Lash v. Traverse City

Citation720 N.W.2d 760,271 Mich. App. 207
Decision Date01 June 2006
Docket NumberDocket No. 263873.
PartiesJoseph LASH, Plaintiff-Appellant, v. CITY OF TRAVERSE CITY, Defendant-Appellee.
CourtCourt of Appeal of Michigan (US)

Law Office of Glen N. Lenhoff (by Glen N. Lenhoff and Robert D. Kent-Bryant) Flint, for the plaintiff.

Plunket & Cooney, P.C. (by Mary Massaron Ross, Kristen M. Tolan, and Gretchen L. Olsen), Detroit, for the defendant.

Amicus Curiae: Alonzi, Porter & Associates, PLLC (by Mark A. Porter), Pontiac, for the Michigan Lodge of the Fraternal Order of Police.

Before: ZAHRA, P.J., and MURPHY and NEFF, JJ.

NEFF, J.

Plaintiff appeals as of right an order of the trial court granting defendant's motion for summary disposition on the basis that defendant's residency requirement for employment was consistent with statutory restrictions under MCL 15.602. We affirm in part, reverse in part, and remand.

I

This case presents two issues of statutory interpretation concerning MCL 15.602, which restricts governmental entities from imposing residency requirements as a condition of employment or promotion. We must first decide whether MCL 15.602 permits a private cause of action to enforce the act's provisions and, second, whether the act's exception for a 20-mile or greater distance requirement under certain circumstances is measured in "road miles" or "air miles."1

We conclude that a private cause of action for enforcement of the restrictions on governmental entities is implicit in MCL 15.602. Contrary to my colleagues, I also conclude for the reasons discussed in part V of this opinion that the reference to a distance of "20 miles" in MCL 15.602(2) may be measured by "road miles." I would hold that defendant's restriction requiring plaintiff to live within "twenty (20) road miles" of the nearest boundary of Traverse City is consistent with MCL 15.602(2). Accordingly, I would find that the trial court properly granted defendant's motion for summary disposition.

II

Plaintiff, a police officer in Flint, applied for a position as a police officer with the Traverse City Police Department. After partially completing the application process and receiving a conditional offer of employment, plaintiff was informed that his anticipated residence in Thompsonville did not meet defendant's 20-road-mile residency requirement for employment and therefore he would not be hired by defendant.

According to plaintiff's complaint, upon being notified in December 2002 that he was likely to obtain a position in Traverse City, he began looking for property to build a home in the area. Plaintiff found suitable property in Thompsonville, confirmed that the property was within 20 miles of the city limits of Traverse City,2 and purchased the property in January 2003.

Plaintiff alleged that on March 17, 2004, defendant's police chief offered plaintiff a police officer position, conditioned on plaintiff passing a physical examination, a psychological examination, and a physical endurance test. However, on March 22, 2004, plaintiff was advised that the offer of a position was rescinded because his future home was "23 `road miles'" from the city limits.

Plaintiff filed this action alleging an "unlawful failure to hire" claim based on MCL 15.601 et seq. Plaintiff sought damages for mileage expenses, continuing private school expenses for his children, purchase and repairs of the Thompsonville property, wages for a lost job promotion for his wife, refinancing expenses for his Flint home, and sale expenses for the Thompsonville property. Defendant moved for summary disposition on the grounds that plaintiff had no private cause of action for damages under MCL 15.601 et seq., that defendant's residency requirement was consistent with permissible requirements in MCL 15.602, and that plaintiff suffered no damages because he had not completed the hiring process by meeting the conditions for employment, he continued to work for the city of Flint at $9.00 more an hour than he would have earned if hired by defendant, and his Thompsonville property had appreciated in value since plaintiff's purchase.

The trial court granted defendant's motion for summary disposition. The court concluded that although plaintiff had a private cause of action under MCL 15.601 et seq., defendant's residency requirement was consistent with MCL 15.602(2), which the court interpreted to permit distance measurement in "road miles."

III

A decision regarding summary disposition under MCR 2.116(C)(8) is reviewed de novo. Beaudrie v. Henderson, 465 Mich. 124, 129, 631 N.W.2d 308 (2001). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a complaint and is based on the pleadings alone. Long v. Chelsea Community Hosp., 219 Mich.App. 578, 581, 557 N.W.2d 157 (1996). The motion should be granted only if no factual development could justify recovery. Beaudrie, supra at 130, 631 N.W.2d 308.

Whether a statute provides a private cause of action is a question of statutory interpretation. Pitsch v. ESE Michigan, Inc., 233 Mich.App. 578, 586, 593 N.W.2d 565 (1999); Long, supra at 581, 557 N.W.2d 157. Questions of statutory interpretation are questions of law, which we review de novo. Id. at 581-582, 557 N.W.2d 157.

The primary objective of judicial interpretation of a statute is to ascertain and give effect to the intent of the Legislature. Herald Wholesale, Inc. v. Dep't of Treasury, 262 Mich.App. 688, 693, 687 N.W.2d 172 (2004). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Draprop Corp. v. Ann Arbor, 247 Mich.App. 410, 415, 636 N.W.2d 787 (2001). "The first step in discerning the intent of the Legislature is to consider the language of the statute. The language must be read according to its ordinary and generally accepted meaning." Cherry Growers, Inc. v. Agricultural Marketing & Bargaining Bd., 240 Mich.App. 153, 166, 610 N.W.2d 613 (2000) (citations omitted). If the language of the statute is clear and unambiguous, judicial construction is neither necessary nor permitted. Nastal v. Henderson & Assoc. Investigations, Inc., 471 Mich. 712, 720, 691 N.W.2d 1 (2005); Cherry Growers, supra at 166, 610 N.W.2d 613. "If reasonable minds can differ with regard to the meaning of a statute, judicial construction is appropriate.... The court should apply a reasonable construction to best accomplish the Legislature's purpose." Id. (citation omitted). In doing so, the court may consider a variety of factors, applying principles of statutory construction and common sense. Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994).

IV

We first consider whether plaintiff is entitled to maintain a private cause of action for damages under MCL 15.601 et seq. If no cause of action exists under the statute, then plaintiff has failed to state a claim for which relief may be granted, and summary disposition is proper on that basis alone. Long, supra at 581, 557 N.W.2d 157. If plaintiff is entitled to maintain a private cause of action, we must then consider whether defendant's residency requirement comports with the statute.

In 1999, the Legislature enacted Public Act 212, MCL 15.601 et seq., which placed restrictions on residency requirements imposed by governmental entities on public employees. The act consists of three brief sections: § 1, MCL 15.601, containing definitions of "public employer" and "school district"; § 2, MCL 15.602, specifying the restrictions and several exceptions; and § 3, MCL 15.603, limiting the act's application to employment contracts entered into, renewed, or renegotiated after the effective date of the act. The act provides no express remedy for violations of the restrictions imposed.

Plaintiff argues that a private cause of action may be inferred from the statute because no means of enforcement otherwise exists. Defendant argues that the statutory scheme neither requires nor suggests a private action for money damages, and that, under the general court rules,3 declaratory judgment procedures or requests for injunctive relief or mandamus may be used to effectuate the statutory restrictions should the need arise. Because the statute provides no means of enforcement, and because we find no basis for inferring a private cause of action limited to equitable relief, we conclude that plaintiff has a cause of action for money damages.

The general rule for inferring rights of action under state law is that if a new right is created or a new duty is imposed by statute, the statutory remedy provided for enforcement of that right or duty is exclusive unless the remedy is plainly inadequate or a contrary intent clearly appears. Pompey v. Gen. Motors Corp., 385 Mich. 537, 552 & n. 14, 189 N.W.2d 243 (1971). Our courts have subsequently reiterated the general rule in analyzing whether a plaintiff has a private right of action:

If the common law provides no right to relief, and the right to such relief is instead provided by statute, then plaintiffs have no private cause of action for enforcement of the right unless: (1) the statute expressly creates a private cause of action or (2) a cause of action can be inferred from the fact that the statute provides no adequate means of enforcement of its provisions. [Long, supra at 583, 557 N.W.2d 157 (emphasis in original), citing Bell v. League Life Ins. Co., 149 Mich.App. 481, 482-483, 387 N.W.2d 154 (1986); see also Pitsch, supra at 586-587, 593 N.W.2d 565.]

Accordingly, a court must dismiss a private cause of action under a statute creating a new right unless the statute expressly created the private cause of action or the cause of action may be inferred because the statute provides no adequate means to enforce its provisions. Forster v. Delton School Dist., 176 Mich.App. 582, 585, 440 N.W.2d 421 (1989).

It is undisputed that no common-law right to relief...

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