3]
jurisprudence.
[4]
As then Judge Gorsuch observed in
Browder v
Albuquerque
,
Perhaps most importantly, there is no federal analogue for the type of action here,
which diminishes the relevance of the Supreme Court’s
Bivens
jurisprudence. The
plaintiffs allege more than a constitutional violation committed by a single rogue officer
that often serves as the basis for a
Bivens
claim. See
Turkmen v Hasty
,
Nor could this action be brought as a § 1983 action in state or federal court. That
statute only authorizes suits against a
person
, and neither the state nor a state official is
considered a “person” for purposes of a damages suit under § 1983.
Will v Mich Dep’t of
State Police
,
In
Smith
, the Court held that Michiganders can sue the government directly for
violating their Michigan constitutional rights.
Smith
,
Ultimately, this Court has a duty to protect the state constitutional rights of
Michiganders. The judiciary serves as a check on our coequal branches of government and
ensures that their acts are constitutional. See
Marbury v Madison
,
That the judicial power includes the ability to fashion remedies is a principle as old
as our republic. “[W]here federally protected rights have been invaded, it has been the rule
from the beginning that courts will be alert to adjust their remedies so as to grant the
necessary relief.”
Bell v Hood
,
Given this understanding of the judicial power, it is not clear to me why authorizing
damages for a constitutional-tort action would be
exclusively
a function of the Legislature
such that the judiciary is precluded from taking up the task, especially because
constitutional rights most often serve to limit the government’s power. Chief Justice John
Marshall questioned this too: “To what purpose are powers limited, and to what purpose is
that limitation committed to writing, if these limits may, at any time, be passed by those
intended to be restrained?”
Marbury
,
Smith
’s holding that monetary damages are available in the appropriate case is
therefore unremarkable. What good is a constitutional right without a remedy? “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. . . . The government of the United
States has been emphatically termed a government of laws, and not of men. It will certainly
cease to deserve this high appellation, if the laws furnish no remedy for the violation of a
vested legal right.”
Marbury
,
Bridget M. McCormack Megan K. Cavanagh *68 S T A T E O F M I C H I G A N SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157335-7 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157340-2 *69 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants. V IVIANO , J. ( concurring in part and dissenting in part ).
I agree with the lead opinion’s analysis of plaintiffs’ inverse-condemnation claim and remand for further factual development to determine when that claim accrued. But I would reverse the Court of Appeals’ denial of defendants’ motion for summary disposition concerning plaintiffs’ substantive due-process claim for a violation of bodily integrity because I do not believe that substantive due process encompasses a right to be protected from exposure to contaminated water and I do not believe that plaintiffs allege conscience- shocking conduct on the part of defendants. And even if plaintiffs did allege such a *70 substantive due-process claim, I would not infer a damages remedy for such a claim in any event.
I. SUBSTANTIVE DUE PROCESS The Due Process Clause of the Michigan Constitution provides that “[n]o person shall . . . be deprived of life, liberty or property, without due process of law.” [2] Our constitutional provision “is coextensive with its federal counterpart” in the Fourteenth Amendment. [3] We have held that the Due Process Clause offers “two separate types of *71 protections—substantive and procedural[.]” [4] Procedural due process, which is not at issue in the instant case, requires that before a person is deprived of life, liberty, or property, he or she must be given notice and an opportunity to be heard. [5]
“Textually, only procedural due process is guaranteed by the Fourteenth Amendment [and Const 1963, art 1, § 17]; however, under the aegis of substantive due process, individual liberty interests likewise have been protected against ‘ “certain government actions regardless of the fairness of the procedures used to implement them.” ’ ” [6] There are two types of substantive due-process claims—ones that claim an the particular language at issue is identical, it is unnecessary for me to address whether Const 1963, art 1, § 17 offers more protection than its federal counterpart.
[4]
Bonner v Brighton
,
or property by adjudication must be preceded by notice and an opportunity to be heard. To
comport with these procedural safeguards, the opportunity to be heard “must be granted at
a meaningful time and in a meaningful manner.”) (citations omitted). See also
In re Beck
,
Substantive due process has often been criticized because of its lack of textual basis.
See, e.g.,
TXO Prod Corp v Alliance Resources Corp
, 509 US 443, 470-471; 113 S Ct
2711; 125 L Ed 2d 366 (1993) (Scalia, J., concurring) (“I am willing to accept the
proposition that the Due Process Clause of the Fourteenth Amendment, despite its textual
limitation to procedure, incorporates certain substantive guarantees specified in the Bill of
Rights; but I do not accept the proposition that it is the secret repository of all sorts of other,
unenumerated, substantive rights—however fashionable that proposition may have been
(even as to economic rights of the sort involved here) at the time of the
Lochner
-era cases
the plurality relies upon.”);
Albright v Oliver
,
This court has recognized two categories of substantive due process rights:
The first type includes claims asserting denial of a right, privilege, or immunity secured by the Constitution or by federal statute other than procedural claims under “the Fourteenth Amendment simpliciter .” . . .
The other type of claim is directed at official acts which may not occur regardless of the procedural safeguards accompanying them. The test for substantive due process *73 I discuss both types of claims below.
claims of this type is whether the conduct complained of
“shocks the conscience” of the court. Mertik v. Blalock ,983 F.2d 1353 , 1367–68 (6th Cir.1993). The first type of claim exists, for example, when a plaintiff alleges that his right to be free from unreasonable seizures under the Fourth Amendment was violated. See Wilson v. Beebe ,770 F.2d 578 , 585–86 (6th Cir.1985) ( en banc ); see also Braley v. City of Pontiac ,906 F.2d 220 , 225 (6th Cir.1990). The latter type of claim, however, does not “require[] a claim that some specific guarantee of the Constitution apart from the due process clause be violated . . . . This is a substantive due process right akin to the ‘fundamental fairness’ concept of procedural due process.” Wilson ,770 F.2d at 586 .
Compare
Lillard
,
A. THERE IS NO SUBSTANTIVE DUE-PROCESS RIGHT NOT TO BE EXPOSED
TO CONTAMINATED WATER As to the first type of substantive due-process claim, in addition to those rights enumerated in the Constitution, rights have been recognized in “ ‘matters relating to marriage, family, procreation, and the right to bodily integrity.’ ” [9] Importantly, a substantive due-process analysis “ ‘must begin with a careful description of the asserted right,’ for there has ‘always been reluctan[ce] to expand the concept of substantive due process’ given that ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’ ” [10] After formulating a careful description of the right in question, a court must then determine whether that right is deeply rooted in this country’s history. As the United States Supreme Court explained in Washington v Glucksberg : [11]
Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible
decisionmaking” that direct and restrain our exposition of the Due Process Clause. [12]
Importantly, a “careful description” of the right must be sufficiently specific in order to determine whether it is deeply rooted in our nation’s history. [13] Notably, “ ‘[T]he Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’ ” [14]
*76 Without that core textual meaning as a limitation, defining the scope of the
Due Process Clause “has at times been a treacherous field for this Court,” giving “reason for concern lest the only limits to . . . judicial intervention become the predilections of those who happen at the time to be Members of this Court.” Moore v. East Cleveland ,431 U.S. 494 , 502[;97 S Ct 1932 ; 52 L Ed 2d 531] (1977). The need for restraint has been cogently expressed by Justice W HITE :
That the Court has ample precedent for the creation of new constitutional rights should not lead it to repeat the process at will. The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers . . . , the Court should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority. Moore , [431 US] at 544 (dissenting opinion).
In an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the interest denominated as a “liberty” be “fundamental” (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society. As we have put it, the Due Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts , 291 U. S. 97, 105[; 54 S Ct 330; 78 L Ed 674] (1934) (Cardozo, J.). Our cases reflect “continual insistence upon respect for the teachings of history [and] solid recognition of the basic values that underlie our society . . . .” Griswold v. Connecticut , 381 U. S. 479, 501[; 85 S Ct 1678;14 L Ed 2d 510 ] (1965) (Harlan, J., concurring in judgment).
In this case, then, even assuming that the Due Process Clause in our state’s Constitution protects a right to bodily integrity—a conclusion that, until the Court of Appeals decision below, no appellate court in this state had ever reached [15] —plaintiffs must carefully describe a particular right to bodily integrity, and that right must be deeply rooted in the nation’s history and tradition.
So what is the right that plaintiffs assert? In their amended complaint, plaintiffs allege that “[d]efendants deliberately and knowingly breached the constitutionally protected bodily integrity of Plaintiffs by creating and perpetuating the ongoing exposure to contaminated water , with deliberate indifference to the known risks of harm which said exposure would, and did, cause to Plaintiffs.” (Emphasis added.) In other words, the right that plaintiffs allege may carefully be described as a right not to be exposed to contaminated water. [16] With that careful description of the right in mind, we must next determine whether *78 such a right is “ ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ ” [17]
Importantly, I am aware of no case holding that such a right is encompassed in
substantive due process. In fact, there are several cases explicitly holding that there is no
such right to a contaminant-free environment. While considering a challenge to the
addition of fluoride to the water supply, one California court stated, “[T]he right to bodily
integrity is not coextensive with the right to be free from the introduction of an allegedly
contaminated substance in the public drinking water.”
[18]
As Judge McKeague explained in
See also
Hootstein v Amherst-Pelham Regional Sch Comm
, 361 F Supp 3d 94 (D Mass,
2019) (relying on
Guertin
).
Glucksberg
,
Several federal courts have similarly held that there is no right to a contaminant-free
environment.
S F Chapter of A Philip Randolph Institute v US Environmental Protection
Agency
, unpublished opinion of the United States District Court for the Northern District
of California, issued March 28, 2008 (Case No. C 07-04936 CRB), pp 6-7 (rejecting the
plaintiffs’ claim that they had a right to be free from climate-change pollution);
Concerned
Citizens of Nebraska v US Nuclear Regulatory Comm
, 970 F2d 421, 426-427 (CA 8, 1992)
(“[W]e are unable to conclude that a right to an environment free of any non-natural
radiation is so “deeply rooted in this Nation’s history and tradition,” as to render it
fundamental.”);
In re “Agent Orange” Prod Liability Litigation
, 475 F Supp 928, 934
(EDNY, 1979) (“Since there is not yet a constitutional right to a healthful environment,
there is not yet any constitutional right under the fifth, ninth, or fourteenth amendments to
be free of the allegedly toxic chemicals involved in this litigation. Plaintiffs’ constitutional
claims are dismissed for failure to state a claim.”) (citation omitted);
Pinkney v Ohio
Environmental Protection Agency
,
There is no debate to be had on this subject. Because the right to be free from
exposure to contaminated water “is neither implicit in the concept of ordered liberty nor
deeply rooted in this nation’s history and tradition[,] [i]t would be an impermissibly radical
184 (DDC, 1978);
Tanner v Armco Steel Corp
,
in Guertin recognized: “There is, of course, no fundamental right to water service. Moreover, the Constitution does not guarantee a right to live in a contaminant-free, healthy environment.” Id . at 921-922 (opinion of the court) (quotation marks and citation omitted), citing Lake v Southgate , unpublished opinion of the United States District Court for the Eastern District of Michigan, issued February 28, 2017 (Case No. 16-10251), p 4 (collecting cases).
departure from existing tradition, and from the principles that underlie that tradition, to declare that there is such a fundamental right protected by the Due Process Clause.” [21]
Nevertheless, the Court of Appeals majority did not begin its analysis with a careful description of the right that plaintiffs assert. It did refer to a right to be free of “ ʻan egregious, nonconsensual entry into the body which was an exercise of power without any legitimate governmental objective.ʼ ” [22] And the majority then summarized plaintiffs’ allegations as consisting of “a nonconsensual entry of contaminated and toxic water into [plaintiffs’] bodies as a direct result of defendants’ decision to pump water from the Flint *81 River into their homes and defendants’ subsequent affirmative act of physically switching the water source.” [23]
This general description of a right against nonconsensual entry of substances into the body can be found in other cases, such as In re Cincinnati Radiation Litigation . [24] There the defendant physicians experimented on terminal cancer patients by subjecting them to large doses of radiation, all while concealing the nature of the experiment. [25] But the facts in the instant case are very different than those in In re Cincinnati . Plaintiffs do not allege that defendants knowingly and secretly performed dangerous experiments on them. Plaintiffs allege that defendants switched the source of Flint’s drinking water “despite knowledge of a 2011 study commissioned by Flint officials that cautioned against the use of Flint River water as a source of drinking water and despite the absence of any independent state scientific assessment of the suitability of using water drawn from the Flint River as drinking water” and then engaged in a cover-up. [26] Plaintiffs have made serious accusations about the manner in which these decisions were made and the grave consequences that followed for plaintiffs and other Flint residents. I do not take these allegations lightly. However, I think it is clear that the facts alleged in this case are distinct *82 from those in In re Cincinnati . [27] As Judge McKeague noted in his partial concurrence in Guertin :
These cases [like In re Cincinnati ] delineate the contours of the right to bodily integrity in terms of intrusive searches or forced medication. . . . Even the few district court or sister circuit cases cited by the majority do not clarify the contours of plaintiffs’ alleged right. All except one of those cases deal with medical professionals performing government-sponsored invasive procedures or harmful experiments on unsuspecting patients. The last one deals with police officers who coerced individuals to ingest marijuana while those individuals were under the officer’s control. So those cases further elaborate the ways in which medical or law enforcement personnel may interfere with an individual’s right to bodily integrity. But they say nothing about how non-custodial policy or regulatory decisions or statements affecting the quality of an environmental resource may do so. In short, neither our Nation’s history and traditions nor governing bodily integrity jurisprudence suggests that the conduct alleged here is comparable to a “forcible physical intrusion[] of the body by the government.” Planned Parenthood Sw. Ohio Region , 696 F.3d [490, 506 (CA 6, 2012)]. “The mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores ,507 U.S. 292 , 303,113 S.Ct. 1439 , 123 L.Ed.2d 1 (1993).” [28]
I believe the Court of Appeals erred by describing the right so generally that it encompasses cases with very different facts.
A right to be free from contaminated public water is clearly not “ ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty . . . .’ ” [29] Like Justice Scalia, I “believe[] that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them.” [30] There is simply no historical support for a right to receive public water free from contaminants. [31] It is “judicial usurpation,” as Justice Scalia called it, to use substantive due process to add the rights we prefer to those explicitly set forth in the Constitution or protected by longstanding history and tradition. [32] *84 By neglecting both to formulate a careful description of the right that plaintiffs assert and to take notice of the readily apparent fact that there have been no historical or legal protections for it, this Court, by leaving in place the Court of Appeals majority opinion, has discarded the tether that “sought to limit the damage” of our Court’s “ ‘right-making’ power.”
as my views concerning the ‘concept of existence, of meaning, of the universe, and of the
mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that
bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution
says absolutely nothing about it, and (2) the longstanding traditions of American society
have permitted it to be legally proscribed.”) (citation omitted);
Cruzan
, 497 US at 293
(Scalia, J., concurring) (“I would have preferred that we announce, clearly and promptly,
that the federal courts have no business in this field; that American law has always accorded
the State the power to prevent, by force if necessary, suicide—including suicide by refusing
to take appropriate measures necessary to preserve one’s life; that the point at which life
becomes ‘worthless,’ and the point at which the means necessary to preserve it become
‘extraordinary’ or ‘inappropriate,’ are neither set forth in the Constitution nor known to the
nine Justices of this Court any better than they are known to nine people picked at random
from the Kansas City telephone directory; and hence, that even when it
is
demonstrated by
clear and convincing evidence that a patient no longer wishes certain measures to be taken
to preserve his or her life, it is up to the citizens of Missouri to decide, through their elected
representatives, whether that wish will be honored. It is quite impossible (because the
Constitution says nothing about the matter) that those citizens will decide upon a line less
lawful than the one we would choose; and it is unlikely (because we know no more about
‘life and death’ than they do) that they will decide upon a line less reasonable.”);
Obergefell
,
B. DEFENDANTS’ ACTIONS DO NOT SHOCK THE CONSCIENCE Alternatively, if a plaintiff does not claim a violation of a right that is deeply rooted in our nation’s history and tradition, there may still be a due-process violation if defendants’ conduct shocked the conscience. The Court of Appeals correctly recounted the requirement that a plaintiff allege conscience-shocking behavior in order to plead a violation of substantive due process:
Violation of the right to bodily integrity involves “an egregious, nonconsensual entry into the body which was an exercise of power without any legitimate governmental objective.” Rogers v Little Rock, Arkansas , 152 F3d 790, 797 (CA 8, 1998), citing Sacramento Co v Lewis ,523 US 833 , 847 n 8;118 S Ct 1708 ;140 L Ed 2d 1043 (1998). . . . [T]o survive dismissal, the alleged “violation of the right to bodily integrity must be so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Villanueva v City of Scottsbluff ,779 F3d 507 , 513 (CA 8, 2015) (quotation marks and citation omitted); see also Mettler Walloon, LLC v Melrose Twp , 281 Mich App 184, 198; 761 NW2d 293 (2008) (explaining that in the context of individual governmental actions or actors, to establish a substantive due-process violation, “the governmental conduct must be so arbitrary and capricious as to shock the conscience”).
“Conduct that is merely negligent does not shock the conscience, but
‘conduct intended to injure in some way unjustifiable by any government
interest is the sort of official action most likely to rise to the conscience-
shocking level.’ ”
Votta v Castellani
, 600 F Appx 16, 18 (CA 2, 2015),
quoting
Sacramento Co
,
Plaintiffs allege that defendants switched Flint’s water source despite a 2011 study cautioning against the use of water from the Flint River and warning that the Flint Water Treatment Plant needed upgrades. [36] Following that study, there was continuing debate about whether the water source should be switched, with some additional studies indicating it should not, but with other individuals arguing that those studies were not reliable. After switching water sources, certain experts continued to warn about the dangers associated with the water from the Flint River. Almost immediately, plaintiffs and other Flint residents began to complain about the quality of the water. As time went on, there were more and more indications that the water was not safe, including various large public and private entities deciding to switch water sources, an outbreak of Legionnaires’ disease, and medical testing indicating that children had increased levels of lead in their blood. While constraints presented by the institutional setting, and the need to give latitude to administrators who have to make difficult trade-offs as to risks and resources”).
[36] ROWE Professional Services Company & Lockwood, Andrews & Newnam, Inc, Analysis of the Flint River as a Permanent Water Supply for the City of Flint (July 2011), available at <https://www.greatlakeslaw.org/Flint/LAN_2011_Report_with_Appendices.pdf> (accessed July 13, 2020) [https://perma.cc/KJ8F-PNU8]. This study did conclude that there would “need to be some modifications to existing facilities, operating agreements, and permits” if the Flint River was to be used for the water supply. Id . at 12. It then suggested various modifications that would be needed to meet expected future demand but stated that without those modifications the river could supply approximately / of the expected daily demand. Id . In another section, the study stated: “Preliminary analysis indicates that water from the river can be treated to meet current regulations; however, additional treatment will be required than for [sic] Lake Huron water. This results in higher operating costs than the alternative of a new Lake Huron supply.” Id . at 7. But I see nothing in this particular study that clearly indicates that using the Flint River as a water source would risk a public health crisis.
this evidence mounted, defendants’ representatives continued to assure the public that the water was safe. Finally, defendants opted to change back to the previous water source.
I am not convinced that the studies and expert opinions plaintiffs cite in their complaint are sufficient to show that defendants’ behavior was deliberately indifferent. In any complex decision, there are many factors and alternatives that must be considered. This is especially true for major decisions like this one—each option will likely present various risks and costs that must be weighed against the potential benefits. Weighing these factors is a difficult task. Though the evidence plaintiffs cite, viewed in isolation and with the benefit of hindsight, certainly provides some indications of the risks associated with switching Flint’s water source, plaintiffs themselves also recount that former Governor Snyder testified that he was repeatedly assured by the Department of Environmental Quality that the water was safe. Plaintiffs have not alleged that there was uniform agreement or a broad consensus that using the Flint River as a water source would cause a serious public health crisis. While there were certainly more indications of serious water- *89 quality problems as time went on, the initial studies and expert analyses were contradictory concerning the nature and extent of the water-quality problems and whether the problems could be corrected. [38] Defendants continued to gather information regarding the quality of the water and took that information into account when determining their course of action. [39] Defendants then took steps to reduce the health risks, allocated funds to improve Flint’s water quality, appointed a Flint Water Advisory Task Force, and ultimately reconnected to the Detroit water system.
While hindsight shows that defendants’ decision to switch Flint’s water source has had tragic consequences, I do not believe that plaintiffs have shown that defendants were deliberately indifferent in their decision to supply Flint residents with an alternative water source. [40] While defendants may have failed to perceive “a significant risk that [they] should have perceived,” that does not constitute deliberate indifference. [41] Consequently, while it is clear that mistakes were made, I do not believe that plaintiffs have alleged actions on the part of defendants that surmount the high bar of conscience-shocking behavior. [42]
In sum, even if there were a substantive due-process right to bodily integrity, I do not believe that plaintiffs have alleged the facts necessary to show either that defendants interfered with a deeply rooted right or that defendants’ conduct was conscience- shocking. [43] I would reverse the Court of Appeals and grant defendants’ motion for summary disposition regarding plaintiffs’ substantive due-process claim alleging a violation of their right to bodily integrity.
II. THE AVAILABILITY OF A DAMAGES REMEDY UNDER SMITH v DEPARTMENT OF PUBLIC HEALTH [44] Even if substantive due process did encompass a right not to be exposed to contaminated water, I would conclude that there is no damages remedy for such a constitutional violation. There are two reasons why I would reach this conclusion. First, even if Smith v Dep’t of Pub Health applies, the factors Justice B OYLE lists in her partial concurrence weigh against creation of a claim for damages. Second, I have doubts about whether Smith was correctly decided and, in any event, whether it should be extended.
A. THERE IS NO DAMAGES REMEDY UNDER SMITH As the lead opinion recognizes, in Smith v Dep’t of Pub Health , the 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.” [45] Smith consolidated two cases, Smith v Michigan [46] and Will v Dep’t of Civil Serv . [47] In Smith , the plaintiff was living at a state orphanage when the superintendent of his school, mistakenly believing that the *92 plaintiff had a mental disability, had him transferred to an institution for people with mental disabilities. [48] The plaintiff lived there for 38 years. He then filed a complaint claiming, in relevant part, that the Department of Health and Human Services had violated his due- process and equal-protection rights under the state Constitution by improperly committing him to the institution. [49] In Will , the plaintiff was a state employee who had sought to be promoted to a data systems analyst. He was rejected for the position when the defendant, the Department of State Police, learned of his brother’s political activities. [50] The plaintiff sued, claiming that the defendant’s refusal to promote him based on his brother’s political activities violated his due-process rights. [51]
Smith was a fractured decision with four different opinions. [52] Justice B OYLE put forward the following factors to determine whether courts should infer a damages remedy: *93 (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.
These factors weigh against inferring a damages remedy in this case. First, as explained above, I do not believe that there is a constitutional violation. However, even if there were a clear constitutional violation, the other factors weigh against the creation of a damages remedy. Second, as even the Court of Appeals majority noted, the degree of specificity in the constitutional protection weighs against an inferred damages remedy. As stated, plaintiffs bring a substantive due-process claim under Const 1963, art 1, § 17, our Constitution’s parallel provision to the Fourteenth Amendment. But both Justice B RICKLEY and Justice B OYLE noted that Fourteenth Amendment violations are particularly unsuitable for courts to infer a cause of action for damages. Justice B RICKLEY counseled statement, but he agreed with Justice B OYLE ’s remand to the Court of Claims. Id . at 654- 655 (A RCHER , J., dissenting). Justice L EVIN also agreed with Justice A RCHER and concurred in the remand. Id . at 652 (L EVIN , J., concurring). Justice G RIFFIN did not participate. See id . at 648-652 (B OYLE , J., concurring in part and dissenting in part). I point out that
the Court of Appeals listed the final factors as “ ʻvarious other factors’ militating for or
against a judicially inferred damage remedy.”
Mays
,
against creating a damages remedy for such a violation, remarking that “the Supreme Court has never extended the reasoning of Bivens [54] to violations of the Fourteenth Amendment, and, as Justice Harlan noted in his concurrence in Bivens , the appropriateness of money damages for other types of constitutionally protected interests might ‘well vary with the nature of the personal interest asserted.’ ” [55] Justice B OYLE also noted: “Other concerns, such as the degree of specificity of the constitutional protection, should also be considered. For example, there was no question in Bivens . . . that the defendants had violated the warrant requirements of the Fourth Amendment. These search and seizure protections are, however, relatively clear-cut in comparison to the Due Process and Equal Protection Clauses.” [56]
Third, nothing in the “text, history, and previous interpretations” indicates that there should be a damages remedy here. [57] If anything, that previous interpretations have noted *95 there are few “ ‘guideposts for responsible decisionmaking’ ” in the realm of substantive due process indicates that courts should not infer a damages remedy. [58]
Fourth, I agree with the lead opinion that it is uncertain whether plaintiffs have alternative remedies at this point, and therefore, this factor is neutral. As Justice B ERNSTEIN points out, the state defendants generally have both statutory immunity and Eleventh Amendment immunity. Though plaintiffs seek injunctive relief as well as compensatory and punitive damages against several of the named defendants in a related federal-court action, it is uncertain whether those remedies are available. [59] Moreover, the that we are without proper authority to recognize a cause of action for money damages or other compensatory relief for past violations of Const 1963, art 1, § 2.”). There is no such language in Const 1963, art 1, § 17.
Regarding history, our state’s Constitution has guaranteed due process since the
1850 Constitution. Const 1908, art 2, § 16 (“No person shall be compelled in any criminal
case to be witness against himself, nor be deprived of life, liberty or property, without due
process of law.”); Const 1850, art 6, § 32 (“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.”). When considering whether to add language guaranteeing that no
“ ‘person be held to answer for a criminal offence unless on the presentment or indictment
of a grand jury,’ ” Mr. S. Clark referred to the Due Process Clause, noting that the language
came from the Magna Carta.
Report of the Proceedings and Debates in the Convention to
Revise the Constitution of the State of Michigan, 1850
(Lansing: R W Ingals, 1850),
pp 192-195. But this, of course, does not favor creating or not creating a damages remedy.
Sierb
,
Finally, I see no “various other factors,” outside of those mentioned above, that
militate against an inferred cause of action for damages.
[61]
In sum, the first, second, and
third factors weigh against inferring a cause of action for damages, and the other factors
(“Some judges of this court have even noted that, because the facts at this stage are yet
undeveloped, ‘it is generally inappropriate for a district court to grant a 12(b)(6) motion to
dismiss on the basis of qualified immunity. Although an officer’s entitlement to qualified
immunity is a threshold question to be resolved at the earliest possible point, that point is
usually summary judgment and not dismissal under Rule 12.’ ”), quoting
Wesley v
Campbell
,
protections are not “ ‘wholly congruent’ ” with the federal constitutional protections) (citation omitted). The Court of Appeals noted “ ‘the degree of outrageousness of the state actors’ conduct
as alleged by plaintiffs . . . .’ ”
Mays
,
are, at best, neutral. Considering all the above factors, I believe it is clear that courts should not infer a damages remedy for plaintiffs’ claim of a violation of their right to bodily integrity under the Due Process Clause.
B. THE CONTINUING VIABILITY OF SMITH While I would not recognize a claim for damages here for the reasons stated above, I would also be hesitant to do so in future cases, because I have serious doubts regarding whether Smith was correctly decided. [62] As previously explained, there are four opinions in Smith . Two of the opinions, Justice B RICKLEY ’s and Justice B OYLE ’s, explicitly rely on Bivens . [63] Four Justices—Justice B OYLE , Justice R ILEY , Justice L EVIN , and Justice A RCHER —voted to remand Smith v Michigan [64] to the Court of Claims for that court to determine whether there would be a damages remedy for the constitutional violation. [65]
In
Bivens
, the United States Supreme Court considered “whether violation of [the
Fourth Amendment] by a federal agent acting under color of his authority gives rise to a
cause of action for damages consequent upon his unconstitutional conduct.”
[66]
The Court
held that it did.
[67]
The petitioner in
Bivens
complained, in relevant part, that federal officers
had violated the Fourth Amendment by searching his apartment without a warrant.
[68]
The
respondents argued that the petitioner could only obtain monetary damages under state tort
law. But the Court rejected this argument. First, the Court noted that the Fourth
Amendment did not preclude only conduct that would be illegal under state law if done by
private persons.
[69]
Second, “[t]he interests protected by state laws . . . , and those protected
by the Fourth Amendment’s guarantee against unreasonable searches and seizures, may be
by Justice R ILEY , discussed
Bivens
and its progeny at length,
Smith
,
[66]
Bivens
,
[67] Id . Id . Id . at 392.
inconsistent or even hostile.” [70] Third, damages are considered an ordinary remedy, so allowing damages for a Fourth Amendment violation was “hardly . . . a surprising proposition.” [71] In sum, the Court concluded that the petitioner had stated a cause of action and that he was “entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment.” [72]
But Bivens was criticized from the outset as posing separation-of-powers concerns. [73] Justice Rehnquist strongly voiced these concerns regarding Bivens in his dissent in Carlson v Green :
Although ordinarily this Court should exercise judicial restraint in attempting to attain a wise accommodation between liberty and order under the Constitution, to dispose of this case as if Bivens were rightly decided would in the words of Mr. Justice Frankfurter be to start with an “unreality.” Bivens is a decision “by a closely divided court, unsupported by the confirmation of time,” and, as a result of its weak precedential and doctrinal foundation, it cannot be viewed as a check on “the living process of striking a wise balance between liberty and order as new cases come here for adjudication.” * * *
In my view, it is “an exercise of power that the Constitution does not give us” for this Court to infer a private civil damages remedy from the Eighth Amendment or any other constitutional provision. The creation of such remedies is a task that is more appropriately viewed as falling within the legislative sphere of authority.
* * * result—by recommending a solution to the Congress as the branch of government in which the Constitution has vested the legislative power. Legislation is the business of the Congress, and it has the facilities and competence for that task—as we do not.”); id . at 427- 428 (Black, J., dissenting) (“There can be no doubt that Congress could create a federal cause of action for damages for an unreasonable search in violation of the Fourth Amendment. Although Congress has created such a federal cause of action against state officials acting under color of state law [in 42 USC 1983], it has never created such a cause of action against federal officials. If it wanted to do so, Congress could, of course, create a remedy against federal officials who violate the Fourth Amendment in the performance of their duties. But the point of this case and the fatal weakness in the Court’s judgment is that neither Congress nor the State of New York has enacted legislation creating such a right of action. For us to do so is, in my judgment, an exercise of power that the Constitution does not give us.”); id . at 430 (Blackmun, J., dissenting) (referring to the majority opinion as “judicial legislation”). See also Chemerinsky, Federal Jurisdiction (7th ed), § 9.1.2, p 652 (discussing whether Bivens offends separation-of-powers principles). See generally Jellum, “Which Is to Be Master,” the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers , 56 UCLA L Rev 837, 865 (2009) (“Thus, legislative acts—enacting, amending, and repealing statutes—are those acts that alter the rights, duties, or responsibilities of those outside the legislature. When a branch other than Congress . . . legislates, that branch violates formalist separation of powers.”).
. . . [C]ongressional authority here may all too easily be undermined when the judiciary, under the guise of exercising its authority to fashion appropriate relief, creates expansive damages remedies that have not been authorized by Congress. Just as there are some tasks that Congress may not impose on an Art. III court, there are others that an Art. III court may not simply seize for itself without congressional authorization. [74] More recently, the United States Supreme Court has recognized these separation- of-powers concerns while noting that it is generally up to Congress to create a cause of action for a constitutional violation.
When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separation-of-powers principles are or should be central to the analysis. The question is “who should decide” whether to provide for a damages remedy, Congress or the courts?
The answer most often will be Congress. When an issue “ ‘involves a host of considerations that must be weighed and appraised,’ ” it should be committed to “ ‘those who write the laws’ ” rather than “ ‘those who interpret them.’ ” [75]
Moreover, when Bivens was decided, the United States Supreme Court was willing to create causes of action in the statutory context. Bivens went further by allowing courts to create causes of action in the constitutional context. But in Alexander v Sandoval , [76] the Court definitively signaled that it would no longer create such causes of action in the *102 statutory context, saying, “[P]rivate rights of action to enforce federal law must be created by Congress.” [77] Justice Scalia, joined by Justice Thomas, explained the implications of this new refusal to create statutory causes of action for Bivens :
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. As the Court points out, we have abandoned that power to invent “implications” in the statutory field. There is even greater reason to abandon it in the constitutional field, since an “implication” imagined in the Constitution can presumably not even be repudiated by Congress. [78]
Perhaps because of its shaky grounding, the United States Supreme Court has only recognized a Bivens -style remedy in two cases— Davis v Passman [79] and Carlson . [80] The Court recently voiced its doubts regarding Bivens in Hernandez v Mesa , [81] stating as follows:
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 . [82]
Relatedly, some justices have called for Bivens not to be extended in future cases. For example, Justice Scalia stated that he “would limit Bivens and its two follow-on cases ([ Davis ] and [ Carlson ]) to the precise circumstances that they involved.” [83] Justice Thomas, joined by Justice Gorsuch, has gone even further and called for Bivens to be overturned:
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.
Stare decisis
provides no
“veneer of respectability to our continued application of [these]
demonstrably incorrect precedents.” To ensure that we are not
“perpetuat[ing] a usurpation of the legislative power,” we should reevaluate
our continued recognition of even a limited form of the
Bivens
doctrine.
[84]
I agree with the persistent criticism of
Bivens
. In light of the United States Supreme
Court’s rejection of implied causes of action in the statutory context, it makes little sense
to continue implying them in the constitutional context. Doing so raises serious separation-
Ashcroft v Iqbal
,
of-powers concerns. Supporters of Bivens argue that its remedy is constitutionally required “in the sense that no other remedial scheme could possibly prevent the substantive constitutional requirements from becoming a ‘mere form of words . . . .’ ” [85] However, I am skeptical that such a 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. [86] This power encompasses the power to create causes of action. [87] 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. [88]
The critiques of
Bivens
apply equally to
Smith
. By holding, as
Bivens
did, that courts
may imply a cause of action for damages from violation of a constitutional provision,
Smith
poses the same separation-of-powers concerns that
Bivens
does. The United States
Supreme Court’s abandonment of implied causes of action in the statutory context has cast
doubt on
Bivens
, which, in turn, undermines our reliance on that case in
Smith
. Perhaps
reason for latitudinarian constructions . . . .’ ”), quoting
Oakley v Aspinwall
,
In addition to the separation-of-powers concerns, I believe that there are practical problems with charging courts with deciding when to extend Bivens as well. As Justice Rehnquist explained:
Because the judgments that must be made here involve many “competing policies, goals, and priorities” that are not well suited for evaluation by the Judicial Branch, in my view “[t]he task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the legislatures of the States.” [ Carlson , 446 US at 36 (Rehnquist, J., dissenting) (citation omitted).] Like the United States Supreme Court, our Court has declined in recent decades to imply
statutory causes of action. In
B F Farnell Co v Monahan
,
However, the Court later disavowed
Pompey
’s two qualifications to the general rule
that when a statute creates a new duty or a new right, the statutory remedy is exclusive.
Lash v Traverse City
, 479 Mich 180, 192 n 19; 735 NW2d 628 (2007) (“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.”). Finally, though
Lash
,
id
. at 192-193, did cite the test from
Gardner
,
“It is well settled that when a statute provides a remedy, a court should enforce the legislative remedy rather than one the court prefers.” To determine whether a plaintiff may bring a cause of action for a specific remedy, this Court “must determine whether [the Legislature] intended to create such a cause of action.” “ ‘ “Where a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.” ’ ” Accordingly, this Court has previously declined to establish a remedy that the Legislature has not provided. [ Id . at 528-529, quoting Roberts v Mecosta Co Gen Hosp ,466 Mich 57 , 66 n 5; 642 NW2d 663 (2002); Office Planning Group ,472 Mich at 496 ; McClements v Ford Motor Co , 473 Mich 373, 382; 702 NW2d 166 (2005), quoting Monroe Beverage Co, Inc v Stroh Brewery Co , 454 Mich 41, 45; 559 NW2d 297 (1997), in turn quoting Lafayette Transfer & Storage Co v Pub Utilities Comm ,287 Mich 488 , 491;283 NW 659 (1939).]
taking our cue from the United States Supreme Court,
[90]
our Court has never extended
Smith
, and the Court of Appeals has only done so in one other unpublished case.
[91]
See also
Mich Ass’n of Home Builders v City of Troy
,
now looks askance at Bivens should not lead us to question Smith because “we are separate sovereigns. We decide the meaning of the Michigan Constitution and do not take our cue from any other court, including the highest Court in the land.” Of course, I agree that we are separate sovereigns and that we alone are tasked with interpreting our Constitution. However, it would hardly be a mark of our independence to continue to follow Bivens , which, although it has been cabined, remains the governing federal precedent. In Jo-Dan, Ltd v Detroit Bd of Ed , unpublished per curiam opinion of the Court of
Appeals, issued July 14, 2000 (Docket No. 201406), p 16, the Court of Appeals held, “If the finder of fact in the trial court determines that a plaintiff sustained his, her, or its burden of proving that the defendant violated the fair and just treatment clause, the full panoply of remedies are available. Those remedies include, but are not limited to, monetary damages when ‘appropriate’ according to Smith . . . .” But there, the Detroit Board of Education did not argue that monetary damages were inappropriate. Id . at 16 n 13. And, of course, the decision is unpublished, and therefore it is not precedentially binding. MCR 7.215(C)(1).
The Court of Appeals has repeatedly noted
Smith
’s holding that there may be an
implied cause of action for damages for state constitutional violations. In most cases,
findings that there was no constitutional violation, or that the violation did not occur as a
result of a custom or policy, have precluded the Court of Appeals from recognizing such a
cause of action. See, e.g.,
Champion’s Auto Ferry, Inc v Pub Serv Comm
, 231 Mich App
699, 717;
For these reasons, I believe that like Bivens , Smith ’s holding that there may be an implied claim for damages arising from a state constitutional violation raises serious separation-of-powers concerns. Additionally, given the United States Supreme Court’s recent refusal to imply causes of action in the statutory context, Bivens ’s holding that such causes of action may be implied in the constitutional context rests on shaky ground. Consequently, and particularly in light of our Court’s similar trend, so does Smith ’s. As a result, I question whether Smith was correctly decided on this point, and I would be willing to reconsider Smith in an appropriate future case. At a minimum, I believe that the Court should carefully weigh these points before extending Smith to any further constitutional violations.
the Court of Appeals also relied on
Bivens
in
Kewin v Melvindale Northern Allen Park Pub
Sch Bd of Ed
,
Other states remain split on whether to recognize a Bivens -style remedy for state constitutional violations. See 74 Am Jur 2d, Torts (May 2020 update), § 44 (recounting that some states allow an implied cause of action for unconstitutional searches, while others do not). However, in recent years, state courts have recognized fewer Bivens -style remedies. 75 ALR5th 619 lists 25 cases in which an implied cause of action was recognized under an analogy to Bivens and 61 cases in which the cause of action was not recognized. Every case decided after 2000 declined to recognize a Bivens -style remedy. To be clear, limiting Smith to the due-process and equal-protection claims at issue in that case would mean declining to recognize a claim for monetary damages under Const 1963, art 1, § 11, our state Constitution’s parallel provision to the Fourth Amendment, even though that would be similar to the type of claim recognized in Bivens itself.
III. CONCLUSION I would reverse the Court of Appeals’ ruling on plaintiffs’ substantive due-process claim for a violation of bodily integrity and would instead grant summary disposition in favor of defendants. The right that plaintiffs claim—a right not to be exposed to contaminated water—is not deeply rooted in our nation’s history and tradition, and plaintiffs have not alleged conduct on behalf of defendants that shocks the conscience. Even if plaintiffs had alleged a substantive due-process claim for a violation of bodily integrity, under Smith there would be no damages remedy. Moreover, I have serious doubts as to whether Smith was correct in holding that “[a] claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases.” For this reason, I would be willing to reconsider Smith in an appropriate future case. At a minimum, I believe the Court should carefully weigh the above points before extending Smith to any further constitutional violations.
David F. Viviano
S T A T E O F M I C H I G A N SUPREME COURT
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157335-7 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellants, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellees.
MELISSA MAYS, MICHAEL ADAM
MAYS, JACQUELINE PEMBERTON,
KEITH JOHN PEMBERTON, ELNORA
CARTHAN, RHONDA KELSO, and ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees, v Nos. 157340-2 *112 GOVERNOR OF MICHIGAN, STATE OF
MICHIGAN, DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants-Appellees, and
DARNELL EARLEY and JERRY
AMBROSE,
Defendants-Appellants. M ARKMAN , J. ( dissenting ).
In response to the Flint water crisis, plaintiffs filed this putative class-action lawsuit
against former Governor Rick Snyder, the state of Michigan, the Michigan Department of
Environmental Quality (MDEQ), the Michigan Department of Health and Human Services
and former Flint emergency managers Darnell Earley and Jerry Ambrose. The complaint
alleged a violation of Const 1963, art 1, § 17 (substantive due-process right to bodily
integrity) and a violation of Const 1963, art 10, § 2 (inverse condemnation). The state
defendants and the former emergency managers separately moved for summary
disposition. The Court of Claims denied defendants’ motions for summary disposition on
those two claims, and in a published and split decision, the Court of Appeals affirmed.
Mays v Governor
, 323 Mich App 1; 916 NW2d 227 (2018). This Court subsequently
granted leave to appeal,
Mays v Governor
,
2 *113 with regard to plaintiffs’ violation-of-bodily-integrity claim. Because I conclude that plaintiffs failed to comply with MCL 600.6431(3), the notice provision of the Court of Claims Act, MCL 600.6401 et seq ., I would reverse the Court of Appeals and remand to the Court of Claims for entry of an order disposing of all of plaintiffs’ claims and dismissing the case.
I. ANALYSIS A. LEGAL BACKGROUND MCL 600.6452 provides, in pertinent part:
(1) Every claim against the state, cognizable by the court of claims, shall be forever barred unless the claim is filed with the clerk of the court or suit instituted thereon in federal court as authorized in section 6440, within 3 years after the claim first accrues.
(2) Except as modified by this section, the provisions of [Revised Judicature Act (RJA)] chapter 58, relative to the limitation of actions, shall also be applicable to the limitation prescribed in this section.
MCL 600.6431 provides, in pertinent part:
(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such
claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.
* * * (3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.
And MCL 600.5855 of the RJA, MCL 600.101 et seq ., provides:
If a person who is or may be liable for any claim fraudulently conceals
the existence of the claim or the identity of any person who is liable for the
claim from the knowledge of the person entitled to sue on the claim, the
action may be commenced at any time within 2 years after the person who is
entitled to bring the action discovers, or should have discovered, the
existence of the claim or the identity of the person who is liable for the claim,
although the action would otherwise be barred by the period of limitations.
Furthermore, MCL 600.5827 provides, in pertinent part, that “the claim accrues at
the time the wrong upon which the claim is based was done regardless of the time when
damage results.” “The wrong is done when the plaintiff is harmed rather than when the
defendant acted.”
Boyle v Gen Motors Corp
, 468 Mich 226, 231 n 5; 661 NW2d 557
(2003). In other words, “the ‘wrong’ in MCL 600.5827 is the date on which the defendant’s
breach harmed the plaintiff, as opposed to the date on which defendant breached his duty.”
Frank v Linkner
,
4
*115
In
Trentadue
,
[I]f courts are free to cast aside a plain statute in the name of equity, even in
such a tragic case as this, then immeasurable damage will be caused to the
separation of powers mandated by our Constitution. Statutes lose their
meaning if an aggrieved party need only convince a willing judge to rewrite
the statute under the name of equity. Significantly, such unrestrained use of
equity also undermines consistency and predictability for plaintiffs and
defendants alike. [
Id
. at 406-407 (quotation marks and citations omitted).]
In
Rowland v Washtenaw Co Rd Comm
,
Similarly, in
McCahan v Brennan
,
5 *116 interpreted and enforced as plainly written and that no judicially created saving construction is permitted to avoid a clear statutory mandate.” More specifically, we held that “when the Legislature conditions the ability to pursue a claim against the state on a plaintiff’s having filed specific statutory notice, the courts may not engraft an ‘actual prejudice’ component onto the statute as a precondition to enforcing the legislative prohibition.” Id . at 732-733. We further held that
MCL 600.6431(1) details the notice requirements that must be met in order to pursue a claim against the state, including a general deadline of one year after accrual of the claim. MCL 600.6431(3) then modifies only the deadline requirement for a specific class of claims—those involving personal injury or property damage—replacing the one-year deadline with a six-month deadline. Thus, subsections (1) and (3) together provide that in all actions for personal injuries, “[n]o claim may be maintained against the state” unless the claimant files with the Clerk of the Court of Claims the required notice of intent to file a claim or the claim itself within six months. [ Id . at 744-745.] That is, “the only substantive change effectuated in subsection (3) is a reduction in the timing requirement for specifically designated cases.” Id . at 741.
In
Bauserman v Unemployment Ins Agency
,
In
Rusha v Dep’t of Corrections
,
“accrual,” the outcome would not be any different.
Id
. “Under the common law, a claim
generally accrues ‘when all of the elements of the cause of action have occurred and can
be alleged in a proper complaint.’ ”
Id
., quoting
Connelly v Paul Ruddy’s Equip Repair &
Serv Co
,
7 *118 B. TIMELINESS Plaintiffs here failed to file a notice of intention to file a claim. They filed their complaint on January 21, 2016, and thus the event giving rise to the cause of action must have happened on or after July 21, 2015, in order for plaintiffs’ action to have been filed in a timely manner. Accordingly, if the event giving rise to the cause of action was the switching of the water supply on April 25, 2014, plaintiffs’ action is untimely.
The Court of Appeals held that “genuine issues of material fact still exist regarding
whether plaintiffs satisfied the statutory notice requirements of MCL 600.6431.”
Mays
,
1. ACCRUAL In an action against the state for property damage or personal injuries, the “claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.” MCL 600.6431(3). This Court recently held that “there is no meaningful distinction between ‘the happening of the event giving rise to [a] cause of action’ seeking monetary relief under MCL 600.6431(3) and when such a claim accrues under MCL
8
*119
600.5827.”
Bauserman
,
Accordingly, “we are called upon to ‘determine the date on which plaintiffs first
incurred the harms they assert’ by looking to the ‘actionable harms’ alleged in plaintiffs’
complaint.”
Bauserman
,
Plaintiffs “from April 25, 2014 to the present, have experienced and will continue to experience serious personal injury and property damage caused by
Defendants’ deliberately indifferent decision to expose them to the extreme toxicity of water pumped from the Flint River into their homes, schools, hospitals, correctional facilities, workplaces and public places.” Defendants “deprived Plaintiffs of life, liberty and property without due process of law when they knowingly took from Plaintiffs safe drinking water and replaced it with what they knew to be a highly toxic alternative solely for fiscal purposes.”
Plaintiffs “since April 25, 2014, were and continue to be exposed to highly dangerous conditions created, caused and knowingly prolonged by Defendants’ deliberately indifferent and shocking decision to replace safe drinking water supplied by the City of Detroit’s water system with extremely toxic water pumped from the Flint River[.]”
“Within days after the switch, Defendant State, through its Defendant agencies, departments and/or officials, began receiving complaints from water users, including Plaintiffs and/or Plaintiff Class members, that the water was cloudy and foul in appearance, taste and odor.”
“By August, 2014, Flint water tested positive for E. coli. and several ‘boil water’ advisories were issued by the City of Flint through September, 2014.” “During the next eight (8) months, Flint water users, including Plaintiffs and/or Plaintiff Class members, expressed their concerns about water quality in multiple ways, including letters, emails and telephone calls to Flint and MDEQ officials, the media and through well publicized demonstrations on the streets of Flint.”
“On January 20, 2015, citizen protests mounted fueled in part by encouragement from environmental activist Erin Brockovich and her associate, water expert Bob Bowcock.”
“On February 17, 2015, Flint water users staged public demonstrations demanding that Flint re-connect with Detroit.”
“This action is brought by the named Plaintiffs on behalf of individuals who from April 25, 2014 to present were exposed to toxic Flint water and experienced an injury to their person and/or property and/or who in the future will be so injured.”
Plaintiffs’ amended complaint alleges the following: *121 “This constitutional tort class action is pursued on behalf of Flint water users and property owners from April 25, 2014 to the present, which include but are not limited to, tens of thousands of individuals and businesses, who have experienced and will continue to experience serious personal injury and property damage caused by Defendants’ deliberately indifferent decision to expose them to the extreme toxicity of water pumped from the Flint River into their homes, schools, hospitals, businesses, correctional facilities, workplaces and public places . . . .”
Plaintiffs “since April 25, 2014, were and continue to be injured in person and property because they were exposed to highly dangerous conditions created, caused and knowingly prolonged by Defendants’ conduct . . . .” “In June 2014, citizen complaints about contaminated water continued without the State doing anything to address these complaints. Many Flint water users reported that the water was making them ill.”
“The Governor’s office received citizen complaints and was well aware of numerous press stories about water quality problems as early as May 2014 and continuing throughout 2015.”
“On February 17, 2015, Flint water users staged public demonstrations demanding that Flint re-connect with [the Detroit Water and Sewerage Department].”
The actionable harm alleged in plaintiffs’ two complaints consists of the exposure to the toxic water from the Flint River, which began on April 25, 2014. Simply put, plaintiffs did not file a notice of intention to file a claim or the claim itself within six months of that date; therefore, their claim is barred by MCL 600.6431(3).
In an order in
Henry v Dow Chem Co
,
The lead opinion concludes that “questions of fact remain as to when plaintiffs
suffered injury to person and property . . . .” However, plaintiffs’ complaint and amended
complaint very clearly allege that plaintiffs were harmed beginning on April 25, 2014,
when they were first exposed to the contaminated water of the Flint River. Although
plaintiffs claim that they
continued
over time to be harmed by such exposure, “[a]dditional
damages resulting from the same harm do not reset the accrual date or give rise to a new
cause of action.”
Frank
,
Plaintiffs rely on
Hart v Detroit
,
The time of “taking” in an inverse condemnation action is not necessarily coincidental with the time plaintiff’s cause of action accrues. . . . It is common for such actions to involve a continuous wrong by the condemnor rather than a single act. In an inverse condemnation action such as the present one, in which plaintiffs claim a continuous wrong by the condemnor, it is well-settled that the statute of limitations does not begin to run until the consequences of the condemnor’s actions have stabilized. [ Id . at 503-504.]
However,
Hart
is no longer good law because this Court in
Garg v Macomb Co Community
Mental Health Servs
,
[T]he statute simply states that a plaintiff “shall not” bring a claim for injuries outside the limitations period. Nothing in these provisions permits a plaintiff to recover for injuries outside the limitations period when they are
susceptible to being characterized as “continuing violations.” To allow
recovery for such claims is simply to extend the limitations period beyond
that which was expressly established by the Legislature. [
Id
. at 282.]
The same proposition is true here. MCL 600.6431 provides that “[n]o claim may be
maintained against the state . . . for property damage or personal injuries [unless the]
claimant . . . file[s] with the clerk of the court of claims a notice of intention to file a claim
or the claim itself within 6 months following the happening of the event giving rise to the
cause of action.”
[6]
As discussed earlier, the event giving rise to the cause of action at issue
here was the exposure to the toxic water, which initially occurred on April 25, 2014.
[7]
*125
Plaintiffs did not file a notice of intention to file a claim or the claim itself within six months
of April 25, 2014, and therefore their claims are barred. Once again, “[a]dditional damages
resulting from the same harm do not reset the accrual date or give rise to a new cause of
action.”
Frank
,
and restricted the property owners’ rights to use their property. Judge G ADOLA concluded
that the plaintiffs’ action accrued when the dioxins reached the plaintiffs’ property,
explaining that “[i]t may be true that the value of plaintiffs’ property changed when the
MDEQ published its 2002 bulletin, but plaintiffs’ discovery in 2002 that their damages
were greater than originally supposed when the dioxin was deposited on their properties,
possibly as early as the 1970s, did not create a new accrual date for plaintiffs’ claims. Such
reasoning overlooks the clear directive of MCL 600.5827 that ‘the claim accrues at the
time the wrong upon which the claim is based was done
regardless of the time when
damage results
.’ (Emphasis added.)”
Henry
, 319 Mich App at 735 (G ADOLA , P.J.,
dissenting). As already noted, this Court reversed the Court of Appeals in
Henry
“for the
reasons stated in the Court of Appeals dissenting opinion.”
Henry
,
condemnation. “The right to just compensation, in the context of an inverse condemnation
suit for diminution in value . . . exists only where the landowner can allege a unique or
special injury, that is, an injury that is different in kind, not simply in degree, from the harm
suffered by all persons similarly situated.”
Spiek v Dep’t of Transp
,
Where harm is shared in common by many members of the public, the appropriate remedy lies with the legislative branch and the regulatory bodies created thereby . . . . Only where the harm is peculiar or unique in this context does the judicial remedy become appropriate. [ Id . at 349.] Concerning the meaning of “similarly situated,” the lead opinion is correct that Spiek compared the plaintiffs to other persons who “reside near a public highway,” rather than the specific highway that the plaintiffs resided near. Id . at 350 (emphasis added). However, in discussing this requirement in general, Spiek expressly indicated that a plaintiff’s alleged damage must not be “common to all property in the neighborhood” or “common [to] all lands in the vicinity.” Id . at 346, 348 n 14 (quotation marks and citation
2. HARSH & UNREASONABLE CONSEQUENCES
The Court of Appeals also held that “the harsh-and-unreasonable-consequences
exception relieves plaintiffs from the statutory notice requirements,”
Mays
, 323 Mich App
at 25, and Justice B ERNSTEIN agrees. However, that conclusion is simply inconsistent
omitted). In addition, contrary to the approach of the majority, this Court in
Hill v State
Hwy Comm
,
Assuming that the latter defines the pertinent inquiry, plaintiffs have not alleged that they have suffered a unique or special injury that is any different in kind from the harm suffered by all persons similarly situated. Indeed, plaintiffs claim to represent all the Flint water users that suffered personal injuries and property damage from the water. That is, plaintiffs claim to represent all persons similarly situated. Therefore, arguably by definition , plaintiffs have not alleged an injury that is any different in kind from those suffered by all persons similarly situated. Because the harm that plaintiffs alleged is shared in common by many members of the public, the appropriate remedy arguably lies with the legislative branch and the regulatory bodies created thereby. That is, it is not necessarily that there is no remedy available to persons injured but that the remedy is more properly fashioned by a different agency of government. However, given that I conclude that plaintiffs here failed to comply with the notice provision of the Court of Claims Act, it is unnecessary for me to decide whether plaintiffs have adequately alleged a claim of inverse condemnation. Similarly, it is unnecessary for me to address the merits of plaintiffs’ substantive due-process claim, so I will merely observe that I find Justice V IVIANO ’s opinion to be highly estimable and share a good many of his concerns. The Court of Claims also relied on the harsh-and-unreasonable-consequences exception
to deny defendants’ motions for summary disposition. The Court of Appeals dissent
concluded that the harsh-and-unreasonable-consequences exception was abrogated by
McCahan
and
Rowland
because in those cases this Court held that no judicially created
savings construction is permitted to avoid a clear statutory mandate. However, those cases
involved statutory claims, and we held that because the Legislature could completely
abolish those claims, it could obviously place restrictions on such claims. The instant case
*127
with the Court of Appeals’ decision in
Rusha
,
involves constitutional claims that the Legislature lacks the authority to completely abolish
(at least with regard to inverse condemnation), and this Court has long held that the
Legislature cannot enact limitation periods that “are so harsh and unreasonable in their
consequences that they effectively divest plaintiffs of the access to the courts intended by
the grant of the substantive right.”
Forest
,
With regard to this particular case, it would not have been at all difficult for plaintiffs to comply with the six-month notice provision because, based on their own complaints, it is clear that plaintiffs were well aware of their possible cause of action within six months of the event giving rise to their cause of action. As discussed earlier, this event was the actual exposure to the toxic water, which began on April 25, 2014. Within days after this event, plaintiffs complained that the water was cloudy and foul in appearance, taste, and odor. By May 2014, there had been numerous press accounts about the water quality problems in Flint. By June 2014, many Flint water users reported that the water was making them ill. And by August 2014, several boil-water advisories had been issued. Plaintiffs had been presented with numerous indications that they were suffering harm within six months of the water-source switch and so could have easily filed their notice of intent in a timely manner.
Moreover, plaintiffs were certainly well aware of their possible cause of action more than six months before they filed suit on January 21, 2016, given that on January 20, 2015, citizen protests mounted about the water and on February 17, 2015, there were public demonstrations demanding that Flint reconnect with the Detroit Water and Sewerage Department. Indeed, plaintiff Melissa Mays actually filed two complaints based on the very same set of facts as in the instant case-- one in Genesee Circuit Court on June 5, 2015, and the other in the United States District Court for the Eastern District of Michigan on July 6, 2015-- well before the instant complaint was filed. Plaintiffs did not even file their complaint in the instant case within six months of filing those complaints.
For these reasons, I conclude that the harsh-and-unreasonable-consequences exception does not relieve plaintiffs from the statutory notice requirements.
3. FRAUDULENT CONCEALMENT
The Court of Appeals also held that “the fraudulent-concealment exception of MCL
600.5855 may provide an alternative basis to affirm the court’s denial of [defendants’
motions for] summary disposition,”
Mays
,
This is further evidenced by the fact that the Legislature incorporated the fraudulent- concealment exception into the statute-of-limitations provision of the Court of Claims Act, but not into its statutory notice provision. MCL 600.6452(1) of the Court of Claims Act provides that the statute of limitations is three years in an action against the state. MCL 600.6452(2) of the Court of Claims Act provides that “[e]xcept as modified by this section, the provisions of RJA chapter 58, relative to the limitation of actions, shall also be applicable to the limitation prescribed in this section.” The fraudulent-concealment statute, MCL 600.5855, is a “provision[] of RJA chapter 58, relative to the limitation of actions,” and thus is applicable to the statute-of-limitations provision of the Court of Claims Act. On the other hand, the statutory notice provision of the Court of Claims Act does not similarly incorporate the fraudulent-concealment statute. Given that the Legislature chose to incorporate the fraudulent-concealment statute into the statute of limitations but not into the statutory notice provision, we should presume absent evidence to the contrary that this was purposeful and should not summarily incorporate the fraudulent-concealment statute where it has not been placed by the lawmaking body of our state government.
Furthermore, even assuming that the fraudulent-concealment statute does apply to MCL 600.6431(3), for the same reasons that I conclude that the harsh-and-unreasonable- consequences exception does not relieve plaintiffs from the statutory notice requirements, I conclude that the fraudulent-concealment statute also does not relieve plaintiffs from the statutory notice requirements-- namely, it is clear that plaintiffs were well aware of their possible cause of action well within six months of the event giving rise to their cause of action and thus the existence of their cause of action was not fraudulently concealed from them. Once again, they could have easily filed the required notice of intent within six months of the event giving rise to their cause of action.
For these reasons, I conclude that the fraudulent-concealment exception of MCL
600.5855 does not provide a basis to affirm the trial court’s denial of summary disposition.
Yet, he reads such an exception into the statutory notice provision of the Court of Claims
Act because its absence there is “not reconcilable with the Legislature’s intent to provide
claimants with two years from the date of discovery to bring suit for harm that was
fraudulently concealed, as expressed in MCL 600.6452(2).” However, this is simply
inconsistent with the plainest expression of the Legislature’s actual intention, i.e., the law
enacted. See
Mayor of Lansing v Pub Serv Comm
,
Justice B ERNSTEIN also asserts that failing to read a fraudulent-concealment exception into the statutory notice provision “would result in reading out MCL 600.6452(2) entirely, because plaintiffs would never be able to utilize the fraudulent-concealment exception.” I respectfully disagree. MCL 600.6452(2) does more than incorporate the fraudulent-concealment statute into the statute-of-limitations provision of the Court of Claims Act; rather, it incorporates all the “provisions of RJA chapter 58, relative to the limitation of actions” into the statute-of-limitations provision of the Court of Claims Act. Therefore, failing to read a fraudulent-concealment exception into the statutory notice provision of the Court of Claims Act would not “entirely” result in reading out MCL 600.6452(2).
II. CONCLUSION Because plaintiffs did not file a notice of intent to file a claim or the claim itself within six months following the happening of the event giving rise to the cause of action, this Court should reverse the Court of Appeals and remand this case to the Court of Claims for it to enter an order granting defendants’ motions for summary disposition.
Stephen J. Markman Brian K. Zahra C LEMENT , J., did not participate because of her prior involvement as chief legal counsel for Governor Rick Snyder.
Notes
[1] The name of the MDEQ was changed to the Michigan Department of Environment, Great Lakes, and Energy (EGLE) after the filing of this lawsuit. See Executive Order No. 2019- 06. For consistency’s sake, in this case we refer to the Department as the MDEQ. We note that the Department of Human Services and the Department of Community Health were combined to form DHHS during the pendency of this case. See Executive Order No. 2015- 04.
[2] An emergency manager is an official appointed by the governor “to address a financial emergency” within a local government. MCL 141.1549(1). Under our state’s law, emergency managers effectively replace locally elected government officials and have broad powers to address financial emergencies: Upon appointment, an emergency manager shall act for and in the place and stead of the governing body and the office of chief administrative officer of the local government. The emergency manager shall have broad powers in receivership to rectify the financial emergency and to assure the fiscal accountability of the local government and the local government’s capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare. Following appointment of an emergency manager and during the pendency of receivership, the governing body and the chief administrative officer of the local government shall not exercise any of the powers of those offices except as may be specifically authorized in writing by the emergency manager or as otherwise provided by this act and are subject to any conditions required by the emergency manager. [MCL 141.1549(2).] 3
[3] We conclude that defendants have not produced sufficient evidence at this stage of litigation to contradict plaintiffs’ allegations.
[4] Later in this opinion, we review defendants’ motions for summary disposition on plaintiffs’ procedural compliance with statutory notice requirements under MCR 2.116(C)(4) and (7). 4
[5] We address plaintiffs’ claim of inverse condemnation first because it is the sole claim in which a majority exists to expressly affirm the Court of Appeals. 9
[6] In the context of this unique case, the analysis is somewhat ill-fitting because we do not
normally consider delivery of water to the public as a “legalized nuisance.” See
Richards
,
[7] This provision was amended after plaintiffs filed their suit. See
[8] While plaintiffs’ amended complaint states that their claim “accrued on October 16, 2016 , when Defendants re-connected the Flint water system to water supplied by the [DWSD],” elsewhere in their complaint plaintiffs acknowledge that defendants actually reconnected Flint to the DWSD on October 16, . (Emphasis added.) In reviewing the complaint as a whole, we conclude that plaintiffs’ mention of that event occurring in 2016 was made in error.
[9] Justice M ARKMAN asserts that plaintiffs do not allege injuries from in vitro exposure to Flint water. We disagree. While plaintiffs do not mention in vitro exposure explicitly, they make allegations regarding personal injury from exposure to and ingestion of Flint water on behalf of themselves and other Flint water users. In our view, it is reasonable to assume that plaintiffs exist in this putative class who were exposed to Flint water in the womb, suffered injury, and were born after April 2014.
[11] Plaintiffs argue that the harsh-and-unreasonable-consequences doctrine and the fraudulent-concealment doctrine also support their claims that satisfactory notice was filed. Because we believe that there still remain questions of fact about when plaintiffs’ harms accrued, we see no need to look to these doctrines at this point in the proceedings. Once discovery is completed, the applicability of these doctrines may be reconsidered as necessary.
[12] The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” US Const, Am XI.
[13] We conclude that Justice V IVIANO ’s arguments to the contrary are premature. Plaintiffs should be permitted to develop their factual allegations through discovery before it is determined whether monetary damages are available.
[14] We note that plaintiffs seek injunctive relief against several of the named defendants in a related federal-court action. Plaintiffs seek an order to remediate the harm caused by defendants’ conduct, including repairs to property and the establishment of a medical- monitoring fund. Plaintiffs seek an award of compensatory and punitive damages. Although plaintiffs may seek alternative remedies in federal court, that fact does not affect our decision regarding the availability of alternative remedies. The availability of these remedies remains to be seen. If those remedies materialize, they, of course, may affect any future consideration of appropriate remedies in this action.
[1] In
Rowland
, a personal-injury case against a municipality in which the plaintiff fell and
was injured while crossing a street, this Court ruled that a suit may be dismissed for failure
to comply with a statutory notice requirement even if the defendant was not prejudiced by
the lack of notice. The Court explained, “[I]nasmuch as the Legislature is not even required
to provide a defective highway exception to governmental immunity, it surely has the
authority to allow such suits only upon compliance with rational notice limits.”
Rowland
,
[2]
Trentadue
,
[3] In
McCahan
,
[4] I note that the RJA has no statutory notice requirement. See MCL 600.101 et seq . 9
[1] I respectfully disagree with Justice V IVIANO ’s framing of the right in question as the right
“not to be exposed to contaminated water.” Plaintiffs’ substantive due-process claim is
based on the alleged violation of their constitutional right to bodily integrity. This well-
established right is among the most fundamental. “Because our notions of liberty are
inextricably entwined with our idea of physical freedom and self-determination, the Court
has often deemed state incursions into the body repugnant to the interests protected by the
Due Process Clause.”
Cruzan v Dir, Missouri Dep’t of Health
,
[2] Restatement Torts, 2d, § 874A provides: “When a legislative provision 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.” This section makes clear that the term “legislative provision” includes a constitutional provision. See id . at comment a .
[3] Section 1983 of the Civil Rights Act of 1871 authorizes suits for monetary damages for federal civil-rights violations committed under color of state law.
[4] “Examples of the influence of federalism include: the existence and scope of absolute and qualified individual immunities; the ‘official policy or custom’ requirement for local government liability; and the various ‘procedural’ defenses the Court has applied to section 1983, such as statutes of limitations, preclusion and abstention.” Nahmod, State Constitutional Torts: DeShaney , Reverse-Federalism and Community , 26 Rutgers L J 949, 950 (1995) (citations omitted). See also Friesen, Recovering Damages for State Bills of Rights Claims , 63 Tex L Rev 1269, 1275 (1985) (arguing that state-court judges “should not suffer from the conservatizing influences, which affect federal courts, of the need to make nationally uniform rules, which often bind the officials of another sovereign”).
[5] For what it is worth, I do not share Justice V IVIANO ’s critique of
Bivens
’s foundation.
The Supreme Court has a long history of permitting suits for damages against rogue federal
officers. See Fallon,
Bidding Farewell to Constitutional Torts
, 107 Calif L Rev 933, 941-
946 (2019); see, e.g.,
Murray v Schooner Charming Betsy
,
[1] In other words, I join Parts II(A), (B)(1), (B)(2), and (B)(3) of the lead opinion. Because I believe more factual development is needed to determine when plaintiffs’ inverse- condemnation claim accrued, I would not yet reach a conclusion as to whether the fraudulent-concealment exception or the harsh-and-unreasonable-consequences exception might apply if the claim is later determined to be untimely.
[2] Const 1963, art 1, § 17.
[3]
Cummins v Robinson Twp
,
[9]
Sierb
,
[10]
Bonner
,
[11]
Washington v Glucksberg
,
[12]
Id
. at 720-721 (citations omitted). See also
id
. at 725 (noting that the Court in
Cruzan v
Dir, Missouri Dep’t of Health
,
[13] See
Glucksberg
,
[14]
Sierb
,
[15]
Mays v Governor
,
[16] See also
Guertin
,
[21]
People v Kevorkian
,
[22]
Mays
,
[23]
Mays
,
[24]
In re Cincinnati Radiation Litigation
,
[25] Id . at 800. The United States District Court for the Southern District of Ohio denied the defendants’ motion to dismiss the plaintiffs’ substantive due-process claim. Id . at 801.
[26]
Mays
,
[27] So are other cases involving forced medication. See, e.g.,
Washington v Harper
, 494 US
210, 221-222;
[28]
Guertin
,
[29]
Glucksberg
,
[30]
Planned Parenthood of Southeastern Pennsylvania v Casey
,
[31] That there is no constitutional right does not mean that our citizens should not expect and demand to receive public water free from contaminants or hold their public officials accountable for providing contaminated water (whether at the ballot box or by asserting other viable legal claims, which plaintiffs have done here and in a number of other related suits arising out of the Flint water crisis).
[32]
Chicago v Morales
,
[34]
Mays
,
[35]
Rimmer-Bey v Brown
,
[37] Defendants moved for summary disposition regarding plaintiffs’ claim of a substantive
due-process right to bodily integrity under MCR 2.116(C)(7) and (8). For motions under
MCR 2.116(C)(7), “[t]he contents of the complaint are accepted as true unless contradicted
by documentation submitted by the movant.”
Maiden v Rozwood
,
[38] For example, the high incidence of Legionnaires’ disease was, at first, only noted as having a “possible connection to [the] water supply.” There was also disagreement among experts regarding the quality of the water. After Agent Miguel Del Toral of the Environmental Protection Agency (EPA) prepared a memorandum stating that there were high levels of lead, EPA Region 5 Director Dr. Susan Hedman told Mayor Dwayne Walling that “what he was given was a preliminary draft [of the memorandum] and that it would be premature to draw any conclusions based on that draft.” Specifically regarding studies of blood lead levels in children, plaintiffs recount that though the Michigan Department of Health and Human Services had data showing elevated blood lead levels, others at the Childhood Lead Poisoning Prevention Program disputed that the water was the cause or that there even were elevated blood lead levels. In sum, despite the various signs that the water posed health risks, plaintiffs cite the Task Force Report, which recounts that there were “repeated assurances that the water was safe.”
[39] As to gathering information, plaintiffs note that in January 2015, “[s]taff from Genesee County hospitals, [the Michigan Department of Health and Human Services (MDHHS)], [the Michigan Department of Environmental Quality (MDEQ)] and [the Genesee County Health Department (GCHD)] [met], and MDHHS Director Nick Lyon direct[ed] GCHD to conduct and complete its evaluation of the causes of the increased Legionellosis cases that had begun to occur in 2014.” And on January 30, 2015, “Brad Wurfel/MDEQ e-mail[ed] Dave Murray, Governor Snyder’s deputy press secretary, re: Legionella, saying said [sic] he didn’t want MDEQ Director Wyant ‘to say publicly that the water in Flint is safe until we get the results of some county health department traceback work on 42 cases of Legionellosis disease in Genesee County since last May.’ ”
[40] Votta , 600 F Appx at 18.
[41]
Farmer
,
[42] Judge McKeague reached the same conclusion regarding the plaintiffs’ allegations in
Guertin
.
Guertin
,
[43] In light of my conclusion that plaintiffs failed to allege a claim for a violation of substantive due process because the right they assert is not deeply rooted in our nation’s history and they have not alleged conscience-shocking conduct on behalf of defendants, I need not reach the issue whether defendants acted pursuant to a custom or policy.
[44]
Smith v Dep’t of Pub Health
,
[45] Id . at 544. Smith addressed several issues—namely, “(1) whether the state is a ‘person’ for purposes of a damage suit under 42 USC 1983; (2) whether a state official, sued in an official capacity, is a ‘person’ for purposes of a damage suit under 42 USC 1983; (3) whether there is an ‘intentional tort’ exception to governmental immunity; and (4) whether a plaintiff may sue the state for damages for violations of the Michigan Constitution.” Id . But I focus only on the latter issue and the related holding above.
[46]
Smith v Michigan
,
[47]
Will v Dep’t of Civil Serv
,
[48]
Smith
,
[49] Id . at 551.
[50] Id . at 546.
[51] Id . at 547.
[52] Justice B RICKLEY , joined by Justice R ILEY , “decline[d] to infer any right to sue the state for damages on the basis of violations” that the plaintiff in Smith alleged. Id . at 612-613 (opinion by B RICKLEY , J.). Justice B OYLE , joined by Justice C AVANAGH , concurred in part and dissented in part. Justice B OYLE said that she would remand the Court of Appeals decision in Smith to the Court of Claims for further proceedings, namely, to determine whether the constitutional violation occurred by virtue of a governmental custom or policy and, if so, whether there would be a damages remedy for such a violation. Id . at 652 (B OYLE , J., concurring in part and dissenting in part). She proceeded to explain that “[w]e would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases.” Id . at 647. Justice A RCHER , joined by Justice L EVIN , dissented on other grounds not relevant to the purposes of this
[54]
Bivens v Six Unknown Fed Bureau of Narcotics Agents
,
[55]
Smith
,
[56] Id . at 651 (B OYLE , J., concurring in part and dissenting in part).
[57] Regarding text, this Court and the Court of Appeals have declined to recognize an
implied cause of action for damages for a violation of the Equal Protection Clause, Const
1963, art 1, § 2, based on the specific language of that provision.
Cremonte v Mich State
Police
,
[62]
Smith
,
[63]
Bivens
,
[64]
Smith
,
[65] The plaintiff in
Will
had failed to preserve his claim, and the Court voted to reverse that
portion of the Court of Appeals judgment that remanded
Will
to the Court of Claims for
further proceedings regarding the liability of the Director of the State Police.
Smith
, 428
Mich at 544-545. Chief Justice M C C ORMACK asserts that “it is not at all clear that the
relevant holding of
Smith
is at all or exclusively based on
Bivens
.”
Smith
is certainly an
odd decision, since the Court’s opinion was issued as a memorandum opinion consisting
only of the issues presented, the Court’s holdings, and its disposition of the case. Standing
alone, that opinion would appear to lack any substantive legal effect because it violates
Const 1963, art 6, § 6, which states that “[d]ecisions of the supreme court . . . shall be in
writing and shall contain a concise statement of the facts and reasons for each
decision . . . .” See
DeFrain v State Farm Mut Auto Ins Co
,
[70] Id . at 394.
[71] Id . at 395.
[72]
Id
. at 397. Chief Justice M C C ORMACK states that “[t]he Supreme Court has a long history
of permitting suits for damages against rogue federal officers.” However, the cases she
cites are not examples of courts awarding damages for constitutional violations but rather
involve common-law tort and statutory violations. Fallon,
Bidding Farewell to
Constitutional Torts
, 107 Calif L Rev 933, 943 (2019) (discussing
Little v Barreme
,
[73]
Bivens
,
[74]
Carlson v Green
,
[75] Ziglar v Abbasi , 582 US ___, ___; 137 S Ct 1843, 1857; 198 L Ed 2d 290 (2017) (citations omitted).
[76]
Alexander v Sandoval
,
[77]
Id
. at 286. See also
Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child
Dev Bd
, 472 Mich 479, 496-497; 697 NW2d 871 (2005) (“Although the United States
Supreme Court in the last century embraced a short-lived willingness to create remedies to
enforce private rights, the Court ‘abandoned’ that approach to statutory remedies in
Cort v
Ash
[, 422 US 66; 95 S Ct 2080; 45 L Ed 2d 26 (1975),] and ‘[has] not returned to it
since.’ ”) (citations omitted);
Office Planning Group
,
[78]
Correctional Servs Corp v Malesko
,
[79]
Davis v Passman
,
[80]
Carlson
,
[81]
Hernandez v Mesa
,
[82]
Id
. at 742-743 (citations omitted). See also
Ziglar
,
[85] Dellinger,
Of Rights and Remedies: The Constitution as a Sword
, 85 Harv L Rev 1532,
1548-1549 (1972), quoting
Mapp v Ohio
,
[86] US Const, art I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”); Const 1963, art 4, § 1 (“Except to the extent limited or abrogated by article IV, section 6 or article V, section 2, the legislative power of the State of Michigan is vested in a senate and a house of representatives.”).
[87] See
Mintz v Jacob
,
[88] Cooley, Constitutional Limitations (5th ed), pp 86-87 n 3 (“ ‘It is highly probable that inconveniences will result from following the Constitution as it is written. But that consideration can have no force with me. . . . I have never yielded to considerations of expediency in expounding it [i.e., the fundamental law]. There is always some plausible
[93]
Smith
,
[1] Justice B ERNSTEIN is certainly correct that what occurred to the people of Flint was appalling. But he is, with all respect, incorrect in his characterization of the instant analysis as “highly legalistic.” Relevant law requires plaintiffs to “file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action,” MCL 600.6431(3), and plaintiffs did not do this. Mine is a wholly legal, not a “legalistic,” analysis. 3
[2] This Court noted that “[b]ecause the issue is uncontested, we presume, without deciding, that the definition of ‘accrual’ in MCL 600.5827 applies equivalently to MCL 600.6431.” Id . at 183 n 8. We also noted that even if we were to apply the common-law definition of 6
[3] The Court of Appeals opinion in the instant case preceded this Court’s opinion in Bauserman . The Court of Appeals dissent concluded that the common-law definition of accrual was applicable, including the common-law discovery rule. Mays , 323 Mich App at 98 (R IORDAN , J., dissenting). Nevertheless, the dissent concluded that the action was not timely filed because plaintiffs knew or should have known of their cause of action significantly longer than six months before they filed this cause of action. Id . at 99. Assuming for the sake of argument that the common-law definition of accrual, including the common-law discovery rule, does apply here, I agree with the dissenting judge that the action was not timely filed because plaintiffs knew or should have known of their cause of action more than six months before they filed the cause of action, as will be discussed in greater detail later. 9
[4] The lead opinion concludes that Henry is distinguishable because plaintiffs in the instant case “do not allege that their claimed harms resulted at the time Flint’s water source was switched.” However, plaintiffs’ original complaint alleges that plaintiffs “ from April 25, to the present, have experienced and will continue to experience serious personal injury and property damage caused by Defendants’ deliberately indifferent decision to expose them to the extreme toxicity of water pumped from the Flint River into their homes, schools, hospitals, correctional facilities, workplaces and public places.” (Emphasis added.) Similarly, plaintiffs’ amended complaint alleges that plaintiffs “ since April 25, , were and continue to be injured in person and property because they were exposed to highly dangerous conditions created, caused and knowingly prolonged by Defendants’ conduct . . . .” (Emphasis added.)
[5] The lead opinion states that “[p]laintiffs have also alleged injuries that might include plaintiffs who suffered in vitro exposure to toxic water” and therefore “[i]t would simply be illogical to foreclose a plaintiff’s suit if the plaintiff had been exposed to the Flint water in the womb and thus suffered harm but had not yet been born as of April 2014.” However, plaintiffs’ complaints do not say anything at all concerning in vitro exposure to toxic water; therefore, that issue is simply not before this Court.
[6] The lead opinion is correct that Hart involved an inverse-condemnation claim, while Garg involved a discrimination claim. However, the issue in both those cases was essentially the same: whether the statute of limitations permits a plaintiff to recover for injuries suffered outside the limitations period where those injuries are susceptible to being characterized as “continuing violations.” Garg , the later-in-time decision, answered that question in the negative, and I see no logical reason why its reasoning would not apply in other contexts, including, in particular, in the context of an inverse-condemnation claim. Although this Court did not expressly overrule Hart in Garg , I do not see how the reasoning of Hart conceivably could survive the reasoning of Garg .
[7] Although
Henry
did not involve an inverse-condemnation claim, it did involve a similar
claim of contamination that allegedly resulted in a diminution of property value. And this
Court held that the claim accrued when the dioxin reached the plaintiffs’ property,
“regardless of whether it was possible at that time to calculate the level of monetary
damage.”
Henry v Dow Chem Co,
319 Mich App 704, 736; 905 NW2d 422 (2017)
(G ADOLA , P.J., dissenting);
Henry
,
[10] The Court of Claims rejected plaintiffs’ argument that the fraudulent-concealment statute should be applied in this case. The Court of Appeals dissent also concluded that the fraudulent-concealment statute does not apply.
[11] The fraudulent-concealment statute, MCL 600.5855, provides: If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.
[12] Justice B ERNSTEIN recognizes that “[t]he Legislature did not create a fraudulent- concealment exception for the statutory notice provision in the [Court of Claims Act].”