Lewis v. State

• Decision Date: 17 July 2001
• Docket Number: Docket No. 114241, Calendar No. 2.
• Citation: 629 N.W.2d 868,464 Mich. 781
• Parties: Barry A. LEWIS, Plaintiff-Appellant, v. STATE of Michigan, Defendant-Appellee.
• Court: Michigan Supreme Court

629 N.W.2d 868

464 Mich. 781

Barry A. LEWIS, Plaintiff-Appellant, v.STATE of Michigan, Defendant-Appellee.

Docket No. 114241, Calendar No. 2.

Supreme Court of Michigan.

Argued November 14, 2000.

Decided July 17, 2001.

Fett & Linderman, P.C., (by James K. Fett and Marla A. Linderman), Pinckney, for the plaintiff-appellant.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Katherine C. Galvin, Assistant Attorney General, Lansing, for the defendant-appellee.

TAYLOR, J.

This case presents the question whether a judicially inferred private cause of action should be recognized against the state for violation of Const. 1963, art. 1, § 2, the Equal Protection Clause of the Michigan Constitution.We conclude that we should not recognize such a cause of action because the plain language of this constitutional provision leaves its implementation to the Legislature.Thus, we affirm the judgment of the Court of Appeals, although we clarify the appropriate rationale for resolving this case.

I.Underlying Facts and Procedural History

Plaintiff, a white male, became a trooper with the Michigan State Police in 1973.The State Police did not promote plaintiff to the position of sergeant.

Plaintiff alleges that the State Police discriminated against him on the basis of race and sex in violation of the Michigan Constitution,Const. 1963, art. 1, § 2, by using affirmative action policies in connection with promotional decisions.Specifically, plaintiff Attacks the "augmentation" policy used by the State Police until June 27, 1994.Under the augmentation policy, the State Police would, in certain circumstances, give preferential treatment to minority and female candidates in connection with eligibility for promotions.¹In addition, plaintiff alleged that the State Police gave favorable consideration to female and minority status in selecting individuals for promotion to sergeant even apart from the augmentation policy.Indeed, Michigan State Police ColonelMichael Robinson acknowledged in deposition testimony that race and gender were considered with a "multitude of [other] factors" in filling vacant positions.The affirmative action plans of the State Police were approved by the Michigan Civil Rights Commission.

In pertinent part, plaintiff brought this case to seek money damages from the state for violation of his right under the Michigan Constitution to be free of race and sex discrimination by the state.The trial court eventually ruled in favor of plaintiff on his claim for money damages for violation of the Michigan Constitution, awarding damages of over $300,000.The Court of Appeals peremptorily reversed the trial court on the basis of its earlier decision in Cremonte v. Michigan State Police,232 Mich.App. 240, 591 N.W.2d 261(1999).Like the present case, Cremonte involved a claim for money damages against the state for discrimination in violation of Const. 1963, art. 1, § 2 because of affirmative action policies followed by the State Police.The Court of Appeals in Cremonte held that that case was not an appropriate one in which to infer such a damage remedy.Cremonte, supra at 252, 591 N.W.2d 261.

II.Analysis

A. Cremonte

The Court of Appealspanel in this case simply relied on Cremonte in reversing the award of money damages in favor of plaintiff.Cremonte involved facts that are virtually identical to those of the present case.The plaintiff was also a white male trooper who had not been promoted by the State Police for a number of years.Id. at 242, 591 N.W.2d 261.In pertinent part, the plaintiff argued that affirmative action policies used by the State Police constituted race and sex discrimination in violation of Const. 1963, art. 1, § 2.Cremonte, supra at 243, 591 N.W.2d 261.Although the lower court in Cremonte held in favor of the plaintiff and awarded money damages, the Court of Appeals reversed and held that the facts of Cremonte did not support imposition of a judicially inferred damage remedy for violation of Const. 1963, art. 1, § 2:

The last line of [Const. 1963, art. 1, § 2] certainly weighs against an inferred damage remedy.Indeed, that sentence alone could be viewed as dispositive of this issue.SeeSmith [v. Dep't of Public Health, 428 Mich. 540, 632, 410 N.W.2d 749(1987)(Brickley, J.).]In addition, the availability of a remedy under the Civil Rights Act obviates any need for an inferred damage remedy in age, race, or gender discrimination cases, or in retaliation cases.Here, plaintiff could, and did, file a Civil Rights Act action against defendant.Thus, we have no trouble concluding that this was not an appropriate case in which to infer a damage remedy.[Cremonte, supra at 252, 591 N.W.2d 261.]

As we will discuss below, we agree that the language of the last sentence of Const. 1963, art. 1, § 2 weighs against recognition of a judicially adopted damages remedy for violation of that constitutional provision.Accordingly, we conclude today that this portion of Const. 1963, art. 1, § 2, commonly referred to as the state Equal Protection Clause, precludes us from adopting such a judicially crafted remedy.Thus, we agree with the result in Cremonte.

However, we disagree with the reliance by the Court of Appeals in Cremonte on the potential availability of a remedy under the state Civil Rights Act,M.C.L. § 37.2101 et seq.As an initial matter, we note that there is no such remedy, because the "safe harbor" provision of the Civil Rights Act,M.C.L. § 37.2210,² gives immunity from liability under the Civil Rights Act to an entity carrying out such an affirmative action plan if it has been approved by the Civil Rights Commission.SeeSharp v. City of Lansing,464 Mich. 873, 629 N.W.2d 873(2001).The affirmative action plan challenged by plaintiff here was undertaken pursuant to such an approval, and, as a result, there could never be a remedy under the state Civil Rights Act.Thus, this unattainable remedy should not be a part of the justification for precluding a plaintiff from an inferred damages remedy under Const. 1963, art. 1, § 2.More importantly, as will be explained below, the existence or lack of an available remedy is irrelevant in this context, because the constitutional provision at issue expressly assigns the responsibility of implementation to the Legislature.

B.Dedication of Implementation of Const. 1963, art. 1, § 2 to Legislature

In Smith v. Dep't of Public Health, supra, this Court considered arguments that it should judicially recognize causes of action against the state for violation of the Michigan Constitution.Smith involved two consolidated cases with differing allegations of state constitutional violations.The only majority opinion in Smith was a brief memorandum opinion summarizing the holdings on which at least four justices agreed.In pertinent part, Smith 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."Id. at 544, 410 N.W.2d 749.This brief majority opinion did not define what constitutes an "appropriate" case for recognizing such a cause of action for violation of the Michigan Constitution.Regardless of whether an "appropriate" case may be conceived, we conclude that it is inappropriate to infer a damages remedy for violation of Const. 1963, art. 1, § 2.

The reason it is inappropriate to infer such a damages remedy, simply stated, is the language of Const. 1963, art. 1, § 2:

No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin.The legislature shall implement this section by appropriate legislation.[Emphasis added.]

On its face, the implementation power of Const. 1963, art. 1, § 2 is given to the Legislature.Because of this, for this Court to implement Const. 1963, art. 1, § 2 by allowing, for example, money damages, would be to arrogate this power given expressly to the Legislature to this Court.Under no recognizable theory of disciplined jurisprudence do we have such power.

Moreover, our conclusion that the language of Const. 1963, art. 1, § 2 does not allow us to judicially create a money damages remedy for a violation of this constitutional provision is consistent with the view expressed by Justice Brickley, joined by Justice Riley, in Smith:

[T]hose sections of the 1963Constitution, comparable to the provisions of the 1908Constitution under which plaintiff sued, indicate that we should defer to the Legislature the question whether to create a damages remedy for violations of a plaintiff's rights to due process³ or equal protection.For example, the Equal Protection Clause of the 1963Constitution(art. 1, § 2) leaves its implementation to the Legislature.[Id. at 631-632, 410 N.W.2d 749).]⁴

Furthermore, it is the pattern of the Michigan Constitution with regard to the protection of civil rights to provide the Legislature with authority to create remedial measures.This can be seen in the provision of the Michigan Constitution that creates the Civil Rights Commission(Const. 1963, art. 5, § 29⁵) where the drafters, after creating the Civil Rights Commission, then indicated that its investigations and efforts to secure equal protection of civil rights "may be prescribed by law," i.e., prescribed by the Legislature.The instant civil rights provision also follows that approach and, thus, reinforces our confidence that the drafters consistently intended that these rights, which were coming to flower in the early 1960's, were to be implemented after legislative consideration of the most appropriate remedies.

Finally, our holding should not be construed as a demurral to the traditional judicial power to invalidate legislation or other positive governmental action that directly violates the equal protection...