Ewing v. Board of Regents of University of Michigan

• Decision Date: 15 December 1982
• Docket Number: Civ. A. No. 82-60271.
• Citation: 552 F. Supp. 881
• Parties: Scott E. EWING, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant.
• Court: U.S. District Court — Western District of Michigan

552 F. Supp. 881

Scott E. EWING, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant.

Civ. A. No. 82-60271.

United States District Court, E.D. Michigan, S.D.

December 15, 1982.

Michael M. Conway, Mary K. Butler, Hopkins & Sutter, Harry Schulman, Schulman & Bell Ltd., Chicago, Ill., Timothy Fryhoff, Buesser, Buesser, Snyder & Blank, Bloomfield Hills, Mich., for plaintiff.

Peter Davis, Davis & Fajen, Ann Arbor, Mich., for defendant.

MEMORANDUM OPINION

JOHN FEIKENS, Chief Judge.

Scott Ewing ("Ewing") challenges his dismissal from the University of Michigan Medical School. In his complaint, Ewing alleges that he was wrongfully dismissed in violation of his constitutional and contractual rights. He is seeking both injunctive relief and damages from the University of Michigan's Board of Regents ("the Board").

Defendant has moved to dismiss Count III of Ewing's complaint, which asks for monetary damages pursuant to 42 U.S.C. § 1983.¹ It urges: that the Board is immune from suit for monetary damages because of the Eleventh Amendment to the Constitution; and that the Board is not a "person" within the meaning of 42 U.S.C. § 1983. With regard to Eleventh Amendment immunity, Ewing counters that the Board is not a sovereign state entity within the meaning of the Eleventh Amendment, or, alternatively, that the Board has waived any Eleventh Amendment immunity it might have had. Ewing also maintains the Board is a "person" under § 1983. For the reasons stated herein, I grant defendant's motion to dismiss Count III of the complaint.

I.

In the absence of waiver, the Eleventh Amendment protects states from money judgments. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945).

The Eleventh Amendment provides:

The 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.

Judicial interpretations have held the Amendment applicable to suits brought by a citizen against his own state. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1973); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The Amendment has also been interpreted to protect state instrumentalities and agencies from suit. Edelman v. Jordan, supra; City of Detroit, et al. v. State of Michigan, 543 F.Supp. 220 (E.D.Mich. 1982). Thus, if the University of Michigan is a state agency or instrumentality, it is entitled to claim immunity with respect to Count III of Ewing's complaint, provided it has not waived its right to do so.²

Whether a university is a state instrumentality under the Eleventh Amendment must be determined by considering the particular characteristics of the institution in question. Long v. Richardson, 525 F.2d 74 (6th Cir.1975); Soni v. Board of Trustees of University of Tennessee, 513 F.2d 347 (6th Cir.1975).³ State court decisions may be given considerable weight in making this determination. Long v. Richardson, supra. Although the United States Court of Appeals for the Sixth Circuit has not yet ruled with respect to the University of Michigan, two judges of this District, relying in part upon Michigan case authority, have held that the University is a state instrumentality entitled to Eleventh Amendment immunity.⁴ I agree with their conclusions.

The Board of Regents is at least colorably a state instrumentality by virtue of its constitutional mandate to supervise the University and manage its funds. Mich. Const. Art. 8 § 5. Although granted much independence in how it conducts university affairs, the Board is still subject to state audit, and must hold its formal meetings publicly. Mich. Const. Art. 8 § 4. The eight members of the Board are publicly elected officials. Art. 8 § 5. In analyzing the nature of the Board, Michigan courts have routinely held that it is "a department of the State government created by the Constitution to perform State functions." Attorney General v. Burhans, 304 Mich. 108, 111, 7 N.W.2d 370 (1942), cited in Marwil v. Board of Regents, et al., Civil Action No. 79-73331 (E.D.Mich., July 3, 1980).

Apart from its constitutional origins, the University has another claim to being the "alter ego" of the state: it is fiscally tied to it. The Michigan Supreme Court has stated: "The property held by the Regents in their corporate capacity is the public property of the State held by the corporation in trust for the purposes to which it was devoted." Auditor General v. Regents, 83 Mich. 467, 469-470 (1890); see also Lucking v. People, 320 Mich. 495, 31 N.W.2d 707 (1948). Therefore, if a judgment diminishes the resources of the University, it immediately diminishes the resources of the State, which has an interest in the property.⁵ Furthermore, Art. 8 § 4 of the Michigan Constitution provides, inter alia: "The legislature shall appropriate money to maintain the University of Michigan ... and the legislature shall be given an annual accounting of all income and expenditures by the University." Thus, the legislature has some responsibility for insuring the continued financial sustenance of the institution.⁶

Because the Board has been recognized as an independent branch of state government by the Michigan courts, and because the state is obligated to see that it has sufficient funds to survive, I hold that it is a state instrumentality within the meaning of the Eleventh Amendment.

II.

Ewing argues that even if the University is a state instrumentality within the meaning of the Eleventh Amendment, it has waived its sovereign immunity. I do not agree. The standard I am guided by in evaluating Ewing's contention of waiver was stated by the Supreme Court in Edelman v. Jordan, supra: "In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated `by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.' Citation omitted." Id. 415 U.S. at 673, 94 S.Ct. at 1360-61.

Since Edelman, the Sixth Circuit has considered the question of whether Eleventh Amendment immunity has been waived by a state university sued under § 1983. In Soni v. Board of Trustees of the University of Tennessee, supra, the court held a statutory provision providing that the University of Tennessee could sue and be sued "in any court of law or equity" was a waiver of governmental immunity. Ewing would have me hold that an analogous clause which covers the University of Michigan and provides: "The board of regents shall constitute the body corporate, with the right as such of suing and being sued, of making and using a common seal, and altering the same" (§ 390.4) should be similarly construed. This interpretation is belied by two later Sixth Circuit cases. The "sue and be sued" clause at issue in Martin v. University of Louisville, 541 F.2d 1171 (6th Cir.1976), provided that the university had the power to "sue and be sued, complain and defend, in its corporate name." Id. at 1174, citing Kentucky Revised Statutes, Section 273.172(2). Distinguishing Soni v. Board of Trustees, supra, the court held in Martin that a state's consent to suit in its own courts "does not necessarily imply its consent to suit in federal court." Id. at 1175. Unlike the "sue and be sued" statute in Soni, the statute in Martin did not provide for suit in "any court of law or equity"; therefore, no waiver of immunity in the federal courts was found. See also Long v. Richardson, 525 F.2d 74 (6th Cir. 1975). M.C.L.A. § 390.4 also lacks language providing for suit "in any court of law of equity." I cannot, therefore, find in M.C.L.A. § 390.4 the type of clearly expressed waiver of immunity in the federal courts that the Supreme Court and the Sixth Circuit have indicated must be present before waiver is established.

Ewing offers other arguments to support his position that the University has waived Eleventh Amendment immunity, but I find them similarly unconvincing. Ewing suggests that M.C.L.A. § 600.6440, part of Michigan's Court of Claims Act, must be read to establish waiver in the federal courts. Under M.C.L.A. § 600.6419, the Court of Claims is established in Michigan as having exclusive jurisdiction over all claims against the state which are not excepted by § 600.6440. Section 600.6440 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 ...." (Emphasis added).

Admitting the possibility that some causes of action might appropriately be brought in federal court against the state is not the same as a general waiver of immunity from suit in the federal courts. As Judge Pratt observed in Marwil v. Board of Regents, supra, "The Michigan legislature merely determined that where appropriate, an exhaustion of federal court remedies would be required." Id. at 10. It is completely consistent with the Act to acknowledge a distinction between types of federal suit for which the state has waived immunity, and those for which it has not. The statute dictates an order of procedure only with respect to those cases for which federal amenability to suit has already been established.⁷See also Copper S.S. Co. v. State of Michigan, 194 F.2d 465 (6th Cir. 1952). Where no independent source of immunity is present, the plaintiff will not be allowed to bootstrap a waiver because of the Court of Claims Act.

Ewing's argument that the University's purchase of liability insurance is waiver of immunity is also unavailing. Merely purchasing such insurance does not constitute the type of knowing and clearly expressed waiver necessary to eliminate Eleventh Amendment immunity. Branum v. Board of Regents of University of...