Smith v. Department of Public Health, Docket Nos. 71016

CourtSupreme Court of Michigan
Citation428 Mich. 540,410 N.W.2d 749
Docket Number76838,Docket Nos. 71016
PartiesJack SMITH, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC HEALTH, et al., Defendants-Appellants. Ray Eugene WILL, Plaintiff-Appellee Cross-Appellant, v. DEPARTMENT OF CIVIL SERVICE, et al., Defendants, and Department of State Police, et al., Defendants-Appellants Cross-Appellees.
Decision Date12 October 1987

John A. Braden, Muskegon, for Jack Smith.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George L. McCargar, Thomas R. Wheeker, Assistant Attys. Gen., Dept. of Atty. Gen., Mental Health Div., Lansing, for Dept. of Public Health.

Lick, Emery, DeVine & Mallory, P.C. by Lawrence J. Emery, Lansing, for Ray Eugene Will.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George H. Weller, Asst. Atty. Gen., Lansing, for Dept. of State Police.

American Civil Liberties Union Fund of Michigan by William Burnham, Detroit, for The American Civil Liberties Union Fund of Michigan, amicus curiae.


These consolidated cases require us to decide the following questions: (1) whether the state is a "person" for purposes of a damage suit under 42 U.S.C. Sec. 1983; (2) whether a state official, sued in an official capacity, is a "person" for purposes of a damage suit under 42 U.S.C. Sec. 1983; (3) whether there is an "intentional tort" exception to governmental immunity; and (4) whether a plaintiff may sue the state for damages for violations of the Michigan Constitution.

A majority of the Justices are of the opinion that:

1) The state is not a "person" for purposes of a damage suit under Sec. 1983.

2) A state official, when sued in an official capacity, is not a "person" for purposes of a damage suit under Sec. 1983.

3) The allegation of false imprisonment in Smith does not avoid governmental immunity.

4) There is no "intentional tort" exception to governmental immunity.

5) 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.

6) A claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases.

7) In Will, the plaintiff failed to preserve for appeal any claim for damages for violations of the Michigan Constitution.

In Smith, we reverse those portions of the Court of Appeals judgment that reinstated the plaintiff's false imprisonment claim and affirmed the denial of summary judgment on the plaintiff's Sec. 1983 claim. The defendants were entitled to summary judgment as to both claims. We affirm the Court of Appeals affirmance of the denial of summary judgment as to the plaintiff's Michigan constitutional claims, and direct the Court of Claims, on remand, to determine whether a violation of the Michigan Constitution by virtue of a governmental custom or policy has been alleged; whether such a violation occurred; and, if it occurred, whether it is one for which a damage remedy is proper.

In Will, we reverse that portion of the Court of Appeals judgment that remanded this case to the Court of Claims for further proceedings regarding the liability of the Director of State Police, and we remand to the Court of Claims for entry of judgment in favor of the defendant Director of State Police. In all other respects, we affirm the judgment of the Court of Appeals.

This memorandum opinion is signed by the six participating Justices. There are separate concurring and dissenting opinions. However, at least four Justices concur in every holding, statement and disposition of this memorandum opinion.


BRICKLEY, Justice.

These cases require that we decide whether the state and its officials, sued in their official capacities, are "persons" in a suit for damages under 42 U.S.C. Sec. 1983, whether an intentional tort is an exception to governmental immunity, and whether there is an implicit right to sue the state for damages for violations of the Michigan Constitution. We would find that the state and its officials, sued in their official capacities, are not persons under 42 U.S.C. Sec. 1983, that there is no intentional-tort exception under the governmental immunity act, and that there is no implicit right to sue the state for damages on the basis of violations of art. 2, Secs. 1 and 16 of the 1908 Michigan Constitution.

A. Will v. Dep't of Civil Service

The plaintiff had been in the employ of the State of Michigan since 1969 when the following facts occurred, as set forth by the Court of Appeals:

"In the latter half of 1973, plaintiff sought opportunities to advance to data systems analyst 11, and one of these opportunities arose with the state police. Although plaintiff was ranked number two on the promotional register and the number one candidate withdrew, plaintiff was not hired by the state police that summer. He subsequently obtained a data systems analyst 11 position with the Highway Department in November, 1973.

"Unbeknownst to plaintiff, when the defendant department ran a security check on plaintiff, information about plaintiff's student activist brother, Charles, was released. Charles' file contained the notation, 'Subject's brother Ray Eugene DOB 2 27 44 made application for employment with MSP. Personnel advised 8 9 73.' Plaintiff did not learn of this until 1977, when legislation providing for maintenance of the so-called 'red squad' files, 1950 (Ex Sess) PA 38, 39 and 40, was declared unconstitutional and Charles obtained his file and showed it to his brother, plaintiff." Will v. Dep't of Civil Service, 145 Mich.App. 214, 217 218, 377 N.W.2d 826 (1985).

Upon learning that information regarding his brother's political activities may have influenced the decision to not promote him, Will, in 1977, filed a grievance with the Civil Service Commission. It was denied as untimely. In January, 1978, in a three-count complaint, he commenced suit against various state defendants 1 in the Ingham Circuit Court. Count I alleged that the CSC's refusal to hear plaintiff's grievance denied him due process of law in violation of the United States and Michigan Constitutions; count II alleged various violations of the United States and Michigan Constitutions as grounds for asserting a claim pursuant to 42 U.S.C. Sec. 1983; and count III alleged that defendants' determination of plaintiff's qualification for promotion, on the basis of his brother's political activities rather than on merit, "denied Plaintiff's right to due process of law and rights created under Const 1963, Art XI, Section 5," entitling him to damages. The state defendants did not answer plaintiff's complaint, but instead moved to remand the case to the CSC for a grievance hearing. In June of 1978, the motion was granted. The court retained jurisdiction to review any appeal from the decision of the CSC.

In November, 1978, while awaiting action on his grievance before the CSC, plaintiff filed suit in the Michigan Court of Claims. His complaint consisted of two counts, essentially identical to counts II (Sec. 1983 claim) and III (Michigan constitutional claim) of his circuit court complaint. In response, state defendants on December 5, 1978, moved for summary judgment on count I (Sec. 1983 claim) and accelerated judgment on count II (Michigan constitutional claim) of plaintiff's Court of Claims complaint. On May 7, 1979, the Court of Claims granted the state defendants' motion for accelerated judgment on count II because of the pending administrative proceedings, but denied defendants' motion for summary judgment on plaintiff's Sec. 1983 claim "[b]ecause there [was] a question of fact." The Court of Claims also granted plaintiff's motion to consolidate the Court of Claims and circuit court cases.

In the meantime, a fourth-step grievance hearing was conducted on plaintiff's charges. In June of 1980, the Civil Service Commission hearing officer found that the state had violated both Const. 1963, art. 11, Sec. 5 (the civil service provision) and Civil Service Rule 1.2 in making its decision regarding Mr. Will's promotion on the basis of "partisan considerations." The CSC affirmed the decision in January of 1981. Neither the state defendants nor the plaintiff appealed the CSC decision in the circuit court.

Nearly two years later, in November of 1982, Judge Thomas L. Brown rendered a decision on plaintiff's Sec. 1983 claim for both the Ingham Circuit Court and the Court of Claims. First, he decided that the CSC's decision provided sufficient grounds for finding that defendants had violated plaintiff's federal civil rights, under Sec. 1983.

"The violation of state law by a state official of itself is insufficient to state a violation of a federal right.... Under [Sec. 1983], liability is imposed on any 'person' who deprives another person's federally protected rights. Such rights have been construed by the courts to include the protection of life, liberty and property under the Fourteenth Amendment of the Federal Constitution. It is Plaintiff's position that the Due Process Clause protects his property right as a public employee to fair treatment.

"Plaintiff argues that the State having established a system of merit, [under Const 1963, art 11, Sec. 5] the denial of plaintiff's promotion based on Plaintiff's brother's political persuasion violates due process. The Court agrees."

Second, Judge Brown determined that the real party in interest was the State of Michigan, and that the Michigan Department of State Police and its director, sued in his official capacity, were persons for purposes of suit under Sec. 1983. The civil service defendants were dismissed. Finally, after considerable discussion of federal constitutional immunity under the Eleventh Amendment, the circuit court held that ...

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