Mack v. City of Detroit

• Decision Date: 19 November 2002
• Docket Number: Docket No. 118468, COA No. 214448.
• Citation: 467 Mich. 1211,654 N.W.2d 563
• Parties: Linda MACK, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant.
• Court: Michigan Supreme Court

654 N.W.2d 563

467 Mich. 1211

Linda MACK, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant.

Docket No. 118468, COA No. 214448.

Supreme Court of Michigan.

November 19, 2002.

In this cause a motion for rehearing is considered and it is DENIED.

CORRIGAN, C.J., concurring.

I concur in the order denying plaintiff's motion for rehearing. I write separately to address Justice CAVANAGH'S comparison of this case to my concurring statement in Haji v. Prevention Ins. Agency, Inc., 196 Mich.App. 84, 88-90, 492 N.W.2d 460 (1992). The concerns surrounding the questionable procedure that the trial court employed in Haji are not present here.

In Haji, on the date set for trial, the trial court sua sponte raised issues never previously identified or argued in the pleadings or in the defendants' motion for summary disposition. Id. at 85-86, 88, 492 N.W.2d 460. The court invited argument on the issues at that time, with no opportunity whatsoever for preparation. The court then granted summary disposition for the defendants on the issues that the trial court itself had raised. Id. at 85-87, 89, 492 N.W.2d 460.¹ In my concurrence, I deemed the trial judge's injection and decision "unjustified." I disagreed with the trial court's procedure because the plaintiff was sandbagged by the court. He had no advance notice, opportunity to prepare, or respond. Id. at 90, 492 N.W.2d 460.

Unlike Haji, this Court decided the very issue presented, i.e, whether the city of Detroit's charter provided plaintiff a private cause of action against the city on the basis of sexual orientation discrimination. Our research led to the conclusion that, regardless of whether the charter attempted to create such a cause of action, the governmental tort liability act (GTLA), M.C.L. § 691.1407, precluded the cause of action.

This Court did not inject a novel issue. We addressed the issue raised on appeal and reached a conclusion on the basis of thorough legal research. While members of this Court addressed the potential impact of the GTLA on this case at oral argument, we are not obligated to provide parties with advance notice of our decision before issuing an opinion. We were not required to advise plaintiff that the GTLA precluded her alleged cause of action and to afford her another opportunity to present argument. Such an unprecedented procedure would hinder our ability to decide cases promptly. It would add another step to the appellate process by giving parties yet another "bite at the apple."

Moreover, this Court is not constrained to simply adopt the reasoning advanced by one of the parties. If our research leads to a different line of reasoning that correctly resolves the issues presented, we are not obliged to reject the correct view merely because neither party has proposed it. As long as we address the particular issue presented, the theories that our research uncovers in an attempt to decide the issue are properly before this Court. YOUNG, J., concurring.

I concur with the denial of plaintiff's motion for rehearing. I write separately to address the concerns raised by Justice CAVANAGH in his dissenting statement.

In our opinion, 467 Mich. 186, 649 N.W.2d 47 (2002), plaintiff lost part of her appeal because there is no cause of action against a governmental entity for discrimination based on sexual orientation. Justice CAVANAGH'S due process arguments fail to consider that if we remanded plaintiff's sexual orientation discrimination claim, no possible amendment would have been successful because the underlying right she sought to vindicate could not be secured under state law. Thus, a remand on that claim would have caused her to engage in a futile exercise.²

That the plaintiff has no cause of action for sexual orientation discrimination is the fundamental fact that distinguishes this case from the case Justice CAVANAGH relies on for his due process criticism, Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930). Brinkerhoff stands for the proposition that a court cannot change a procedural rule so as to deprive a plaintiff of an otherwise valid cause of action without offending due process. However, this due process principle presupposes that the plaintiff has a valid claim. Here, plaintiff has no valid claim for sexual orientation discrimination. Thus, the predicate for Brinkerhoff to apply, that the plaintiff have a valid cause of action that a retroactive change in procedural law now makes impossible to bring, is missing. Accordingly, Brinkerhoff is not germane to the situation before us in Mack.

Justice CAVANAGH also objects to the Court advancing legal theories not raised by the parties. I am mindful of the important role the adversarial process plays in our judicial system, particularly regarding the identification of disputed issues. Yet, the adversarial process aids a court's legal resolution, it does not dictate it. Where the adversarial process fails to provide valuable assistance, a court's duty to correctly expound the law is not excused. Our case law clearly points this out:

It is well established that a court is not bound by the parties' stipulations of law. See, e.g., Rice v. Ruddiman, 10 Mich. 125, 138 (1862), and Bradway v. Miller, 200 Mich. 648, 655, 167 N.W. 15 (1918). It is within the inherent power of a court, as the judicial body, to determine the applicable law in each case. To hold otherwise could lead to absurd results; for example, parties could force a court to apply laws that were in direct contravention to the laws of this state. It would also allow the parties to stipulate to laws that were obsolete, overruled, or unconstitutional. On the appellate level, this would result in a tremendous waste of judicial resources, since such case law would have no precedential value. [In re Finlay Estate, 430 Mich. 590, 595-596, 424 N.W.2d 272 (1988) ].³

Just as parties cannot place the law beyond the reach of the Court by stipulation, they cannot avoid the application of controlling law by failing to address it. Simply put, the issue of preemption by state law was squarely before this Court in Mack and the specific preemptive effect of governmental immunity was raised by the Court at oral argument. However, plaintiff failed adequately to explain to this Court why the governmental tort liability act did not prohibit the city's alleged creation of a cause of action for sexual orientation discrimination at either oral argument or, more tellingly, even in plaintiff's motion for rehearing. Plaintiff's adversarial shortcomings do not prevent this Court from following the law.

Further, I wish to point out how unusual is Justice CAVANAGH'S assertion that our sua sponte raising and deciding the McCummings v. Hurley Medical Ctr., 433 Mich. 404, 446 N.W.2d 114 (1989), issue somehow runs afoul of some established "rule." If such a "rule" exists, it certainly is not one that the United States Supreme Court observes. I simply note by way of example that the United States Supreme Court has sua sponte raised and decided issues neither raised nor briefed by the parties on many occasions and in some of the most important cases it has decided. See, for example, Erie R Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In fact, that Court recently addressed an issue that was not briefed by the parties and was raised only indirectly at oral argument by the Court, notwithstanding a dissent critical of the Court's doing so. See Kolstad v. American Dental Ass'n, 527 U.S. 526, 540, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) (citing cases where the Court had previously done so, Justice O'Connor wrote for the majority that "[t]he Court has not always confined itself to the set of issues addressed by the parties"). Likewise, this entire Court recently decided an issue not raised or briefed by the parties. See Federated Publications, Inc. v. Lansing, 467 Mich. 98, 649 N.W.2d 383 (2002). As suggested above, the highest court's duty is to the law itself, not fidelity to the parties' vision (or lack thereof) of the law.

Justice CAVANAGH'S assertion that this Court deprived plaintiff of a due process right by finding that she was required to plead in avoidance of governmental immunity ignores the precedent set by this Court. A point we did not make in Mack, but could have, is that a review of Michigan law before Mack would hardly suggest that plaintiff need not plead in avoidance of governmental immunity. As stated in Mack, the McCummings holding was an aberration in Michigan and largely ignored by Michigan courts after it was decided. Opinions from this Court post-McCummings support this conclusion and refute any contention that governmental immunity was established solely as an affirmative defense. This truth is evident, in part, because the Mack decision was foreshadowed in several recent cases that all stated that a plaintiff must plead in avoidance of governmental immunity. See Hanson v. Board of Co. Rd. Comm'rs of County of Mecosta, 465 Mich. 492, 499, 638 N.W.2d 396 (2002) ("A plaintiff making a claim of inadequate signage, like a plaintiff making a claim of inadequate street lighting or vegetation obstruction, fails to plead in avoidance of governmental immunity.") (quoting Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 183, 615 N.W.2d 702 (2000)); (Haliw v. Sterling Heights, 464 Mich. 297, 304, 627 N.W.2d 581 [2001]) ("First, it must be determined whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity."). In fact, although he criticizes the fact that we overruled McCummings in Mack, Justice CAVANAGH himself subscribed to the Mack postulate post-McCummings:

The governmental tort liability act, M.C.L. § 691.1407; MSA 3.996(107), waives the state's immunity from liability in certain limited areas. However, in order to successfully bring suit against an agency of the...