Will v. Department of Civil Service

• Decision Date: 11 December 1985
• Docket Number: Docket No. 74840
• Citation: 377 N.W.2d 826,145 Mich.App. 214
• Parties: Ray Eugene WILL, Plaintiff-Appellee/Cross-Appellant, v. DEPARTMENT OF CIVIL SERVICE and State Personnel Director, Defendants, and Michigan Department of State Police and Director of State Police, Defendants- Appellants/Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 826

377 N.W.2d 826

145 Mich.App. 214

Ray Eugene WILL, Plaintiff-Appellee/Cross-Appellant, v. DEPARTMENT OF CIVIL SERVICE and State Personnel Director, Defendants and Michigan Department of State Police and Director of State Police, Defendants- Appellants/Cross-Appellees.

Docket No. 74840.

Court of Appeals of Michigan.

Submitted Oct. 12, 1984.

Decided July 9, 1985.

Leave to Appeal Denied Sept. 25, 1985.

Released for Publication Dec. 11, 1985.

Lick, Emery, DeVine & Mallory, P.C. by Lawrence J. Emery, Lansing, for plaintiff-appellee/cross-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and George H. Weller, Asst. Atty. Gen., for defendants.

Before DANHOF, C.J., and GRIBBS and SHUSTER ^*, JJ.

PER CURIAM.

Plaintiff, a state employee, sued defendants for damages for wrongfully denying him employment with the State Police, pursuant to 42 U.S.C. Sec. 1983 and the Michigan Constitution. The Court of Claims granted plaintiff summary judgment against the Department of State Police and the Director of State Police on the basis of his 42 U.S.C. Sec. 1983 claim. The Department of

State Police and its director (hereinafter defendants) appeal as of right, raising issues of jurisdiction, liability, and damages. Defendants' motion to affirm in plaintiff's cross-appeal was granted.

FACTS

Plaintiff has been a state employee since 1969. He began at level 7 in the Department of State, and was reclassified to level 9. He was then transferred to a level 10 position at the Department of Social Services, and then to a level 11 position as an administrative analyst, an entry supervisory position. In the latter half of 1973, plaintiff sought opportunities to advance to data systems analyst 11 and one of these opportunities arose with the State Police. Although plaintiff was ranked number two on the promotional register and the number one candidate withdrew, plaintiff was not hired by the State Police that summer. He subsequently obtained a data systems analyst 11 position with the Highway Department in November, 1983.

Unbeknowst to plaintiff, when the defendant department ran a security check on plaintiff, information about plaintiff's student activist brother, Charles, was released. Charles' file contained the notation, "Subject's brother Ray Eugene DOB 2-27-44 made application for employment with MSP. Personnel advised 8-9-73". Plaintiff did not learn of this until 1977, when legislation provided for maintenance of the so-called "red squad" files, 1950 (Ex Sess) Pa 38, 39, and 40, was declared unconstitutional and Charles obtained his file and showed it to his brother, plaintiff.

Plaintiff sought a hearing with the Civil Service Commission, but his grievance was dismissed as untimely. Plaintiff appealed to circuit court, which ordered that plaintiff be granted a hearing. The hearing officer ruled that "partisan considerations" were a substantial factor in plaintiff's being denied employment with the State Police, in violation of Const. 1963, art. 11, Sec. 5 and Civil Services Rules 1.1 and 1.2. Plaintiff was therefore awarded $201.60, the pay difference between administrative analyst 11 and data systems analyst 11 for the period from the date on which the State Police hired another candidate for the data systems analyst position, September 23, 1973, to the date on which plaintiff obtained the comparable position with the Highway Department, November 4, 1973.

Plaintiff then began this action in the Court of Claims, seeking damages under 42 U.S.C. Sec. 1983 and the Michigan Constitution. Accelerated judgment was granted to all defendants on the count pertaining to the Michigan constitution, as plaintiff had not exhausted his administrative remedies. Based on the grievance decision, summary judgment as to liability was granted in favor of plaintiff and against the Department of State Police and the Director of State Police; and the Department of Civil Service and State Personnel Director were dismissed from the action. After a hearing on damages, the court awarded plaintiff $584.64 for lost wages, $40,544 for career loss, $56,052 for emotional distress, and $56,052 in exemplary damages.

ISSUE AND DECISION

May the State of Michigan, its agencies, or their directors be sued for damages in the Court of Claims under the Fourteenth Amendment and 42 U.S.C. Sec. 1983?

This panel holds that the Court of Claims has jurisidiction over 42 U.S.C. Sec. 1983 actions against the state, its agencies, and their directors, but such actions cannot be maintained against the state or its agencies because Congress has not abrogated states' sovereign immunity from Sec. 1983 suits, and the state has not waived its immunity. In addition, liability of a director of a state agency is available only in certain cases and has not been established in this case.

A. Court of Claims Jurisdiction over a 42 U.S.C. Sec. 1983 Action

Defendants argue that the Court of Claims has no jurisdiction over an action brought against the State based on the Fourteenth Amendment. We hold that The Court of Claims was created, and its jurisdiction defined, in 1939 by the following provision, which has remained intact to the present:

while the Court of Claims has jurisdiction over federally created causes of action such as those enacted to enforce the Fourteenth Amendment, the state and its agencies cannot be sued under 42 U.S.C. Sec. 1983.

"The court has power and jurisdiction:

"(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms or agencies." M.C.L. Sec. 600.6419(1); M.S.A. Sec. 27.6419(1).

This jurisdiction is exclusive, "except as provided in section 6440". M.C.L. Sec. 600.6440; M.S.A. Sec. 27A.6440 provides:

"No claimant may be permitted to file claim in said court against the state nor any department, commission, board, institution, arm or agency thereof who has an adequate remedy upon his claim in the federal courts * * *."

The Eleventh Amendment to the U.S. Constitution bars suits by private citizens against the State of Michigan in federal court. Brown Brother Equipment Co. v. Michigan, 266 F.Supp. 506 (W.D.Mich.,1967). The Court of Claims Act does not provide consent for such suits. Id. Thus, suits against the State of Michigan by citizens of this state may be brought only in the Court of Claims.

By virtue of the supremacy clause of the U.S. Const., art. VI, Sec. 2, state courts must give cognizance to federal statutes. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947); Dudley v. Genesee County Sheriff, 50 Mich.App. 678, 680, 213 N.W.2d 805 (1973). Although the U.S. Supreme Court has expressly reserved the question whether state courts are obligated to entertain Sec. 1983 actions, Maine v. Thiboutot, 448 U.S. 1, 3, fn. 1, 100 S.Ct. 2502, 2503, fn. 1, 65 L.Ed.2d 535 (1980); Martinez v. California, 444 U.S. 277, 283, fn. 7, 100 S.Ct. 553, 558, fn. 7, 62 L.Ed.2d 481 (1980), Michigan courts have permitted such actions without questioning their right to refuse them, cf. Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969). Since the Court of Claims has exclusive jurisdiction over all actions against the state, it must have subject-matter jurisdiction over actions the state brought pursuant to a federal statute such as 42 U.S.C. Sec. 1983. It was proper for the Court of Claims to assume jurisdiction over this case.

As to the questions of the jurisdiction of the Court of Claims over the state officials, it must be noted that plaintiff did not sue the state officials in their individual capacities, so a suit against them in federal court for damages would be barred by the Eleventh Amendment because the state would be the party in fact. Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Although the Court of Claims statute does not specifically mention state officials, this Court has interpreted the statute to grant jurisdiction over claims against state officials. Hamilton v. Reynolds, 129 Mich.App. 375, 378, 341 N.W.2d 152 (1983), and cases cited therein.

B. 42 U.S.C. Sec. 1983 Action Against a State Agency

The Federal Civil Rights Act provides in 42 U.S.C. Sec. 1983.

"Every person who, under color of any statute * * * of any state * * * subjects * * * any citizen * * * to the deprivation of any rights * * * secured by the Constitution and laws, shall be liable to the party injured * * *."

Whether a state or any of its agencies is a "person" under this statute has been the subject of ongoing debate in both federal and state courts. As previously mentioned, it is well established that states cannot be sued in federal court because of the Eleventh Amendment. Stefaniak v. Michigan, 564 F.Supp. 1194, 1198 (W.D.Mich., 1983). However, federal courts have dismissed state agencies as defendants, not on Eleventh Amendment grounds, but because they are not "persons" under Sec. 1983. Laje The lower federal courts often rely on other lower federal courts because the United States Supreme Court has taken varying stands on this issue. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court ruled that municipalities were not "persons" under 42 U.S.C. Sec. 1983. The Michigan Supreme Court expanded that ruling to hold that neither the State nor the State Fair Commission could be sued under Sec. 1983. Hirych v. State Fair Comm., 376 Mich. 384, 392, 136 N.W.2d 910 (1965). But in Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court specifically overruled in Monroe, casting the Hirych holding into doubt.

                v. R.E. Thomason General Hospital, 665 F.2d 724, 727 (CA 5, 1982);   Ruiz v. Estelle, 679 F.2d 1115 (CA 5, 1982);   Reynolds v. Richmond Sheriff, 574 F.Supp. 90, 91 (E.D.Va., 1983);

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