LM v. State

CourtCourt of Appeal of Michigan (US)
Citation307 Mich.App. 685,862 N.W.2d 246
Docket NumberDocket Nos. 317071,317073.,317072
Decision Date06 November 2014

Kary L. Moss, Detroit, Michael J. Steinberg, Mark P. Fancher, Detroit, Shana E. Schoem, Mark D. Rosenbaum, and David B. Sapp, Nacht, Roumel, Salvatore, Blanchard & Walker, PC (by Jennifer B. Salvatore, Edward Alan Macey, and Nakisha N. Chaney, Ann Arbor), and Wilson Sonsini Goodrich & Rosati, PC (by Steven D. Guggenheim, Joni Ostler, and Doru Gavril), for plaintiffs.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Darrin F. Fowler and Katherine Bennett, Assistant Attorneys General, for the state of Michigan, the State Board of Education, the Michigan Department of Education, and the Superintendent of Public Instruction.

Kienbaum Opperwall Hardy & Pelton, PLC, Birmingham, (by Noel D. Massie and Eric J. Pelton ) for the Highland Park School District and the Highland Park School District Emergency Manager.

Before: MURRAY, P.J., and JANSEN and SHAPIRO, JJ.



In Docket No. 317071, defendants state of Michigan, State Board of Education, Michigan Department of Education, and state Superintendent of Public Instruction (hereinafter the state defendants) appeal by right the denial of their motion for summary disposition, which was based on governmental immunity. In Docket No. 317072, the state defendants appeal by leave granted the same order, denying in part the remainder of their motion for summary disposition. In Docket No. 317073, defendants Highland Park School District and Highland Park School District Emergency Manager (hereinafter “the district defendants) appeal by leave granted that same order, denying in part their motion for summary disposition and an amended scheduling order. We reverse and remand for entry of judgment in favor of the state and district defendants.

This litigation arises from a complaint filed by the American Civil Liberties Union (“ACLU”) on behalf of eight minor plaintiffs, who are students in Highland Park, asserting plaintiffs received inadequate and deficient instruction from the Highland Park public schools. According to plaintiffs, this inadequate and deficient instruction has resulted in their failure to obtain basic literacy skills and reading proficiency as required by the state. Specifically, plaintiffs sought special assistance in accordance with MCL 380.1278(8), premised on their demonstrated lack of proficiency on the reading portion of the standardized Michigan Educational Assessment Program (“MEAP”) test.

The state defendants argue that the trial court erred by denying their motion for summary disposition based on governmental immunity. We review de novo the trial court's grant or denial of summary disposition. Wilson v. King, 298 Mich.App. 378, 381, 827 N.W.2d 203 (2012).

The state defendants assert that they were entitled to immunity premised on MCL 141.1572,1 which states:

This act does not impose any liability or responsibility in law or equity upon this state, any department, agency, or other entity of this state, or any officer or employee of this state, or any member of a receivership transition advisory board, for any action taken by any local government under this act, for any violation of the provisions of this act by any local government, or for any failure to comply with the provisions of this act by any local government. A cause of action against this state or any department, agency, or entity of this state, or any officer or employee of this state acting in his or her official capacity, or any membership of a receivership transition advisory board acting in his or her official capacity, may not be maintained for any activity authorized by this act, or for the act of a local government filing under chapter 9, including any proceeding following a local government's filing.
Specifically, the state defendants argue that this statutory provision, part of the Local Financial Stability and Choice Act, MCL 141.1541 et seq., is applicable because plaintiffs' claims are premised on the state's liability through appointment of an emergency manager for the Highland Park schools. We note that the immunity provision contained in MCL 141.1572 is, in accordance with MCL 141.1544(6), applicable to any acts or failures occurring under any predecessor emergency manager laws as well.

In support of their assertion, the state defendants cite three paragraphs of plaintiffs' amended complaint, which consists of 125 separate, numbered paragraphs of allegations. Plaintiffs' original and amended complaints assert state responsibility for the failure to provide a bare or minimal level of education as allegedly mandated by Article 8 of the Michigan Constitution and adequate remedial services as delineated in MCL 380.1278(8). While plaintiffs allege that the state and district defendants have attempted to delegate responsibility for the provision of educational services to the district defendants through the operation of charter schools, plaintiffs do not suggest that establishment of an emergency manager is the basis for the litigation. Rather, plaintiffs repeatedly assert several diverse bases for liability of the state defendants, including Const. 1963, art. 8, §§ 1, 2, and 3 ; MCL 380.1278(8) ; MCL 16.400 et seq.; and MCL 388.1009 et seq. They have denied that their complaint arises from or is dependent upon the imposition of an emergency manager for the school district. Plaintiffs' allegations indicate the existence of the alleged educational and service deficiencies long before the imposition of the emergency manager.

The trial court was partially correct in its denial of summary disposition premised on immunity under MCL 141.1572. The stated purpose of the Local Financial Stability and Choice Act is “to safeguard and assure the financial accountability of local units of government and school districts....” 2012 PA 436, title. Given the financial purpose of the act, it is difficult to sustain the state defendants' contention that it is applicable to all actions undertaken by an emergency manager or those entities associated with him or her, involving the violation of any other statutory provisions not specifically encompassed within the act, such as MCL 380.1278(8). At the outset, MCL 141.1572 specifically limits imposition of liability “for any action taken by any local government under this act, for any violation of the provisions of this act by any local government, or for any failure to comply with the provisions of this act by any local government.” (Emphasis added.) While an emergency manager is authorized by MCL 141.1551(1)(e) to include in a “financial and operating plan” “an educational plan” for school districts, MCL 141.1554 suggests that the role is financial in nature, encompassing the negotiation of contracts, disbursement of funds, reductions in class schedules, closing of schools, and related actions.

In Tellin v. Forsyth Twp., 291 Mich.App. 692, 700–701, 806 N.W.2d 359 (2011), this Court recognized:

A court must give effect to the Legislature's intent when construing a statute. In determining the Legislature's intent, this Court first looks at the language of the statute itself. This Court gives the words of the statutes their plain and ordinary meaning and will look outside the statutory language only if it is ambiguous. “The Legislature is presumed to be familiar with the rules of statutory construction and, when promulgating new laws, to be aware of the consequences of its use or omission of statutory language....” In determining the plain meaning of the statute, this Court uses the “fair and natural import of the terms employed” and gives effect “to every word, phrase, and clause” as far as possible. [Citations omitted.]

The Legislature's use of the phrases “under this act and “of this act denotes restriction of liability to the specific provisions of the Local Financial Stability and Choice Act and cannot be construed, as suggested by the state defendants, to encompass a completely separate statutory provision, MCL 380.1278(8). Therefore, although any approvals provided by the state and district defendants of an educational plan by and through the appointment of the emergency manager and system defendants may be a proper subject for immunity under MCL 141.1572, claims of constitutional and separate statutory violations are not encompassed.

The question, then, is whether the state defendants are otherwise entitled to governmental immunity. To answer this question, we must first determine whether plaintiffs have stated a cause of action arising directly from the Michigan Constitution or MCL 380.1278(8).

As this Court stated in Co. Road Ass'n of Mich. v. Governor, 287 Mich.App. 95, 121, 782 N.W.2d 784 (2010) :

As a general rule, ‘governmental immunity is not available in a state court action where it is alleged that the state violated a right conferred by the state constitution.’ Jones v. Powell, 227 Mich.App. 662, 673, 577 N.W.2d 130 (1998), aff'd 462 Mich. 329, 612 N.W.2d 423 (2000), quoting Marlin v. Detroit, 177 Mich.App. 108, 114, 441 N.W.2d 45 (1989). See also Smith v. Dep't of Pub. Health, 428 Mich. 540, 544, 410 N.W.2d 749 (1987) (“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.”).

Specifically, [T]he state will be liable for a violation of the state constitution only in cases where a state custom or policy mandated the official's or employee's actions.” Reid v. Michigan, 239 Mich.App. 621, 629, 609 N.W.2d 215 (2000) ; see also Carlton v. Dep't of Corrections, 215 Mich.App. 490, 504–505, 546 N.W.2d 671 (1996). As this Court explained in Burdette v. Michigan, 166 Mich.App. 406, 408–409, 421 N.W.2d 185 (1988), citing Smith, 428 Mich. 540, 410 N.W.2d 749 :


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