Melissa Mays v. Governor Rick Snyder

STATE OF MICHIGAN

COURT OF APPEALS

MELISSA MAYS, MICHAEL ADAM MAYS, FOR PUBLICATION

JACQUELINE PEMBERTON, KEITH JOHN January 25, 2018

PEMBERTON, ELNORA CARTHAN, RHONDA 9:00 a.m.

KELSO, and ALL OTHERS SIMILARLY

SITUATED,

Plaintiffs-Appellees/Cross-

Appellees/Cross-Appellants,

v No. 335555

Court of Claims

GOVERNOR RICK SNYDER, STATE OF LC No. 16-000017-MM

MICHIGAN, MICHIGAN DEPARTMENT OF

ENVIRONMENTAL QUALITY, and

MICHIGAN DEPARTMENT OF HEALTH AND

HUMAN SERVICES,

Defendants-Appellants/Cross-

Appellees,

and

DARNELL EARLEY and JERRY AMBROSE,

Defendants/Cross-

Appellants/Cross-Appellees,

and

CITY OF FLINT,

Not Participating.

MELISSA MAYS, MICHAEL ADAM MAYS,

JACQUELINE PEMBERTON, KEITH JOHN

PEMBERTON, ELNORA CARTHAN, RHONDA

KELSO, and ALL OTHERS SIMILARLY

SITUATED,

Plaintiffs-Appellees,

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v No. 335725

Court of Claims

GOVERNOR RICK SNYDER, STATE OF LC No. 16-000017-MM

MICHIGAN, MICHIGAN DEPARTMENT OF

ENVIRONMENTAL QUALITY, and

MICHIGAN DEPARTMENT OF HEALTH AND

HUMAN SERVICES,

Defendants,

and

DARNELL EARLEY, and JERRY AMBROSE,

Defendants-Appellants,

and

CITY OF FLINT,

Not Participating.

MELISSA MAYS, MICHAEL ADAM MAYS,

JACQUELINE PEMBERTON, KEITH JOHN

PEMBERTON, ELNORA CARTHAN, RHONDA

KELSO, and ALL OTHERS SIMILARLY

SITUATED,

Plaintiffs-Appellees,

v No. 335726

Court of Claims

GOVERNOR RICK SNYDER, STATE OF LC No. 16-000017-MM

MICHIGAN, MICHIGAN DEPARTMENT OF

ENVIRONMENTAL QUALITY, and

MICHIGAN DEPARTMENT OF HEALTH AND

HUMAN SERVICES,

Defendants-Appellants,

and

DARNELL EARLEY and JERRY AMBROSE,

Defendants,

and

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CITY OF FLINT,

Not Participating.

Before: JANSEN, P.J., and FORT HOOD and RIORDAN, JJ.

JANSEN, P.J.

This case involves consolidated appeals from an October 26, 2016 opinion and order of

the Court of Claims granting partial summary disposition in favor of defendants Governor Rick

Snyder, the State of Michigan, the Michigan Department of Environmental Quality (DEQ), and

the Michigan Department of Health and Human Services (DHHS) (collectively “state

defendants”), and defendants Darnell Earley and Jerry Ambrose (city defendants), who are

former emergency managers for the city of Flint, in this putative class action suit brought by

plaintiff water users and property owners in the city of Flint, Michigan. For the reasons that

follow, we affirm.

I. FACTS AND PROCEDURE

This case arises from the situation commonly referred to as the “Flint water crisis.” The

lower court record is only modestly developed, and the facts of the case are highly disputed.

Because this is an appeal from an opinion of the Court of Claims partially granting and partially

denying defendants’ motion for summary disposition, we must construe the factual allegations in

a light most favorable to plaintiffs.1 The Court of Claims summarized the factual allegations in

plaintiffs’ complaint as follows:

From 1964 through late April 2014, the Detroit Water and Sewage

Department (“DWSD”) supplied Flint water users with their water, which was

drawn from Lake Huron. Flint joined Genesee, Sanilac, and Lapeer Counties and

the City of Lapeer, in 2009, to form the Karegondi Water Authority (“KWA”) to

explore the development of a water delivery system that would draw water from

Lake Huron and serve as an alternative to the Detroit water delivery system. On

March 28, 2013, the State Treasurer recommended to the Governor that he

1

See Dalley v Dykema Gossett PLLC, 287 Mich App 296, 304-305; 788 NW2d 679 (2010)

(explaining that in deciding a motion under MCR 2.116(C)(8), this Court must accept the

allegations as true and construe them in a light most favorable to the nonmoving party); Willett v

Charter Twp of Waterford, 271 Mich App 38, 45; 718 NW2d 386 (2006) (noting that when

deciding a motion under MCR 2.116(C)(7), “all well-pleaded allegations must be accepted as

true and construed in favor of the nonmoving party,” unless contradicted by the submitted

evidence); Cork v Applebee’s of Mich, Inc, 239 Mich App 311, 315; 608 NW2d 62 (2000)

(explaining that genuine issues of material fact regarding a court’s subject-matter jurisdiction

preclude summary disposition under MCR 2.116(C)(4)).

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authorize the KWA to proceed with its plans to construct the alternative water

supply system. The State Treasurer made this decision even though an

independent engineering firm commissioned by the State Treasurer had concluded

that it would be more cost efficient if Flint continued to receive its water from the

DWSD. Thereafter, on April 16, 2013, the Governor authorized then-Flint

Emergency Manager Edward Kurtz to contract with the KWA for the purpose of

switching the source of Flint’s water from the DWSD to the KWA beginning in

mid-year 2016.

At the time Emergency Manager Kurtz contractually bound Flint to the

KWA project, the Governor and various state officials knew that the Flint River

would serve as an interim source of drinking water for the residents of Flint.

Indeed, the State Treasurer, the emergency manager and others developed an

interim plan to use Flint River water before the KWA project became operational.

They did so despite knowledge of a 2011 study commissioned by Flint officials

that cautioned against the use of Flint River water as a source of drinking water

and despite the absence of any independent state scientific assessment of the

suitability of using water drawn from the Flint River as drinking water.

On April 25, 2014, under the direction of then Flint Emergency Manager

Earley and the Michigan Department of Environmental Quality (“MDEQ”), Flint

switched its water source from the DWSD to the Flint River and Flint water users

began receiving Flint River water from their taps. This switch was made even

though Michael Glasgow, the City of Flint’s water treatment plant’s laboratory

and water quality supervisor, warned that Flint’s water treatment plant was not fit

to begin operations. The 2011 study commissioned by city officials had noted

that Flint’s long dormant water treatment plant would require facility upgrades

costing millions of dollars.

Less than a month later, state officials began to receive complaints from

Flint water users about the quality of the water coming out of their taps. Flint

residents began complaining in June of 2014 that they were becoming ill after

drinking tap water. On October 13, 2014, General Motors announced that it was

discontinuing the use of Flint water in its Flint plant due to concerns about the

corrosive nature of the water. That same month, Flint officials expressed concern

about a Legionellosis outbreak and possible links between the outbreak and

Flint’s switch to river water. On February 26, 2015, the United States

Environmental Protection Agency (“EPA”) advised the MDEQ that the Flint

water supply was contaminated with iron at levels so high that the testing

instruments could not measure the exact level. That same month, the MDEQ was

also advised of the opinion of Miguel Del Toral of the EPA that black sediment

found in some of the tap water was lead.

During this time, state officials failed to take any significant remedial

measures to address the growing public health threat posed by the contaminated

water. Instead, state officials continued to downplay the health risk and advise

Flint water users that it was safe to drink the tap water while at the same time

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arranging for state employees in Flint to drink water from water coolers installed

in state buildings. Additionally, the MDEQ advised the EPA that Flint was using

a corrosion control additive with knowledge that the statement was false.

By early March 2015, state officials knew they faced a public health

emergency involving lead poisoning and the presence of the deadly Legionella

bacteria, but actively concealed the health threats posed by the tap water, took no

measures to effectively address the dangers, and publicly advised Flint water

users that the water was safe and that there was no widespread problem with lead

leaching into the water supply despite knowledge that these latter two statements

were false.

Through the summer and into the fall of 2015, state officials continued to

cover up the health emergency, discredit reports from Del Toral of the EPA and

Professor Marc Edwards of Virginia Tech confirming serious lead contamination

in the Flint water system, conceal critical information confirming the presence of

lead in the water system, and advise the public that the drinking water was safe

despite knowledge to the contrary. In the fall of 2015, various state officials

attempted to discredit the findings of Dr. Mona Hann-Attisha of Hurley Hospital,

which reflected a “spike in the percentage of Flint children with elevated blood

lead levels from blood drawn in the second and third quarter of 2014.”

In early October of 2015, however, the Governor acknowledged that the

Flint water supply was contaminated with dangerous levels of lead. He ordered

Flint to reconnect to the Detroit water system on October 8, 2015, with the

reconnection taking place on October 16, 2015. This suit followed. [Mays v

Snyder, unpublished opinion of the Court of Claims, issued October 26, 2016

(Docket No. 16-000017-MM), pp 3-6 (citation omitted).]

On January 21, 2016, plaintiffs brought a four-count verified class action complaint

against all defendants in the Court of Claims “on behalf of Flint water users, which include but

are not limited to, tens of thousands of residents . . . of the City of Flint.” Plaintiffs brought their

complaint pursuant to the Due Process/Fair and Just Treatment and unjust taking clauses of

Article 1, § 17 and Article 10, § 2 of the Michigan Constitution alleging that since “April 25,

2014 to the present, [plaintiffs] have experienced and will continue to experience serious

personal injury and property damage caused by Defendants’ deliberately indifferent decision to

expose them to the extreme toxicity of water pumped from the Flint River into their homes,

schools, hospitals, correctional facilities, workplaces and public places.” Specifically, plaintiffs

alleged that defendants (1) “knowingly took from Plaintiffs safe drinking water and replaced it

with what they knew to be a highly toxic alternative solely for fiscal purposes,” (2) for more than

18 months, ignored irrefutable evidence that the Flint River water was extremely toxic and

causing serious injury to persons and property, (3) failed to properly sample and monitor the

Flint River water, (4) knowingly delivered false assurances that the Flint River water was being

tested and treated and was safe to drink, and (5) deliberately delayed notification to the public of

serious safety and health risks.

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Plaintiffs sought class certification and elected to pursue causes of action against all

defendants for state-created danger (Count I), violation of plaintiffs’ due process right to bodily

integrity (Count II), denial of fair and just treatment during executive investigations (Count III),

and unconstitutional taking via inverse condemnation (Count IV). Plaintiffs sought an award of

economic and noneconomic damages for, among other things, bodily injury, pain and suffering,

and property damage, for “deliberately indifferent fraud” and “unconscionable” deception on the

part of defendants while acting in their official capacities.

State and city defendants separately moved for summary disposition on all four counts,

arguing that, among other things, plaintiffs had (1) failed to satisfy the statutory notice

requirements of MCL 600.6431, (2) failed to allege facts to establish a constitutional violation

for which a judicially inferred damages remedy is appropriate, and (3) failed to allege facts to

establish the elements of any of their claims. In a detailed opinion and order, the Court of

Claims granted defendants’ motions for summary disposition on plaintiffs’ causes of action

under the state-created danger doctrine and the Fair and Just Treatment Clause of the Michigan

Constitution, after concluding that neither cause of action is cognizable under Michigan law.2

However, the court denied summary disposition on all of defendants’ remaining grounds.

II. STATUTORY NOTICE REQUIREMENTS

On appeal, defendants first argue that the Court of Claims erred when it denied

defendants’ motions for summary disposition under MCR 2.116(C)(4) and (C)(7) because

plaintiffs failed to satisfy the requirement of statutory notice to avoid governmental immunity

and seek relief against the state in the Court of Claims. We disagree.

“We review a trial court’s decision regarding a motion for summary disposition de novo.”

City of Fraser v Almeda Univ, 314 Mich App 79, 85; 886 NW2d 730 (2016). A motion for

summary disposition under MCR 2.116(C)(4) tests the trial court’s subject-matter jurisdiction.

Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 154; 756 NW2d 483 (2008). “We

review a trial court’s decision on a motion for summary disposition based on MCR 2.116(C)(4)

de novo to determine if the moving party was entitled to judgment as a matter of law, or if

affidavits or other proofs demonstrate there is an issue of material fact.” Southfield Educ Assoc v

Bd of Educ of Southfield Pub Sch, 320 Mich App 380, ___; ___ NW2d ___ (2017) (Docket No.

331087), slip op at 10 (quotation marks and citation omitted). Whether a court has subject-

matter jurisdiction over a claim is a question of law this Court reviews de novo. Jamil v Jahan,

280 Mich App 92, 99-100; 760 NW2d 266 (2008). Likewise, “whether MCL 600.6431 requires

dismissal of a plaintiff’s claim for failure to provide the designated notice raises questions of

statutory interpretation,” which this Court reviews de novo. McCahan v Brennan, 492 Mich 730,

736; 822 NW2d 747 (2012).

Summary disposition under MCR 2.116(C)(7) is appropriate when a claim is barred

because of immunity granted by law. Dextrom v Wexford Co, 287 Mich App 406, 428; 789

2

On appeal, plaintiffs take no issue with the Court of Claims’ dismissal of their claim for

violation of the Fair and Just Treatment Clause.

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NW2d 211 (2010). “When reviewing a motion under MCR 2.116(C)(7), this Court must accept

all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless

other evidence contradicts them.” Id. “If no material facts are in dispute, or if reasonable minds

could not differ regarding the legal effect of the facts, the question whether the claim is barred by

governmental immunity is an issue of law.” Willett v Charter Twp of Waterford, 271 Mich App

38, 45; 718 NW2d 386 (2006) (quotation marks, citation, and alteration marks omitted).

We hold that the Court of Claims did not err when it determined that genuine issues of

material fact still exist regarding whether plaintiffs satisfied the statutory notice requirements of

MCL 600.6431. Further, we hold that the harsh and unreasonable consequences exception

relieves plaintiffs from the statutory notice requirements and that, depending on plaintiffs’ ability

to prove the allegations of their complaint, the fraudulent concealment exception of MCL

600.5855 may provide an alternative basis to affirm the court’s denial of summary disposition.

A. STATUTORY NOTICE REQUIREMENTS

In Michigan, governmental agencies engaged in governmental functions are generally

immune from tort liability. Kline v Dep’t of Transp, 291 Mich App 651, 653; 809 NW2d 392

(2011). The government, by statute, may voluntarily subject itself to liability and “may also

place conditions or limitations on the liability imposed.” McCahan, 492 Mich at 736. “Indeed,

it is well established that the Legislature may impose reasonable procedural requirements, such

as a limitations period, on a plaintiff’s available remedies even when those remedies pertain to

alleged constitutional violations.” Rusha v Dep’t of Corrections, 307 Mich App 300, 307; 859

NW2d 735 (2014). “[I]t being the sole province of the Legislature to determine whether and on

what terms the state may be sued, the judiciary has no authority to restrict or amend those

terms.” McCahan, 492 Mich at 732. Thus, “no judicially created savings construction is

permitted to avoid a clear statutory mandate.” Id. at 733. When the language of a limiting

statute is straightforward, clear, and unambiguous, it must be enforced as written. Rowland v

Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007).

One statutory condition on the right to sue governmental agencies of the state of

Michigan is the notice provision of the Court of Claims Act (CCA), MCL 600.6401 et seq.

McCahan, 492 Mich at 736. The provision, MCL 600.6431, provides:

(1) No claim may be maintained against the state unless the claimant,

within 1 year after such claim has accrued, files in the office of the clerk of the

court of claims either a written claim or a written notice of intention to file a claim

against the state or any of its departments, commissions, boards, institutions, arms

or agencies, stating the time when and the place where such claim arose and in

detail the nature of the same and of the items of damage alleged or claimed to

have been sustained, which claim or notice shall be signed and verified by the

claimant before an officer authorized to administer oaths.

* * *

(3) In all actions for property damage or personal injuries, claimant shall

file with the clerk of the court of claims a notice of intention to file a claim or the

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claim itself within 6 months following the happening of the event giving rise to

the cause of action.

Our Supreme Court has directed that “[c]ourts may not engraft an actual prejudice

requirement or otherwise reduce the obligation to comply fully with the statutory notice

requirements.” McCahan, 492 Mich at 747. The notice requirement of MCL 600.6431 is an

unambiguous “condition precedent to sue the state,” McCahan v Brennan, 291 Mich App 430,

433; 804 NW2d 906 (2011), aff’d 492 Mich 730 (2012), and a claimant’s failure to strictly

comply warrants dismissal of the claim,” McCahan, 492 Mich at 746-747.

There is no dispute that plaintiffs’ action involves personal injury and property damage.

Plaintiffs filed their complaint in the instant suit on January 21, 2016, without having filed a

separate notice of intention to file a claim. Thus, to have strictly complied with the notice

requirement of MCL 600.6431, plaintiffs’ claims must have accrued on or after June 21, 2015,

the date six months prior to the date of filing. Defendants argue that plaintiffs’ claims accrued,

and the statutory notice period began to run, in either June of 2013, when plaintiffs allege that

the state “ordered and set in motion the use of highly corrosive and toxic Flint river water

knowing that the [water treatment plant] was not ready,” or on April 25, 2014, when Flint’s

water source was switched over to the Flint River and residents began receiving Flint River

water from their taps. In either circumstance, according to defendants, plaintiffs’ complaint was

not filed within the six-month statutory notice period and plaintiffs’ claims must be dismissed.

As the Court of Claims observed, accepting defendants’ position would require a finding that

plaintiffs should have filed suit or provided notice at a time when the state itself claims it had no

reason to know that the Flint River water was contaminated. Like the Court of Claims, we are

disinclined to accept defendants’ position.

At a minimum, summary disposition on this ground is premature. Plaintiffs have alleged

personal injury and property damage sustained as a result of defendants’ allegedly knowing and

deliberate decision to supply plaintiffs with contaminated and unsafe drinking water. Although

defendants assert that plaintiffs’ causes of action could only have arisen on the date of the

physical switch, our Legislature has not defined claim accrual so narrowly. Rather, for purposes

of statutory limitations periods, our Legislature has stated that a claim accrues “at the time the

wrong upon which the claim is based was done,” MCL 600.5827, and our Supreme Court has

clarified that “the ‘wrong’ . . . is the date on which the defendant’s breach harmed the plaintiff,

as opposed to the date on which defendant breached his duty.” Frank v Linkner, 500 Mich 133,

___; 894 NW2d 574, 582 (2017).3 Thus, the date on which defendants acted to switch the water

is not necessarily the date on which plaintiffs suffered the harm giving rise to their causes of

action. Although our Supreme Court has abrogated the application of the discovery doctrine in

this state, it has also made clear that it is not until “all of the elements of an action for . . . injury,

3

The Legislature imported this definition of claim accrual into the CCA under MCL

600.6452(2), which states that “[e]xcept as modified by this section, the provisions of RJA

chapter 58, relative to the limitation of actions, shall also be applicable to the limitation

prescribed in this section.” (Citation omitted.)

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including the element of damage, are present, [that] the claim accrues and the statute of

limitations begins to run.” Marilyn Froling Revocable Living Trust v Bloomfield Hills Country

Club, 283 Mich App 264, 290; 769 NW2d 234 (2009), quoting Connelly v Paul Ruddy’s Equip

Repair and Serv Co, 388 Mich 146, 151; 200 NW2d 70 (1972). In other words, while a

claimant’s knowledge of each element of a cause of action is not necessary for claim accrual, a

claim does not accrue until each element of the cause of action, including some form of damages,

exists. See Henry v Dow Chem Co, 319 Mich App 704, ___; ___ NW2d ___ (2017) (Docket No.

328716), slip op at 7. Determination of the time at which plaintiffs’ claims accrued therefore

requires a determination of the time at which plaintiffs were first harmed. See id.

Plaintiffs allege various affirmative actions taken by defendants in this case that resulted

in distinct harm to plaintiffs. As plaintiffs concede, not every injury suffered by every user of

Flint water is necessarily actionable. However, questions of fact remain regarding whether and

when each plaintiff suffered injury and when each plaintiff’s claims accrued relative to the filing

of plaintiffs’ complaint. For example, plaintiffs have alleged economic damage in the form of

lost property value that did not occur on the date of the water switch. Plaintiffs’ claim for lack of

marketability did not accrue until the values of their homes decreased, which would have

occurred when the water crisis became public and marketability of property in Flint became

significantly impaired in October 2015. Further, it is not clear on what date plaintiffs suffered

actionable personal injuries as a result of their use and consumption of the contaminated water.

Plaintiffs should be permitted to conduct discovery and given the opportunity to prove the dates

on which their distinct harms first arose before summary disposition may be appropriate.4 This

is especially true where, as here, there are multiple events giving rise to plaintiffs causes of

action. 5 “[T]he fact that some of [a] plaintiff’s claims accrued outside the limitations period does

not time-bar all of the plaintiff’s claims.” Dep’t of Environmental Quality v Gomez, 318 Mich

App 1, 28; 896 NW2d 39 (2016).

Thus, even if strict compliance with the statutory notice provision is required, summary

disposition, at least at this juncture, is premature. Further, as the Court of Claims observed, there

4

Defendants argue that the Court of Claims erred in relying “only” on hypothetical claims of

putative class members to find remaining issues of fact. It is true that a plaintiff who has not

suffered an injury “cannot maintain the cause of action as an individual is not qualified to

represent [a] proposed class.” Doe v Henry Ford Health Sys, 308 Mich App 592, 604; 865

NW2d 915 (2014) (quotation marks and citation omitted.) However, the issue of class

certification has not yet been raised and, in any case, defendants’ argument is not supported by

the record. The Court of Claims fully considered plaintiffs’ complaint and cited specific

allegations by plaintiffs in this case before concluding that questions of fact remained regarding

plaintiffs’ ability to establish claims accruing later than the date of the water switch.

5

The Court of Claims did not err in recognizing that plaintiffs’ complaint alleges multiple harms

resulting from distinct tortious acts, rather than a continuing harm resulting from the single

tortious act of switching the water source. For purposes of accrual, each of plaintiffs’ individual

causes of action must be considered separately. See Joliet v Pitoniak, 475 Mich 30, 42; 715

NW2d 60 (2006).

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are factual questions that, if resolved in plaintiffs’ favor, would justify “relieving [plaintiffs] of

the requirements of” MCL 600.6431(3). Rusha, 307 Mich App at 312.

B. HARSH AND UNREASONABLE CONSEQUENCES

Plaintiffs have asserted only constitutional claims against the state and various agencies.

In Rusha, 307 Mich App at 311, the Court of Appeals acknowledged that “Michigan courts

routinely enforce statutes of limitations where constitutional claims are at issue.” However, the

Court also acknowledged an exception to enforcement when strict enforcement of a limitations

period is so harsh and unreasonable in its consequences that it “effectively divest[s]” a plaintiff

“of the access to the courts intended by the grant of [a] substantive right.” Rusha, 307 Mich App

at 311 (citation omitted). The Court then noted that there is no obvious reason not to extend this

exception, typically applied to relieve a plaintiff of the effects of statutory limitations periods, to

statutory notice requirements. Specifically considering MCL 600.6431(3), the Rusha Court

opined:

We see no reason—and plaintiff has provided none—to treat statutory

notice requirements differently [than statutes of limitations]. Indeed, although

statutory notice requirements and statutes of limitations do not serve identical

objectives, both are procedural requirements that ultimately restrict a plaintiff’s

remedy, but not the substantive right. [Rusha, 307 Mich App at 311-312

(citations omitted).]

Defendants argue that Rusha was incorrectly decided and should not influence our

decision here. Specifically, defendants assert that the Rusha Court’s conclusions, first that a

harsh and unreasonable consequences exception may relieve plaintiffs from the statute of

limitations and second that the same exception applies to statutory notice requirements, are

directly contradicted by three earlier decisions of the Michigan Supreme Court: Trentadue v

Buckler Lawn Sprinkler, 479 Mich 378; 738 NW2d 664 (2007); Rowland, 477 Mich 197, and

McCahan, 492 Mich 730. Defendants argue that these cases unequivocally prohibit the

application of any type of judicial “saving construction” to avoid the “clear statutory mandate” of

a legislatively-imposed limitations period. Defendants are correct that these cases stand for the

proposition that a court may not craft an exception to the statutory notice or limitations periods

by recognizing viability of a substantially compliant notice, engrafting a prejudice requirement,

or similarly reducing the requirements of the statute, even where constitutional claims are at

issue. Indeed, the Court in Rusha acknowledged that “a claimant’s failure to comply strictly

with [the notice provision of MCL 600.6431] warrants dismissal of the claim, even if no

prejudice resulted.” Rusha, 307 Mich App at 307, citing McCahan, 492 Mich 746-747.

However, the Court also recognized that the strict compliance requirement must be set aside

when its application completely divests a plaintiff of the opportunity to assert a substantive right.

Id. at 311. Despite defendants’ assertion to the contrary, Rusha should not be read as advocating

for the creation of a judicial saving construction to supplement an otherwise valid statute.

Rather, it seems that the Rusha Court properly recognized the long-standing principle that while

the Legislature retains the authority to impose reasonable procedural restrictions on a claimant’s

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pursuit of claims under self-executing constitutional provisions, “the right guaranteed shall not

be curtailed or any undue burdens placed thereon.” Id. at 308, quoting Durant v Dep’t of Ed (On

Second Remand), 186 Mich App 83, 98; 463 NW2d 461 (1990).6

The Michigan Constitution is the preeminent law of our land, and its provisions restrict

the conduct of the state government. See Burdette v State, 166 Mich App 406, 408; 421 NW2d

185 (1988). Indeed, the Due Process Clause of the Michigan Constitution, as a Declaration of

Rights provision, “ha[s] consistently been interpreted as limited to protection against state

action.” Sharp v Lansing, 464 Mich 792, 813; 629 NW2d 873 (2001) (emphasis added). The

Legislature may not impose a procedural requirement that would, in practical application,

completely divest an individual of his ability to enforce a substantive right guaranteed

thereunder. The harsh and unreasonable consequences exception is merely a judicial recognition

that in limited cases, where the practical application of the Legislature’s statutorily imposed

procedural requirements are “unreasonable” or completely divest a claimant of his right to

pursue a constitutional claim, those procedural requirements are unconstitutional.

The Rusha Court’s recognition of this limitation on legislative power does not conflict

with the holdings in Trentadue, Rowland, or McCahan.7 Importantly, these cases advocate strict

compliance with statutory limitations and notice requirements in the context of legislatively

granted rights, rather than on rights granted under the provisions of our Constitution itself. See

McCahan, 492 Mich at 733 (considering the statutory notice period in relation to a claim for

personal injury and property damage arising from a motor vehicle accident); Trentadue, 479

Mich at 386-387 (considering the statute of limitations on a wrongful death action); Rowland,

477 Mich at 200 (considering the statutory notice period for a claim against a county defendant

under a statutory exception to governmental liability). The right to pursue the tort claims

involved in each arose from enumerated exceptions to the governmental tort liability act

(GTLA), MCL 691.1401 et seq.; allowances structured by the Legislature’s own authority and

therefore subject to the Legislature’s discretion. Additionally, Rusha was decided years after

each of these cases, and is supported by precedent that has not been overruled.8

6

The Due Process Clause of the Michigan Constitution proscribes specific conduct and sets forth

“a sufficient rule by means of which the right which it grants may be enjoyed and protected,” and

is therefore self-executing. See Rusha, 307 Mich App at 308-309; see also Santiago v New York

State Dep’t of Correctional Servs, 945 F2d 25, 27 (CA 2, 1991) (considering the coextensive

clause of the United States Constitution and opining that the substantive provisions of the

Fourteenth Amendment are self-executing in nature). Indeed, the presumption is that all

provisions of the Constitution, unless drafted only to reflect mere general principles, are self-

executing. Detroit v Oakland Circuit Judge, 237 Mich 446, 450; 212 NW 217 (1927).

7

Because we find no conflict between Rusha and the earlier Michigan Supreme Court cases

cited by defendants here, we decline defendants’ request to convene a conflict panel under MCR

7.215(J).

8

State defendants direct this Court’s attention to Bacon v Michigan, unpublished opinion of the

Court of Claims, issued June 7, 2017 (Docket No. 16-000312-MM), in which the court suggested

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Applying the harsh and unreasonable consequences exception to the facts presented in

Rusha, the Court concluded that there was no reason to relieve the plaintiff from the requirement

of strict compliance with the statutory notice requirement. Id. at 312-313. The Court explained:

Here, it can hardly be said that application of the six-month notice

provision of § 6431(3) effectively divested plaintiff of the ability to vindicate the

alleged constitutional violation or otherwise functionally abrogated a

constitutional right. Again, plaintiff waited nearly 28 months to file his claim.

But § 6431(3) would have permitted him to file a claim on this very timeline had

he only provided notice of his intent to do so within six months of the claim’s

accrual. Providing such notice would have imposed only a minimal procedural

burden, which in any event would be significantly less than the “minor ‘practical

difficulties’ facing those who need only make, sign and file a complaint within six

months.” To be sure, providing statutory notice “ ‘requires only ordinary

knowledge and diligence on the part of the injured and his counsel, and there is no

reason for relieving them from the requirements of this [statutory notice

provision] that would not be applicable to any other statute of limitation.’ ” [Id.

(citations omitted).]

Here, unlike in Rusha, application of the harsh and unreasonable consequences exception

is clearly supported. To grant defendants’ motions for summary disposition at this early stage in

the proceedings would deprive plaintiffs of access to the courts and effectively divest them of the

ability to vindicate the constitutional violations alleged. As the Court of Claims observed, this is

not a case where an ostensible, single event or accident has given rise to a cause of action, but

one where the “event giving rise to the cause of action was not readily apparent at the time of its

happening.” Mays, unpub op at 10. “Similarly, a significant portion of the injuries alleged to

persons and property likely became manifest so gradually as to have been well established before

in a footnote that “defendants appear correct in their argument that the statement [from Rusha

recognizing a harsh and unreasonable consequence exception] is no longer a valid statement of

law as it pertains to statutes of limitations[.]” Id. at 8 n 5. The Court of Claims correctly noted

that in Curtin v Dep’t of State Highways, 127 Mich App 160; 339 NW2d 7 (1983), the case cited

by Rusha, the Court relied for this language on a now-abrogated opinion, Reich v State Highway

Dep’t, 386 Mich 617; 194 NW2d 700 (1972), abrogated by Rowland, 477 Mich at 206-207. Id.

However, the court incorrectly concluded that because Curtin cited bad case law, the principle

announced in Rusha is “no longer [] valid.” Our courts have recognized a harsh and

unreasonable consequences exception to the Legislature’s statute of limitations in various lines

of cases that have not been overruled. Most recently, this Court affirmed the application of the

exception in Genesee Co Drain Comm’r v Genesee Co, 309 Mich App 317, 332-333; 869 NW2d

635 (2015), with the same language employed by the Court in Rusha. Rusha’s detailed

discussion of the exception and its application to the statutory notice period remains valid despite

the citation error.

We would note that the Michigan Supreme Court denied leave to appeal the Rusha

decision. Rusha v Dep’t of Corrections, 498 Mich 860; 865 NW2d 28 (2015).

-12-

becoming apparent to plaintiffs because the evidence of injury was concealed in the water supply

infrastructure buried beneath Flint and in the bloodstreams of those drinking the water supplied

via that infrastructure.” Id. at 10-11. Plaintiffs in this case did not wait more than two years

after discovering their claims to file suit. Rather, they filed suit within six months of the state’s

public acknowledgment and disclosure of the toxic nature of the Flint River water plaintiffs were

exposed to.

Further supporting the application of the harsh and unreasonable consequences exception

to the requirement of statutory notice are plaintiffs’ allegations of affirmative acts undertaken by

numerous state actors, including named defendants, between April 25, 2014 and October 2015,

to conceal both the fact that the Flint River water was contaminated and hazardous, and the

occurrence of any event that would trigger the running of the six-month notice period. Under

these unique circumstances, to file statutory notice within six months of the date of the water

source switch would have required far more than ordinary knowledge and diligence on the part

of plaintiffs and their counsel. It would have required knowledge that defendants themselves

claim not to have possessed at the time plaintiffs’ causes of action accrued.9

Should plaintiffs’ allegations be proven true, defendants’ affirmative acts of concealment

and frustration of plaintiffs’ discovery of the alleged causes of action should not be rewarded. It

would be unreasonable to divest plaintiffs of the opportunity to vindicate their substantive,

constitutional rights simply because defendants successfully manipulated the public long enough

to outlast the statutory notice period. Although circumstances such as these will undoubtedly be

few, we believe that in this unique situation, we must not set a standard whereby the state and its

officers may completely avoid liability if they manage to intentionally delay discovery of a cause

of action until the six-month statutory notice period has expired. Plaintiffs must be afforded the

opportunity to support the allegations of their complaint before dismissal of their claims may be

appropriate.

Because application of the harsh and unreasonable consequences exception to strict

compliance with the statutory notice requirements is appropriate under the unique factual

circumstances of this case, this Court need not consider whether, as defendants have asserted,

plaintiffs improperly rely on the now-abrogated doctrines of discovery and continuing wrongs.

Despite the unavailability of these previously-accepted principles, see Henry, 319 Mich App at

9

We flatly reject defendants’ contention that the burden on plaintiffs to file statutory notice

within six months of the water switch would have been “minimal” because plaintiffs only needed

to know that a claim was possible, not that a claim was fully supported, in order to provide

timely notice. Defendants assume that plaintiffs had any knowledge of a possible claim during

the period where, as plaintiffs allege, defendants were actively concealing information that a

claim had accrued and the notice period had begun. If plaintiffs’ allegations are proved true,

filing notice within six months after the physical water switch would have placed more than a

“minimal” burden on plaintiffs and their counsel. Indeed, it would have required clairvoyant

recognition of circumstances that the state was working to convince the public did not actually

exist.

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___, slip op at 6-7, plaintiffs’ constitutional tort claims survive summary disposition on the non-

conflicting basis that dismissal would result in a harsh and unreasonable deprivation “of access

to the courts intended by the grant of [a] substantive right.” See Rusha, 307 Mich App at 311.

Finally, we briefly address the dissent’s mention of similar pending Federal district court

and circuit court actions. The dissent argues that even though plaintiffs are precluded from

recovery due to their alleged failure to provide proper notice, “the residents of Flint are not left

entirely without remedies,” due to several pending actions in the United States District Court for

the Eastern District of Michigan, and the United States Sixth Circuit Court of Appeals, including

some actions in which the named plaintiff in this case is also involved. However, until those

actions are fully resolved, any recovery is speculative. Further, where many federal statutory

remedies are limited, the Court of Claims is able to fashion any reasonable remedy necessary to

adequately address the Constitutional violations complained of by plaintiffs. Accordingly, we

disagree with the dissent that plaintiffs are able to avoid any “harsh remedies” by seeking relief

in the Federal courts.

C. FRAUDULENT CONCEALMENT

In a footnote, the Court of Claims rejected plaintiffs’ argument that the fraudulent

concealment exception of MCL 600.5855 applied to toll the statute of limitations and the

statutory notice period in this case. We find that the Court of Claims erred in reaching this

conclusion, and hold that the fraudulent concealment exception may provide an alternative basis

for affirming the denial of defendants’ motions for summary disposition.

The fraudulent concealment exception is a legislatively-created exception to statutes of

limitation. The exception is codified as part of the Revised Judicature Act (RJA), MCL 600.101

et seq., in MCL 600.5855, which states:

If a person who is or may be liable for any claim fraudulently conceals the

existence of the claim or the identity of any person who is liable for the claim

from the knowledge of the person entitled to sue on the claim, the action may be

commenced at any time within 2 years after the person who is entitled to bring the

action discovers, or should have discovered, the existence of the claim or the

identity of the person who is liable for the claim, although the action would

otherwise be barred by the period of limitations.

This statutory section permits the tolling of a statutory limitations period for two years if the

defendant has fraudulently concealed the existence of a claim. For the fraudulent concealment

exception to apply, a “plaintiff must plead in the complaint the acts or misrepresentations that

comprised the fraudulent concealment,” and “prove that the defendant committed affirmative

acts or misrepresentations that were designed to prevent subsequent discovery.” Sills v Oakland

Gen Hosp, 220 Mich App 303, 310; 559 NW2d 348 (1996).

The Legislature, in crafting the CCA, imported the fraudulent concealment exception into

its statute of limitations provision. MCL 600.6452(2). However, as defendants point out, the

Legislature did not explicitly import the exception into the statutory notice provision of the CCA.

See MCL 600.6431. The Court of Claims rejected plaintiffs’ assertion that the fraudulent

concealment exception should apply to the CCA’s statutory notice requirement, finding the

-14-

absence of a similar provision directly applicable to MCL 600.643 “persuasive evidence that the

Legislature did not intend for the fraudulent concealment tolling provision of MCL 600.5855 to

be read into the notice provisions of MCL 600.6431.” Mays, unpub op at 11-12 n 4. We

disagree.

It is a basic tenant of statutory construction that the omission of a statutory provision

should be construed as intentional. CMAC LLC v Treasury Dep’t, 286 Mich App 365, 372; 781

NW2d 310 (2009). “Courts cannot assume that the Legislature inadvertently omitted from one

statute the language that it placed in another statute, and then, on the basis of that assumption,

apply what is not there.” Id. (quotation marks and citation omitted). However, in this case, the

Legislature did not “omit” from the CCA any language from the statute of limitations provisions

of the RJA. Rather, the Legislature specifically included language mandating application of the

RJA’s statute of limitations provisions, and exceptions, to the statute of limitations provisions of

the CCA. See MCL 600.6452(2).

The RJA contains no statutory notice period, and neither the Legislature nor our courts

have ever had the occasion to consider whether the fraudulent concealment exception might

apply to such a provision. The Legislature’s failure to specifically address the application of the

fraudulent concealment exception to the CCA’s statutory notice period therefore cannot be

presumed intentional under the above-mentioned rules of statutory construction. While “the

Legislature is presumed to be aware of, and thus to have considered the effect [of a statutory

enactment] on, all existing statutes,” GMAC LLC, 286 Mich App at 372 (emphasis added), it

makes no sense to presume knowledge of a potential future conflict without a context in which

such knowledge would arise. Indeed, it would make as much sense to presume that the

Legislature did not consider the issue of whether the fraudulent concealment exception would

apply to the statutory notice provision of the CCA because, had it done so, it would have made

its determination explicit. The Legislature’s omission here does not provide dispositive evidence

of intent, and we therefore must proceed according to the well-established rules of statutory

interpretation and construction.

“The primary goal of judicial interpretation of statutes is to ascertain and give effect to

the intent of the Legislature.” Dawson v Secretary of State, 274 Mich App 723, 729; 739 NW2d

339 (2007). “This Court begins by reviewing the language of the statute, and, if the language is

clear and unambiguous, it is presumed that the Legislature intended the meaning expressed in the

statute.” McCormick v Carrier, 487 Mich 180, 191; 795 NW2d 517 (2010). In such cases,

“judicial construction is neither required nor permitted.” Solution Source, Inc v LPR Assoc Ltd

Partnership, 252 Mich App 368, 373; 652 NW2d 474 (2002). “However, if reasonable minds

can differ concerning the meaning of a statute, judicial construction of the statute is appropriate.”

Id.

We conclude that reasonable minds could differ regarding the meaning of MCL 600.5855

as applied in the context of claims brought under the CCA. First, it must be noted that while

MCL 600.5855, a subsection of Chapter 58 of the RJA, is part of the Legislature’s statutory

scheme for statutory limitations periods, the statutory language does not otherwise express or

imply that its exception operates only by tolling only the limitations period. To the contrary, the

plain language of the statute provides that an action that has been fraudulently concealed “may

be commenced at any time within 2 years after the person who is entitled to bring the action

-15-

discovers, or should have discovered, the existence of the claim. . . .” MCL 600.5855. The

statute’s direction that such an action may proceed notwithstanding that “the action would

otherwise be barred by the period of limitations,” does not specifically limit the exception’s

application to those claims barred by the expiration of the limitations period. Considering only

the plain language of MCL 600.5855, reasonable minds could differ on the question of whether

the provision, as imported into the CCA, is intended to grant a claimant whose claim has been

fraudulently concealed an affirmative right to bring suit within two years of discovery, regardless

of prior noncompliance with the statutory requirements, or if the exception applies only to toll

the statutory limitations period.

The language of MCL 600.5855 becomes more ambiguous when it is practically applied

in the context of a claim brought under the CCA. Although MCL 600.5855 clearly permits the

commencement of an action within two years after a claimant discovers or should have

discovered a fraudulently concealed claim, the statutory notice period of MCL 600.6431

prohibits the commencement of an action without notice filed within six months or one year of

the date on which the claim accrued. As previously discussed, the discovery doctrine has been

abrogated in this state, see Trentadue, 479 Mich at 391-392, and a claim accrues on the date a

claimant is harmed, regardless of when the claimant first learns of his harm. If MCL 600.6431 is

strictly applied, as it must be, see McCahan, 492 Mich at 746-747, it is impossible to reconcile

with the Legislature’s clear intent to provide claimants with two years from the date of discovery

to bring suit on a harm that the liable party has fraudulently concealed.10

“Statutory provisions are not to be read in isolation; rather, context matters, and thus

statutory provisions are to be read as a whole.” Robinson v Lansing, 486 Mich 1, 16; 782 NW2d

171 (2010). The Legislature clearly intended to incorporate the statutory limitations periods and

exceptions, including the fraudulent concealment exception of MCL 600.5855, into the CCA.

See MCL 600.6452(2). If the fraudulent concealment exception is not applied equally to the

statutory period of limitations and the statutory notice period of the CCA, it cannot be applied at

all. See Apsey v Mem Hosp, 477 Mich 120, 131; 730 NW2d 695 (“A statute is rendered

nugatory when an interpretation fails to give it meaning or effect.”). “[C]ourts must interpret

statutes in a way that gives effect to every word, phrase, and clause in a statute and avoid an

interpretation that would render any part of the statute surplusage or nugatory.” O’Connell v

Director of Elections, 316 Mich App 91, 98; 891 NW2d 240 (2016). Further, when there is

“tension, or even conflict, between sections of a statute,” this Court has a “duty to, if reasonably

possible, construe them both so as to give meaning to each; that is, to harmonize them.” Nowell

10

We reject defendants’ contention that to find a conflict between MCL 600.5855 and MCL

600.6431 one must “wrongly assume[] that a notice of intent is the same as a legal complaint.” It

is true that a claimant requires only minimal information to file a notice of intent, and that the

knowledge required distinguishes a notice of intent from a legal complaint. However, a claimant

that can satisfy the fraudulent concealment exception will have no knowledge of his potential

claim prior to the date he discovers or should reasonably be expected to discover it. It is simply

nonsensical to argue that a claimant may satisfy the notice requirement and still claim the benefit

of the fraudulent concealment tolling provision.

-16-

v Titan Ins Co, 466 Mich 478, 483; 648 NW2d 157 (2002). Here, to read MCL 600.5855, as

imported into the CCA, and MCL 600.6431 in harmony requires the conclusion that when the

fraudulent concealment exception applies, it operates to toll the statutory notice period as well as

the statutory limitations period.

Importantly, application of the fraudulent concealment exception to statutory notice

periods does nothing to undermine the purpose for requiring timely statutory notice. As

defendants concede, the purpose of the notice provision in MCL 600.6431 is to establish a “clear

procedure” for pursuing a claim against the state and eliminate “ambiguity” about whether a

claim will be filed. McCahan, 492 Mich at 744 n 24. The provision gives the state and its

agencies time to create reserves and reduces the uncertainty of the extent of future demands.

Rowland, 477 Mich at 211-212. But when the state and its officers, having knowledge of an

event giving rise to liability and anticipating the possibility that claims may be filed, actively

conceal information in order to prevent a suit, the state suffers no “ambiguity” or surprise. In

cases where the fraudulent concealment exception may be applied, the state possesses the

necessary information and the object of the statutory notice requirement is self-executing.

Application of the fraudulent concealment exception to the statutory notice requirement of the

CCA is therefore consistent with both the legislative intent behind the exception itself and the

purpose of the statutory notice period. In keeping with the principles of statutory construction

and the Legislature’s clear intent to permit the application of the fraudulent concealment

exception to claims brought under the CCA, we hold that the fraudulent concealment exception

applies, at least, to toll the statutory notice period commensurate with the tolling of the statute of

limitations in situations where its requirements have been met.11

If plaintiffs can prove, as they have alleged, that defendants actively concealed the

information necessary to support plaintiffs’ cause of action so that plaintiffs could not, or should

not, have known of the existence of the cause of action until a date less than six months prior to

the date of their complaint, application of the fraudulent concealment exception will fully apply

and plaintiffs should be permitted to proceed regardless of when their claim actually accrued.

Whether plaintiffs can satisfy the exception is a question that involves disputed fact and is

subject to further discovery. Summary disposition on this ground is therefore inappropriate.

11

We recognize that this Court, in two unpublished opinions, has declined to import the

fraudulent concealment provision into MCL 600.6431. See Brewer v Central Michigan Univ Bd

of Trustees, unpublished opinion per curiam of the Court of Appeals, issued November 21, 2013

(Docket No. 312374); Zelek v State of Michigan, unpublished opinion per curiam of the Court of

Appeals, issued October 16, 2012 (Docket No. 305191). These opinions are not binding on this

Court, see MCR 7.215(C). Additionally, in both Brewer and Zelek, the panel’s conclusion that

the fraudulent concealment exception did not apply to toll the statutory notice period was

reached without recognition that the Legislature specifically imported the fraudulent

concealment exception into the statute of limitations provision of the CCA, or consideration of

the practical conflict created when the fraudulent concealment exception is applied to the

statutory limitations period without also being applied to the statutory notice period. Because

both cases also involved strikingly dissimilar factual situations, we find them unpersuasive.

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III. JURISDICTION OVER CITY DEFENDANTS

Next, state defendants argue that argue that the Court of Claims erred when it found that

it could exercise jurisdiction over claims brought against city defendants because emergency

managers are considered “state officers” under the CCA.12 We disagree.

“Jurisdiction is a court’s power to act and its authority to hear and decide a case.”

Riverview v Sibley Limestone, 270 Mich App 627, 636; 716 NW2d 615 (2006). “The Court of

Claims is created by statute and the scope of its subject-matter jurisdiction is explicit.”

O’Connell, 316 Mich App at 101 (quotation marks and citations omitted). “A challenge to the

jurisdiction of the Court of Claims presents a statutory question that is reviewed de novo as a

question of law.” Id. at 97 (quotation marks and citation omitted).

With MCL 600.6419(1)(a), the Legislature endowed the Court of Claims with exclusive

jurisdiction “[t]o hear and determine any claim or demand, statutory or constitutional . . . against

the state or any of its departments or officers notwithstanding another law that confers

jurisdiction of the case in the circuit court.” (Emphasis added.) In the same statutory subsection,

the Legislature specified that

[a]s used in this section, “the state or any of its departments or officers” means

this state or any state governing, legislative, or judicial body, department,

commission, board, institution, arm, or agency of the state, or an officer,

employee, or volunteer of this state or any governing, legislative, or judicial body,

department, commission, board, institution, arm, or agency of this state, acting, or

who reasonably believes that he or she is acting, within the scope of his or her

authority while engaged in or discharging a government function in the course of

his or her duties. [MCL 600.6419(7).]

The jurisdiction of the Court of Claims does not extend to local officials. Doan v Kellogg

Community College, 80 Mich App 316, 320; 263 NW2d 357 (1977).

Whether an emergency manager falls within the definition of state “officer” provided in

MCL 600.6419(7) is a question of statutory interpretation. When interpreting a statute, “[o]ur

duty is to ascertain and effectuate the intent behind the statute . . . from the language used in it.”

Attorney General v Flint City Council, 269 Mich App 209, 211-212; 713 NW2d 782 (2005).

12

In the lower court and in this Court on appeal, city defendants argue that in their official

capacities as emergency managers, they were state officers subject to the jurisdiction of the

Court of Claims under MCL 600.6149. However, state defendants argued below, and argue

again on appeal, that the Court of Claims lacks subject-matter jurisdiction over plaintiffs’ claims

against Earley and Ambrose because neither city defendant, in his official capacity, was a state

officer. Although neither party raises the issue of standing on appeal, we note that because an

official capacity suit against city defendants is, for practical purposes, a suit against the state,

Carlton v Dep’t of Corrections, 215 Mich App 490, 500-501; 546 NW2d 671 (1996), state

defendants have a significant interest in the outcome of plaintiffs’ case.

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“Undefined statutory terms must be given their plain and ordinary meanings, and it is proper to

consult a dictionary for definitions.” Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129

(2004). “When statutory language is unambiguous, we must presume that the Legislature

intended the meaning it clearly expressed and further construction is neither required nor

permitted.” Attorney General, 269 Mich App at 213 (quotation marks and citation omitted).

State defendants acknowledge that the Michigan Supreme Court has determined that the

question whether an official is a state officer in a particular circumstance is “governed by the

purpose of the act or clause in connection with which it is employed.” Schobert v Inter-Co

Drainage Bd of Tuscola, Sanilac & Lapeer Cos for White Creek No 2 Inter-Co Drain, 342 Mich

270, 282; 69 NW2d 814 (1955). State defendants assert that it is PA 436, the statute creating and

governing the office of an appointed emergency manager, that is the focus of this inquiry, and

devote substantial portions of their appellate briefs to pulling a distinction from “state officers”

out of the language of that Act. State defendants have either offered this Court a red herring or

confused an otherwise straightforward determination. The question is not, as state defendants

contend, whether the Legislature in passing PA 436 intended to make emergency managers state

officials. While PA 436 and its characterization of emergency managers may be relevant in

another context, the question presented here is one of jurisdiction, and it is the intent behind the

Legislature’s grant of jurisdiction to the Court of Claims, through MCL 600.6419 in particular,

that must direct this Court’s analysis. See Spectrum Health Hosp v Farm Bureau Mut Ins Co of

Mich, 492 Mich 503, 521; 821 NW2d 117 (2012) (“[T]he first step of statutory interpretation is

to review the language of the statute at issue, not that of another statute.”) Thus, in determining

whether claims against an emergency manager fall within the jurisdiction of the Court of Claims,

we begin by examining the plain language of MCL 600.6419(7).

This Court need not, and in fact may not, look past the CCA for a definition of “state

officer” as employed therein. “Where a statute supplies its own glossary, courts may not import

any other interpretation but must apply the meaning of the terms as expressly defined.” People v

Schultz, 246 Mich App 695, 703; 635 NW2d 491 (2001), citing Harder v Harder, 176 Mich App

589, 591; 440 NW2d 53 (1989). The Legislature has provided a definition of the term, which

includes “an officer, employee, or volunteer of this state or any governing, legislative, or judicial

body, department, commission, board, institution, arm, or agency of this state, acting, or who

reasonably believes that he or she is acting, within the scope of his or her authority while

engaged in or discharging a government function in the course of his or her duties,” and which

state defendants have not bothered to address. Regardless of whether emergency managers

might be considered “state officers” in any context outside of the CCA, city defendants clearly

fall within the Act’s own definition and, as intended, within the Court of Claims’ jurisdiction.

There is no dispute that city defendants made the decision to switch the city of Flint’s

water supply to the Flint River while acting within the scope of their official authority and in the

discharge of a government function. Further, there is no doubt that city defendants were acting,

at all times relevant to plaintiffs’ claims, as employees or officers of the State of Michigan and

its agencies. As the Court of Claims observed,

[a]n emergency manager is a creature of the Legislature with only the power and

authority granted by statute. [Kincaid, 311 Mich App at 87.] An emergency

manager is appointed by the governor following a determination by the governor

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that a local government is in a state of financial emergency. MCL

141.1546(1)(b); MCL 141.1549(1). The emergency manager serves at the

governor’s pleasure. MCL 141.1515(5)(d); MCL 141.1549(3)(d); Kincaid, 311

Mich App at 88. The emergency manager can be removed by the governor or by

the Legislature through the impeachment process. MCL 141.1549(3)(d) and

(6)(a). The state provides the financial compensation for the emergency manager.

MCL 141.1549(3)(e) and (f). All powers of the emergency manager are conferred

by the Legislature. MCL 141.1549(4) and (5); MCL 141.1550—MCL 141.1559;

Kincaid, 311 Mich App at 87. Those powers include powers not traditionally

within the scope of those granted municipal corporations. See MCL

141.1552(1)(a) – (ee). The Legislature conditioned the exercise of some of those

powers upon the approval of the governor or his or her designee or the state

treasurer. MCL 141.1552(1)(f), (x), (z) and (3); MCL 141.1555(1). The

Legislature has also subjected the emergency manager to various codes of

conduct otherwise applicable only to public servants, public officers and state

officers. MCL 141.1549(9). Through the various provisions within the act, the

state charges the emergency manager with the general task of restoring fiscal

stability to a local government placed in receivership—a task which protects and

benefits both the state and the local municipality and its inhabitants. The

emergency manager is statutorily obligated to create a financial and operating

plan for the local government that furthers specific goals set by the state and to

submit a copy of the plan to the state treasurer for the treasurer’s “regular[]

reexamin[ation].” MCL 141.1551(2). The emergency manager is also obligated

to report to the top elected officials of this state and to the state treasurer his or her

progress in restoring financial stability to the local government. MCL

141.1562(1) and (2). Under the totality of these circumstances, the core nature of

the emergency manager may be characterized as an administrative officer of state

government. [Mays, unpub op of the Court of Claims, at 15-16, quoting Collins v

City of Flint, unpublished opinion of the Court of Claims, issued August 25, 2016

(Docket No. 16-000115-MZ), pp 13-14.]13

We agree that the totality of the circumstances indicate that an emergency manager

operates as an administrative officer of the state.14 Further, it is beyond dispute that at a

13

Neither the Court of Claims opinion in this case nor the quoted opinion is binding on this

Court. However, we adopt the court’s accurate summary of the law as stated.

14

State defendants argue that this Court should find persuasive a recent opinion, Gulla v Snyder,

unpublished opinion of the Court of Claims, issued August 16, 2017 (Docket No. 16-000298-

MZ), in which the Court of Claims judge concluded that emergency managers are not state

officers for purposes of the CCA. This Court is not bound to follow the opinion of the Court of

Claims, which directly conflicts with the Court of Claims opinion at issue here. Further, we note

that the Court of Claims judge considering the issue in Gulla analyzed the issue according to the

provisions of PA 436, rather than the jurisdictional provision of the CCA; an erroneous task this

Court, as herein discussed, specifically disavows.

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minimum, an emergency manager must be characterized as an employee of the state. Although

the CCA does not provide a specific definition for “employee,” this Court may look to dictionary

definitions to “construe undefined statutory language according to common and approved

usage.” In re Casey Estate, 306 Mich App 252, 260; 856 NW2d 556 (2014). Black’s Law

Dictionary defines “employee” as “[s]omeone who works in the service of another person (the

employer) under an express or implied contract of hire, under which the employer has the right

to control the details of work performance.” Black’s Law Dictionary (10th ed). Emergency

managers, who are appointed by the governor, serve at the governor’s pleasure, are subject to

review by the state treasurer, and operate only within the authority granted by the state

government, easily fall within this definition. Indeed, our Court has recognized that political

appointees, like emergency managers here, serve as at-will employees of the government agency

that appointed them. See James v City of Burton, 221 Mich App 130, 133-134; 560 NW2d 668

(1997). An emergency manager, as an appointee of the state government, is an employee of the

state government. Claims against an emergency manager acting in his or her official capacity

therefore fall within the well-delineated subject-matter jurisdiction of the Court of Claims.

We note that if this Court were to accept state defendants’ suggestion that the Court must

consider whether PA 436 authorizes the Court of Claims to assume subject-matter jurisdiction

over claims against emergency managers, the result would be the same. State defendants argue

that PA 436 does not contemplate suits against emergency managers in the Court of Claims.

However, while PA 436 does not expressly authorize suits against emergency managers in the

Court of Claims, it specifically contemplates proceedings involving emergency managers in that

court. Under PA 436, an emergency manager is granted the express authority to bring suits in

the Court of Claims “to enforce compliance with any of his or her orders or any constitutional or

legislative mandates, or to restrain violations of any constitutional or legislative power or his or

her orders.” MCL 141.1552(1)(q). This authorization acknowledges the status of an emergency

manager as a state officer and is consistent with the CCA, which grants the Court of Claims

jurisdiction over all claims brought by the “state or any of its departments or officers against any

claimant.” MCL 600.6419(1)(b).

Because city defendants’ status as employees of the state during all times relevant to this

appeal satisfies the jurisdictional question, we need not address state defendants challenge to the

Court of Claims characterization of emergency managers as receivers for the state. However, we

believe that the analogy is quite apt, and provides additional support for the conclusion that

claims against an emergency manager fall within the subject-matter jurisdiction of the Court of

Claims. Under PA 436,15 the emergency managers’ relationship with a municipality is

specifically described as a “receivership.” MCL 141.1542(q) (“ ‘Receivership’ means the

process under this act by which a financial emergency is addressed through the appointment of

an emergency manager.”). According to MCL 141.1549(2),

Upon appointment, an emergency manager shall act for and in the place

and stead of the governing body and the office of chief administrative officer of

15

MCL 141.1541 et seq.

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the local government. The emergency manager shall have broad powers in

receivership to rectify the financial emergency and to assure the fiscal

accountability of the local government and the local government’s capacity to

provide or cause to be provided necessary governmental services essential to the

public health, safety, and welfare. [Emphasis added.]

Additionally, the powers and responsibilities delegated to an emergency manager under PA 436

mirror those of an appointed receiver:

A receiver is sometimes said to be the arm of the court, appointed to

receive and preserve the property of the parties to litigation and in some cases to

control and manage it for the persons or party who may be ultimately entitled

thereto. A receivership is primarily to preserve the property and not to dissipate

or dispose of it. [Westgate v Westgate, 294 Mich 88, 91; 292 NW 569 (1940)

(emphasis added).]

State defendants argue that emergency managers cannot be compared to court-appointed

receivers because unlike court-appointed receivers emergency managers are appointed to

represent the city rather than to act as neutral arbiters. State defendants mischaracterize the

relationship between emergency managers and the municipalities whose finances they are

appointed to oversee. In their appellate brief, city defendants aptly summarize the role of an

appointed emergency manager:

The concept behind emergency management is that the State needs to

appoint a neutral party to help eliminate a financial emergency because local

officials have proven (in the State’s view) unable to govern in a financially

responsible way. An [emergency manager]’s job is to create and implement a

financial plan that assures full payment to creditors while still conducting all

aspects of a municipality’s operations. Once the Governor agrees that the

emergency has been sustainably resolved, power passes from the neutral receiver

back to local officials.

City defendants’ characterization of emergency managers as neutral overseers is supported by

the provisions of PA 436. See MCL 141.1551(1)(a)-(b); MCL 141.1562(3); MCL 141.1543.

It has long been recognized that a receiver serves as the administrative arm or officer of

the authority exercising the power of appointment. See In re Guaranty Indemnity Co, 256 Mich

671, 673; 240 NW 78 (1932) (“Generally speaking a receiver is not an agent, except of the court

appointing him . . . He is merely a ministerial officer of the court, or, as he is sometimes called,

the hand or arm of the court.”); Arbor Farms, LLC v GeoStar Corp, 305 Mich App 374, 392-

393; 853 NW2d 421 (2014) (noting that a receiver is both an officer and an administrative arm of

the appointing court); Hofmeister v Randall, 124 Mich App 443, 445; 335 NW2d 65 (1983)

(explaining that “a receiver is the arm of the court, appointed to receive and preserve the

litigating parties’ property”); Cohen v Bologna, 52 Mich App 149, 151; 216 NW2d 586 (1974)

(explaining that a receiver “function[s] as officer of the court” that appointed him). Again, the

definition of “the state or any of its departments or officers” for purposes of Court of Claims

jurisdiction includes any “arm, or agency of the state,” or any officer or employee of an “arm, or

-22-

agency of this state.” MCL 600.6419(7). The Court of Claims did not err when it concluded that

city defendants, in their official capacities as emergency managers, operated as arms of the state

during all times relevant to the instant suit.

State defendants argue that the characterization of emergency managers as ministerial

arms or officers of the state “directly contradicts” this Court’s holding in Kincaid, 311 Mich App

76, where we concluded that an act of an emergency manager cannot be considered an act of the

Governor. In Kincaid, the Court considered whether an emergency manager could exercise

power textually granted to the Governor on a theory that an act of the emergency manager, as a

gubernatorial appointee, was an act of the Governor himself. Id. at 87-88. This Court rejected

the city’s argument that an emergency manager acts on behalf of the Governor after considering

the role of an emergency manager as described in PA 436. Id. at 88. Specifically, this Court

held that PA 436 in no way authorized the Governor to delegate his or her authority to an

emergency manager, who could act “only on behalf of numerous local officials” and whose

“authority is limited to the local level.” Id. State defendants argue that this holding precludes a

finding that emergency managers are arms or agents of the state. However, state defendants

divorce this Court’s holding from its context. The issue in Kincaid was not whether an

emergency manager is a state official subject to the subject-matter jurisdiction of the Court of

Claims, but whether the range of power granted to an emergency manager includes the

governor’s power to ratify. While the Kincaid Court held that emergency managers do not

inherit all of the powers of the governor, the Court did not hold that emergency managers cannot

act as agents of the state. The fact that an emergency manager is not authorized to act as the

Governor does not mean that an emergency manager is not authorized to act as an agent of the

Governor.

More importantly, the Kincaid holding in no way precludes a finding that emergency

managers are employees of the state subject to the jurisdiction of the Court of Claims under

MCL 600.6419, regardless of whether they are also considered agents acting on behalf of the

Governor. For these reasons, we hold that the Court of Claims did not err when it concluded that

plaintiffs’ claims against city defendants, sued in their official capacities as employees and

administrative officers of the state, are within the subject-matter jurisdiction of the Court of

Claims.

IV. INJURY TO BODILY INTEGRITY

Next, defendants argue that the Court of Claims erred when it concluded that plaintiffs

had pled facts that, if proved true, established a constitutional violation of plaintiffs’ substantive

due process right to bodily integrity for which a judicially inferred damages remedy is

appropriate. We disagree.

Defendants moved for summary disposition of plaintiffs’ injury to bodily integrity claims

under MCR 2.116(C)(8). ). Summary disposition is proper under MCR 2.116(C)(8) if the

opposing party has failed to state a claim on which relief can be granted. Henry v Dow Chem

Co, 473 Mich 63, 71; 701 NW2d 684 (2005). “A motion for summary disposition under MCR

2.116(C)(8) tests the legal sufficiency of the complaint and allows consideration of only the

pleadings.” MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). “For purposes

of reviewing a motion for summary disposition under MCR 2.116(C)(8), all well-pleaded factual

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allegations are accepted as true and construed in a light most favorable to the nonmovant.”

Ernsting v Ave Maria College, 274 Mich App 506, 509; 736 NW2d 574 (2007). A motion under

MCR 2.116(C)(8) may only be granted “where the claims alleged are so clearly unenforceable as

a matter of law that no factual development could possibly justify recovery.” Adair v Michigan,

470 Mich 105, 119; 680 NW2d 386 (2004) quotation marks and citation omitted). This Court

reviews constitutional questions de novo. Travelers Ins Co v Detroit Edison Co, 465 Mich 185,

205; 631 NW2d 733 (2001).

A. GENERAL PRINCIPLES OF CONSTITUTIONAL TORTS

“Typically, a constitutional tort claim arises when a governmental employee, exercising

discretionary powers, violates constitutional rights personal to a plaintiff.” Duncan v State, 284

Mich App 246, 270; 774 NW2d 89 (2009), rev’d on other grounds 486 Mich 1071 (2010). The

Michigan Supreme Court has held that “[a] claim for damages against the state arising from a

violation by the state of the Michigan Constitution may be recognized in appropriate cases.”

Smith, 428 Mich at 544-546. “The first step in recognizing a damage remedy for injury

consequent to a violation of our Michigan Constitution is, obviously, to establish the

constitutional violation itself.” Marlin v Detroit (After Remand), 205 Mich App 335, 338; 517

NW2d 305 (1994) (quotation marks and citation omitted).

Following Smith, this Court held that to establish a violation of the Constitution a

plaintiff must show that the state action at issue: (1) deprived the plaintiff of a substantive

constitutional right, and (2) was executed pursuant to an official custom or policy. Carlton, 215

Mich App at 504, citing Monell v New York City Dep’t of Social Servs, 436 US 658, 694; 98 S Ct

2018; 56 L Ed 2d 611 (1978). The Court further directed that “[t]he policy or custom must be

the moving force behind the constitutional violation in order to establish liability.” Id. at 505.

We note at the outset that the Court of Claims articulated the proper test before engaging

in a thorough analysis of the viability of plaintiffs’ constitutional tort claim for injury to bodily

integrity. However, we must review the matter de novo, giving no deference to the lower court

decision, in order to determine whether defendants were entitled to judgment as a matter of law.

Scalise v Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d 858 (2005). Thus, before we

may decide whether it is appropriate to recognize a cause of action under the Due Process Clause

of the Michigan Constitution for violation of plaintiffs’ rights to bodily integrity, we must first

determine whether plaintiffs have alleged facts that, if proved true, are sufficient to establish

such a violation.

B. SUBSTANTIVE RIGHT TO BODILY INTEGRITY

The Due Process Clause of the Michigan Constitution provides, in pertinent part, that

“[n]o person shall . . . be deprived of life, liberty or property, without due process of law. . . .”

Const 1963, art 1, § 17. “The due process guarantee of the Michigan Constitution is coextensive

with its federal counterpart.” Grimes v Van Hook-Williams, 302 Mich App 521, 530; 839 NW2d

237 (2013). “The doctrine of substantive due process protects unenumerated fundamental rights

and liberties under the Due Process Clause of the Fourteenth Amendment.” Gallagher v City of

Clayton, 699 F3d 1013, 1017 (CA 8, 2012), citing Washington v Glucksberg, 521 US 702, 720;

117 S Ct 2258; 138 L Ed 2d 772 (1997).

-24-

“The substantive component of due process encompasses, among other things, an

individual’s right to bodily integrity free from unjustifiable government interference.” Lombardi

v Whitman, 485 F3d 73, 79 (CA 2, 2007); see Glucksberg, 521 US at 720 (“In a long line of

cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the

“liberty” specially protected by the Due Process Clause includes the right[] . . . to bodily

integrity[.]”); Alton v Texas A&M University, 168 F3d 196, 199 (CA 5, 1999) (“[T]he right to be

free of state-occasioned damage to a person’s bodily integrity is protected by the fourteenth

amendment guarantee of due process.” (Quotation marks and citation omitted.)). As early as

1891, the United States Supreme Court recognized that “[n]o right is held more sacred, or is

more carefully guarded . . . than the right of every individual to the possession and control of his

own person, free from all restraint or interference of others, unless by clear and unquestionable

authority of law.” Union Pac R Co v Botsford, 141 US 250, 251; 11 S Ct 1000, 1001; 35 L Ed

734 (1891). The Court has since recognized a liberty interest in bodily integrity in circumstances

involving such things as abortions, Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147

(1973), end-of-life decisions, Cruzan v Dir, Missouri Dep’t of Health, 497 US 261; 110 S Ct

2841; 111 L Ed 2d 224 (1990), birth control decisions, Griswold v Connecticut, 381 US 479; 85

S Ct 1678; 14 L Ed 2d 510 (1965), corporal punishment, Ingraham v Wright, 430 US 651, 672;

97 S Ct 1401; 51 L Ed 2d 711 (1977), and instances where individuals are subject to dangerous

or invasive procedures where their personal liberty is being restrained, see, e.g., Rochin v

California, 342 US 165; 72 S Ct 205; 96 L Ed 183 (1952) (determining that a detainee’s bodily

integrity was violated when police ordered doctors to pump his stomach to obtain evidence of

drugs); Screws v United States, 325 US 91; 65 S Ct 1031; 89 L Ed 1495 (1945) (holding that an

individual’s bodily integrity was violated where a citizen was beaten to death while in police

custody).

Violation of the right to bodily integrity involves “an egregious, nonconsensual entry into

the body which was an exercise of power without any legitimate governmental objective.”

Rogers v Little Rock, Arkansas, 152 F3d 790, 797 (CA 8, 1998), citing Co of Sacramento v

Lewis, 523 US 833; 118 S Ct 1708; 140 L Ed 2d 1043 (1998). Here, plaintiffs clearly allege a

nonconsensual entry of contaminated and toxic water into their bodies as a direct result of

defendants’ decision to pump water from the Flint River into their homes and defendants’

subsequent affirmative act of physically switching the water source. Furthermore, we can

conceive of no legitimate governmental objective for this violation of plaintiffs’ bodily integrity.

Indeed, defendants have not even attempted to provide one. However, to survive dismissal, the

alleged “violation of the right to bodily integrity must be so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience.” Villanueva v City of Scottsbluff, 779 F3d

507, 513 (CA 8, 2015) (quotation marks and citation omitted); see also Mettler Walloon, LLC v

Melrose Twp, 281 Mich App 184, 198; 761 NW2d 293 (2008) (explaining that in the context of

individual governmental actions or actors, to establish a substantive due process violation, “the

governmental conduct must be so arbitrary and capricious as to shock the conscience.”).

“Conduct that is merely negligent does not shock the conscience, but ‘conduct intended

to injure in some way unjustifiable by any government interest is the sort of official action most

likely to rise to the conscience-shocking level.’ ” Villaneuva, 779 F3d at 513, quoting County of

Sacramento v Lewis, 523 US 833, 850; 118 S Ct 1708; 140 L Ed 2d 1043 (1998). At a

minimum, proof of deliberate indifference is required. McClendon v City of Columbia, 305 F3d

314, 326 (CA 5, 2002). A state actor’s failure to alleviate “a significant risk that he should have

-25-

perceived but did not,” does not rise to the level of deliberate indifference. Farmer v Brennan,

511 US 825, 837; 114 S Ct 1970; 128 L Ed 2d 811 (1994). To act with deliberate indifference, a

state actor must “know [] of and disregard[] an excessive risk to [the complainant’s] health or

safety.” Ewolski v City of Brunswick, 287 F3d 492, 513 (CA 6, 2002), quoting Farmer, 511 US

at 837. “The case law [] recognizes official conduct may be more egregious in circumstances

allowing for deliberation . . . than in circumstances calling for quick decisions.” Williams v

Berney, 519 F3d 1216 (CA 10, 2008).

We agree with the Court of Claims’ conclusion that “[s]uch conduct on the part of the

state actors, and especially the allegedly intentional poisoning of the water users of Flint, if true,

may be fairly characterized as being so outrageous as to be ‘truly conscience shocking.’ ” Mays,

unpub op at 28. Plaintiffs allege that defendants made the decision to switch the city of Flint’s

water source to the Flint River after a period of deliberation, despite knowledge of the hazardous

properties of the water. Additionally, plaintiffs allege that defendants neglected to conduct any

additional scientific assessments of the suitability of the Flint Water for use and consumption

before making the switch, which was conducted with knowledge that Flint’s water treatment

system was inadequate. According to plaintiffs’ complaint, various state actors intentionally

concealed scientific data and made false assurances to the public regarding the safety of the Flint

River water even after they had received information suggesting that the water supply directed to

plaintiffs’ homes was contaminated with Legionella bacteria and dangerously high levels of toxic

lead. At the very least, plaintiffs’ allegations are sufficient to support a finding of deliberate

indifference on the part of the governmental actors involved here.

Plaintiffs have alleged facts sufficient to support a constitutional violation by defendants

of plaintiffs’ right to bodily integrity. 16 We therefore proceed to consider whether the

deprivation of rights resulted from implantation of an official governmental custom or policy.

C. OFFICIAL CUSTOM OR POLICY

“This Court has held that liability for a violation of the state constitution should be

imposed on the state only where the state’s liability would, but for the Eleventh Amendment,

16

Defendants ask this Court to rely on an extrajurisdictional opinion, Coshow v City of

Escondido, 132 Cal App 4th 687, 709-710; 34 Cal Rptr 3d 19 (2005), as support for the

conclusion that plaintiffs’ right to bodily integrity is not implicated in the context of public

drinking water because the Due Process Clause does not guarantee a right to contaminant-free

drinking water. While the California court noted that “the right to bodily integrity is not

coextensive with the right to be free from the introduction of a contaminated substance in the

public drinking water,” id. at 709, it did not hold that the introduction of contaminated

substances could never form the basis for an injury to bodily integrity claim. Additionally, this

Court finds Coshow unpersuasive as factually dissimilar. The alleged “contaminant” in that case

was fluoride, which is frequently introduced into water systems. Coshow did not address

whether substantive due process protections might be implicated in the case of intentional

introduction of known contaminants by governmental officials, and its reasoning is inapplicable

here.

-26-

render it liable under the standard for local governments as set forth in 42 USC 1983 and

articulated in [Monell].” Reid v Michigan, 239 Mich App 621, 628; 609 NW2d 215 (2000).

Thus, the state and its officials will only be held liable for violation of the state constitution “in

cases where a state ‘custom or policy’ mandated the official or employee’s actions.” Carlton,

215 Mich App at 505, quoting Smith, 428 Mich at 642 (BOYLE, J., concurring). Official

governmental policy includes “the decisions of a government’s lawmakers” and “the acts of its

policymaking officials.” Johnson v VanderKooi, 319 Mich App 589, ___; 903 NW2d 843

(2017). See also Monell, 436 US at 694 (stating that a government agency’s custom or policy

may be “made by its lawmakers or by those whose acts or edicts may fairly be said to represent

official policy.”) A “single decision” by a policymaker or governing body “unquestionably

constitutes an act of official government policy,” regardless of whether “that body had taken

similar action in the past or intended to do so in the future.” Pembaur v Cincinnati, 475 US 469,

480; 106 S Ct 1292; 89 L Ed 2d 452 (1986). In Pembaur, the United States Supreme Court

explained:

To be sure, “official policy” often refers to formal rules or understandings—often

but not always committed to writing—that are intended to, and do, establish fixed

plans of action to be followed under similar circumstances consistently and over

time. That was the case in Monell itself, which involved a written rule requiring

pregnant employees to take unpaid leaves of absence before such leaves were

medically necessary. However . . . a government frequently chooses a course of

action tailored to a particular situation and not intended to control decisions in

later situations. If the decision to adopt that particular course of action is properly

made by that government’s authorized decisionmakers, it surely represents an act

of official government “policy” as that term is commonly understood. More

importantly, where action is directed by those who establish governmental policy,

the [government] is equally responsible whether that action is to be taken only

once or to be taken repeatedly. [Id. at 480-481 (citations omitted).]

The Court clarified that not all decisions subject governmental officers to liability. Id. at 481.

Rather, it is “where—and only where—a deliberate choice to follow a course of action is made

from among various alternatives by the official or officials responsible for establishing final

policy with respect to the subject matter in question.” Id. at 483.

The facts of this case as plaintiffs allege, if true, are sufficient to support the conclusion

that their constitutional claim of injury to bodily integrity arose from actions taken by state actors

pursuant to governmental policy. Plaintiffs allege that various aspects of Flint’s participation in

the KWA project and the interim plan to provide Flint residents with Flint River water during the

transition were approved and implemented by the Governor, the State Treasurer, the emergency

managers and other state officials, including officials employed by the DEQ. These allegations

implicate state and city defendants, state officers and authorized decision-makers, in the adoption

of particular courses of action that ultimately resulted in violations of plaintiffs’ substantial

rights. Likewise, as the Court of Claims observed,

the alleged decisions of various state officials to defend the original decision to

switch to using the Flint River as a water source, to resist a return to the Detroit

water distribution system, to downplay and discredit accurate information

-27-

gathered by outside experts regarding lead in the water supply and elevated lead

levels in the bloodstreams of Flint’s children, and to continue to reassure the Flint

water users that the water was safe and not contaminated with lead or Legionella

bacteria, played a role in the alleged violation of plaintiffs’ constitutional rights.

[Mays, unpub op at 27.]

Plaintiffs allege a coordinated effort involving various state officials, including multiple high-

level DEQ employees, to mislead the public in an attempt to cover up the harm caused by the

water switch. If these allegations are proven true, they also support the conclusion that

government actors, acting in their official roles as policymakers, considered a range of options

and made a deliberate choice to orchestrate an effort to conceal the awful consequences of the

water switch, likely exposing plaintiffs and other water users to unnecessary further harm. The

allegations in plaintiffs’ complaint are therefore sufficient to establish a violation of

constitutional rights arising from the implementation of official policy.

D. AVAILABILITY OF DAMAGE REMEDY

Because plaintiffs’ allegations, if proven true, are sufficient to sustain a claim for injury

to bodily integrity, we must determine whether this case is one for which it is appropriate to

recognize a damages remedy for the state’s violation of art 1, § 17 of the Michigan Constitution.

We conclude that this is such a case.

As our appellate courts have done, the Court of Claims correctly addressed the propriety

of an inferred damages remedy under the multi-factor balancing test first articulated in a

concurring opinion by Justice BOYLE in Smith, 428 Mich at 648 ) (BOYLE, J., concurring). See

e.g., Jones, 462 Mich at 336-337; Reid, 239 Mich App at 628-629. To apply the test, we consider

the weight of various factors including, as relevant here, (1) the existence and clarity of the

constitutional violation itself, (2) the degree of specificity of the constitutional protection, (3)

support for the propriety of a judicially inferred damage remedy in any “text, history, and

previous interpretations of the specific provision,” (4) “the availability of another remedy,” and

(5) “various other factors” militating for or against a judicially inferred damage remedy. See

Jones, 462 Mich at 648-652 (BOYLE, J., concurring).

We have already determined that plaintiffs have set forth allegations to establish a clear

violation of the Michigan Constitution. Like the Court of Claims, we conclude that the first

factor weighs in favor of a judicially inferred damages remedy. However, Justice BOYLE rightly

opined that the protections of the Due Process Clause are not as “clear cut” as specific

protections found elsewhere in the Constitution. Michigan appellate courts have acknowledged

that the substantive component of the federal Due Process Clause protects an individual’s right to

bodily integrity, see e.g., Sierb, 456 Mich at 527, 529; Fortune v City of Detroit Pub Sch,

unpublished opinion per curiam of the Court of Appeals, issued October 12, 2004 (Docket No.

248306), p 2, but this Court is unaware of any Michigan appellate decision expressly recognizing

the same protection under the Due Process Clause of the Michigan Constitution or a stand-alone

constitutional tort for violation of the right to bodily integrity. Although our Due Process Clause

is interpreted coextensively with the Due Process Clause of the United States Constitution,

Cummins v Robinson Twp, 283 Mich App 667, 700-701; 770 NW2d 421 (2009), we do not

believe that the federal courts’ application and interpretation of the right to bodily integrity

-28-

provides an appropriate degree of claim specificity under our own prior jurisprudence. We

therefore conclude that the second and third factors weigh slightly against recognition of a

damages remedy for the injuries alleged.

In considering the fourth factor, “the availability of an alternate remedy,” we note that we

agree with the Court of Claims conclusion that the question posed is whether plaintiffs have any

available alternate remedies against these specific defendants. See Jones, 462 Mich at 335-337

(contrasting claims against the state and state officials with claims against municipalities and

individual municipal employees). Thus, the fact that plaintiffs might be pursuing causes of

action in another court, at this stage of the proceedings, is largely irrelevant. We proceed to

determine whether plaintiffs are presented with alternative avenues for pursuit of remedies for

the violations alleged.

It seems clear that a judicially imposed damages remedy for the alleged constitutional

violation is the only available avenue for obtaining monetary relief. A suit for monetary

damages under 42 USC 1983 for violation of rights granted under the federal constitution or a

federal statute cannot be maintained in any court against a state, a state agency, or a state official

sued in his official capacity because the Eleventh Amendment affords the state and its agencies

immunity from such liability. Howlett v Rose, 496 US 356, 365; 110 S Ct 2430; 110 L Ed 2d

332 (1990); Bay Mills Indian Community v State of Michigan, 244 Mich App 739, 749; 626

NW2d 169 (2001). The state and its officials also enjoy broad immunity from liability under

state law. “[T]he elective or highest appointive executive official of all levels of government” is

absolutely immune from “tort liability for injuries to persons or damages to property if he or she

is acting within the scope of his or her . . . executive authority.” MCL 691.1407(5).17 It is

undisputed that this applies to the Governor, Duncan, 284 Mich App at 271-272, and for the

reasons articulated by the Court of Claims, we conclude that it also applies to city defendants for

actions taken in their official roles as emergency managers, see Mays, unpub op at 37-40.

Absent the application of a statutory exception, state agencies are also “immune from tort

liability if the governmental agency is engaged in the exercise or discharge of a governmental

function.” MCL 691.1407(1); Duncan, 284 Mich App at 266-267. Governmental employees

acting within the scope of their authority are immune from tort liability unless their actions

constitute gross negligence, MCL 691.1407(2), and even if governmental employees are found

liable for gross negligence, the state may not be held vicariously liable, Malcolm v East Detroit,

437 Mich 132; 468 NW2d 479 (1991). Further, there is no exception to governmental immunity

for intentional torts committed by governmental employees exercising their governmental

authority, Genesee Co Drain Comm’r v Genesee Co, 309 Mich App at 328, and governmental

employers may not be held liable for the intentional tortious acts of their employees, Payton v

Detroit, 211 Mich App 375, 393; 536 NW2d 233 (1995).

17

MCL 141.1560(1) of the Local Financial Stability and Choice Act specifically grants

emergency managers immunity from liability as provided in MCL 691.1407, which grants

complete immunity to “the highest elective or appointive executive official of all levels of

government.”

-29-

We have already determined that plaintiffs’ alleged constitutional violations occurred as a

result of policy implementation by defendants in their official capacities. Like the Court of

Claims, we hold that based on the aforementioned principles, ‘the state, its agencies, and the

Governor and former emergency managers acting in an official capacity, are not ‘persons’ under

42 USC 1983 and enjoy sovereign immunity under the Eleventh Amendment and statutory

immunity under MCL 691.1407 from common law claims [and] plaintiffs have no alternative

recourse to enforce their respective rights against them.” Mays, unpub op at 442, citing Jones,

462 Mich at 335-337.

Defendants argue for the first time on appeal that plaintiffs constitutional tort claims,

arising from plaintiffs’ alleged exposure to toxic drinking water, may be vindicated under the

federal safe drinking water act (SDWA), 42 USC 300f et seq., and the Michigan safe drinking

water act (MSDWA), MCL 325.1001 et seq. Defendants do not cite specific provisions of the

statutes to support their argument. Generally, this Court will not address issues that were not

raised in or addressed by the trial court, Northland Wheels Roller Skating Center, Inc v Detroit

Free Press, 213 Mich App 317, 330; 539 NW2d 774 (1995), or those that are insufficiently

briefed, Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256, 265; 739 NW2d

121 (2007). However, we would note that while the SDWA contains a citizen-suit allowing for a

private action against any person violating its terms, the statutory scheme provides for injunctive

relief only. Boler v Earley, 865 F3d 391, 405-406 (CA 6, 2017), citing 42 USC 300j-8. The

MSDWA, as defendants concede, does not contain a citizen-suit provision.

Contrary to defendants’ assertion, the SDWA and its Michigan counterpart do not

provide a legislative scheme for vindication of the constitutional violations alleged that would

“militate against a judicially inferred damage remedy” under Jones, 462 Mich at 337. Indeed, in

a related federal case, the Sixth Circuit Court of Appeals considered whether Congress intended

for the SDWA to preclude remedies for constitutional violations, and concluded that it did not.

Boler, 865 F3d at 409. The Court explained:

Under some circumstances, actions that violate the SDWA may also

violate the . . . Due Process Clause. The Defendants argue that this is necessarily

the case, and that the Plaintiffs’ [constitutional] claims could not be pursued

without showing a violation of the SDWA. But as noted, that is often not the

case, particularly where the SDWA does not even regulate a contaminant harmful

to public drinking water users. The contours of the rights and protections of the

SDWA and those arising under the Constitution, and a plaintiff’s ability to show

violations of each, are “not . . . wholly congruent.” This further supports the

conclusion that Congress did not intend to foreclose [constitutional claims under §

1983] by enacting the SDWA. [Id. (citation omitted).]

Additionally, neither the SDWA nor the MSDWA address the conduct at issue in this

case, which includes knowing and intentional perpetuation of exposure to contaminated water, as

well as fraudulent concealment of the hazardous consequences faced by individuals who used or

consumed the water. These statutes therefore do not provide an alternative remedy for plaintiffs’

claim of injury to bodily integrity.

-30-

We would here note that plaintiffs seek injunctive relief against several of the named

defendants in a related federal court action. Plaintiffs’ complaint in that action indicates that

plaintiffs seek “prospective relief only” against the Governor and the state, but describes the

equitable relief sought as an order “to remediate the harm caused by defendants [sic]

unconstitutional conduct including repairs or [sic] property, [and] establishment of as [sic]

medical monitoring fund . . . .” Plaintiffs also seek an award of compensatory and punitive

damages. The “availability” of these remedies remains to be seen and, as previously noted, the

fact that plaintiffs seek alternative remedies does not affect our decision regarding the

availability of alternative remedies. We will not opine on the merits of plaintiffs’ federal cause

of action. However, we agree with the Court of Claims’ observation that “[d]evelpments in that

and other Flint Water Crisis litigation, including the extent to which any ‘equitable’ relief

awarded may essentially equate to an award of monetary damages, may impact this Court’s

future conclusions both with regard to the availability of alternative remedies and other matters,

including remedies, if any, that may be appropriate in this action.” Mays, unpub op at 35.

Defendants argue that this fourth factor must be considered dispositive, and that the

availability of any other remedy should foreclose the possibility of a judicially inferred damage

remedy. Although the Supreme Court in Jones, 462 Mich at 337, stated that “Smith only

recognized a narrow remedy against the state on the basis of the unavailability of any other

remedy,” we agree with the Court of Claims’ conclusion that the Jones Court’s use of the word

“only” referenced the sentence that followed, distinguishing claims against the state and

specifically limiting the Court’s holding to cases involving a municipality or an individual

defendant. Mays, unpub op at 32; see Jones, 462 Mich at 337. In Smith, Justice BOYLE

described the availability of an alternative remedy only as a “special factor[] counseling

hesitation, . . . which militate[s] against a judicially inferred damage remedy.” Smith, 428 Mich

at 647 (BOYLE, J., concurring). We therefore decline to hold that the availability of an alternative

remedy acts as a complete bar to a judicially inferred damage remedy. However, given the

cautionary nature of Justice BOYLE’s language, we conclude that this factor, if satisfied, must be

strongly weighted against the propriety of an inferred damages remedy.

Finally, we agree with the Court of Claims’ conclusion that it is appropriate to give

significant weight “to the degree of outrageousness of the state actor’s conduct as alleged by

plaintiffs.” Mays, unpub op at 43. If plaintiffs’ allegations are proven true, “various state actors

allegedly intentionally concealed data and made false statements in an attempt to downplay the

health dangers posed by using Flint’s tap water, despite possessing scientific data and actual

knowledge that the water supply reaching the taps of Flint water users was contaminated with

Legionella bacteria and dangerously high levels of toxic lead.” Id. We agree that the egregious

nature of defendants’ alleged constitutional violations weighs considerably in favor of

recognizing a remedy.

Based on the totality if the circumstances presented, this Court holds that at this stage of

the proceedings, it is appropriate to recognize a judicially inferred damage remedy for the

injuries here alleged. Summary disposition of plaintiffs’ injury to bodily integrity claim is

therefore inappropriate.

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V. STATE-CREATED DANGER

On cross-appeal, plaintiffs argue that the Court of Claims erred when it granted

defendants’ motion for summary disposition of plaintiffs’ constitutional claims under the state-

created danger doctrine. We disagree.

This Court has never before considered whether a cause of action for state-created danger

is cognizable under Michigan law. However, plaintiffs assert that this Court may recognize such

a cause of action arising from “the broad protection of the Due Process Clause of the Michigan

Constitution.” The Due Process Clause of the Michigan Constitution commands that “[n]o

person shall be . . . deprived of life, liberty or property, without due process of law[.]” Const

1963, art 1, § 17. This constitutional provision is nearly identical to the Due Process Clause of

the United States Constitution, see US Const Am XIV, § 1, and “[t]he due process guarantee of

the Michigan Constitution is coextensive with its federal counterpart.” Grimes, 302 Mich App at

530. The substantive component of the due process guarantee “ ‘provides heightened protection

against government interference with certain fundamental rights and liberty interests.’ ” Id. at

531, quoting Glucksberg, 521 US at 720. As the Court of Claims aptly explained, “[s]ubstantive

due process protects the individual from arbitrary and abusive exercises of government power;

certain fundamental rights cannot be infringed upon regardless of the fairness of the procedures

used to implement them.” Mays, unpub op at 20, citing Sierb, 456 Mich at 523. However, in

general, “the due process clause does not require a state to protect its citizens’ lives, liberty and

property against invasion by private actors . . . [or] require a state to guarantee a minimum level

of safety and security.” Markis v Grosse Pointe Park, 180 Mich App 545, 554; 448 NW2d 352

(1989). Our Courts have been reluctant to broaden the protections of the Due Process Clause

without Legislative guidance. Sierb, 456 Mich at 531-532; Collins v Harker Heights, 503 US

115, 125; 112 S Ct 1061; 117 L Ed 2d 261 (1992) (warning against expansion of “the concept of

substantive due process because guideposts for responsible decisionmaking in this unchartered

area are scarce and open-ended.”).

Plaintiffs ask this Court to recognize and allow plaintiffs to pursue a cause of action

under the so-called state-created danger theory, first recognized by the United States Supreme

Court in DeShaney v Winnebago Co Dep’t of Social Services, 489 US 189; 109 S Ct 998; 103 L

Ed 2d 249 (1989). As the Court of Claims noted, “the very name of the theory, i.e. state-created

danger, facially suggests that it could implicate what happened in Flint[.]” However, the

moniker “state-created danger” is somewhat misleading. The doctrine has been applied in all

contexts as a narrow exception to the general rule that while the state may be held liable under

the Due Process Clause for its own actions, the state has no affirmative obligation to protect

people from each other. In DeShaney, the Court considered whether a minor who had been

beaten by his father had been deprived of a due process liberty interest by state social workers

who failed to remove the minor from his father’s custody despite receiving complaints of abuse.

Id. at 191. After noting that the Due Process Clause of the United States Constitution imposes

no affirmative duty on the state to protect individuals from private violence, the Court

recognized a necessary exception to this general rule in cases where the state has undertaken

some responsibility for an individual’s care and wellbeing, or deprived an individual of the

freedom to care for himself:

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[W]hen the State takes a person into its custody and holds him there against his

will, the Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being. The rationale for this

principle is simple enough: when the State by the affirmative exercise of its power

so restrains an individual’s liberty that it renders him unable to care for himself,

and at the same time fails to provide for his basic human needs—e.g., food,

clothing, shelter, medical care, and reasonable safety—it transgresses the

substantive limits on state action set by the Eighth Amendment and the Due

Process Clause. The affirmative duty to protect arises not from the State’s

knowledge of the individual's predicament or from its expressions of intent to

help him, but from the limitation which it has imposed on his freedom to act on

his own behalf. In the substantive due process analysis, it is the State’s

affirmative act of restraining the individual’s freedom to act on his own behalf—

through incarceration, institutionalization, or other similar restraint of personal

liberty—which is the “deprivation of liberty” triggering the protections of the

Due Process Clause, not its failure to act to protect his liberty interests against

harms inflicted by other means. [Id. at 199-201 (citations omitted; emphasis

added).]

The Court explained that it is only in “certain limited circumstances [that] the

Constitution imposes on the State affirmative duties of care and protection with respect to

particular individuals” acting other than on behalf of the state. Id. at 198. Applying the

foregoing principles to the facts in that case, the DeShaney Court found no due process violation

by the state because the minor’s injuries were sustained while he was in his father’s custody,

rather than in the custody of the state, and the danger of abuse had not been made greater by any

affirmative action of the state. Id. at 201.

Although the United States Supreme Court did not explicitly adopt a cause of action for

“state-created danger,” various Federal appellate courts have relied on the Court’s language to

support a constitutional claim for state-created danger under 42 USC 1983 and the Due Process

Clause of the United States Constitution. McClendon, 305 F3d at 330 (acknowledging that

various federal circuit courts have “found a denial of due process when the state created the . . .

dangers faced by an individual”) (quotation marks and citation omitted); See also TD v Patton,

868 F3d 1209, 1221-1222 (CA 10, 2017); Kennedy v Ridgefield, 439 F3d 1055, 1061-1062 (CA

9, 2006); Bright v Westmoreland Co, 443 F3d 276, 280-282 (CA 3, 2006); Pena v DePrisco,

432 F 3d 98, 108-109 (CA 2, 2005); Gregory v City of Rogers, Arkansas, 974 F2d 1006, 1009-

1010 (CA 8, 1992); but see Doe v Columbia-Brazoria Independent Sch Dist, 855 F3d 681, 688-

689 (CA 5, 2017) (noting that a “state-created danger” exception has not yet been recognized in

the Fifth Circuit).

According to the principles announced by the United States Supreme Court in DeShaney,

the state-created danger exception applies in situations where an individual in the physical

custody of the state, by incarceration or institutionalization or some similar restraint of liberty,

suffers harm from third-party violence resulting from an affirmative action of the state to create

or make the individual more vulnerable to a danger of violence. So the state-created danger

theory arose, and so it has been consistently applied. Although the elements of a state-created

danger cause of action vary slightly between federal circuits, courts consistently require some

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third-party, nongovernmental harm, either facilitated by or made more likely by an affirmative

action of the state. See, e.g., Patton, 868 F3d at 1221-1222 (recognizing a constitutional

violation when a “state actor affirmatively act[s] to create or increase[] a plaintiffs’ vulnerability

to danger from private violence”); Gray v Univ of Colorado Hosp Authority, 672 F3d 909, 921

(CA 10, 2012) (describing the state-created danger theory as a “narrow exception, which applies

only when a state actor affirmatively acts to create, or increase[] a plaintiff’s vulnerability to,

danger from private violence.”); Kneipp v Tedder, 95 F3d 1199, 1203 (CA 3, 1996) (noting that a

“third party’s crime” is an element common to “cases predicating constitutional liability on a

state-created danger theory.”). Indeed, most federal appellate courts have adopted a test

substantially similar to the one employed by the Sixth Circuit Court of Appeals, which

enumerates the elements of a state-created danger cause of action as follows:

To show a state-created danger, plaintiff must show: 1) an affirmative act

by the state which either created or increased the risk that the plaintiff would be

exposed to an act of violence by a third party; 2) a special danger to the plaintiff

wherein the state’s actions placed the plaintiff specifically at risk, as distinguished

from a risk that affects the public at large; and 3) the state knew or should have

known that its actions specifically endangered the plaintiff. [Cartwright v City of

Marine City, 336 F3d 487, 493 (CA 6, 2003).]

Additionally, the Michigan Court of Appeals has applied the test articulated by the Sixth Circuit

to claims brought under 42 USC 1983. See Manuel v Gill, 270 Mich App 355, 365-366; 716

NW2d 291 (2006), aff’d in part and rev’d in part 481 Mich 637 (2008); Dean v Childs, 262 Mich

App 48, 54-57; 684 NW2d 894 (2004), rev’d in part on other grounds 474 Mich 914 (2005).

As previously discussed, the “first step in recognizing a damage remedy for injury

consequent to a violation of our Michigan Constitution is . . . to establish the constitutional

violation itself.” Marlin, 205 Mich App at 338 (quotation marks and citation omitted). Here,

defendants argue that plaintiffs’ state-created danger cause of action cannot be sustained because

plaintiffs have not alleged any actions by defendants that “created or increased the risk that

plaintiff[s] would be exposed to an act of violence by a third party.” We agree. While plaintiffs

suggest that harm committed by a third party is not a necessary element of a cause of action for

state-created danger, no court that has recognized or applied the state-created danger theory has

done so in the absence of some act of private, nongovernmental harm. Indeed, plaintiffs

acknowledge that, at least, the harm necessary to sustain a constitutional tort claim of state-

created danger must spring from a source other than a state actor. Were this Court to recognize a

cause of action for state-created danger arising from the Michigan Constitution, it would be

narrow in scope and so limited.

In this case, plaintiffs have alleged harms caused directly and intentionally by state

actors. This is simply not the sort of factual situation in which a claim for state-created danger,

according to its common conception, may be recognized. The Court of Claims did not err when

it concluded that, even if a state-created danger cause of action is cognizable under Michigan

law, plaintiffs have not alleged facts to support it. Summary disposition in favor of all

defendants on plaintiffs’ state-created danger claim is therefore appropriate.

VI. INVERSE CONDEMNATION

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Next, defendants argue that the Court of Claims erred in denying their motion for

summary disposition of plaintiffs’ inverse condemnation claims. We disagree.

“Both the United States and Michigan constitutions prohibit the taking of private property

for public use without just compensation.” Wiggins v City of Burton, 291 Mich App 532, 571;

805 NW2d 517 (2011), citing US Const Am V; Const 1963, art 10, § 2. “A de facto taking

occurs when a governmental agency effectively takes private property without a formal

condemnation proceeding.” Merkur Steel Supply Inc v Detroit, 261 Mich App 116, 125; 680

NW2d 485 (2004). Inverse condemnation is “ ‘a cause of action against a governmental

defendant to recover the value of property which has been taken in fact by the governmental

defendant, even though no formal exercise of the power of eminent domain has been attempted

by the taking agency.’ ” In re Acquisition of Land-Virginia Park, 121 Mich App 153, 158-159;

328 NW2d 602 (1982). “Inverse condemnation can occur without a physical taking of the

property; a diminution in the value of the property or a partial destruction can constitute a

‘taking.’ ” Merkur Steel Supply Inc, 261 Mich App at 125. Further,

[a]ny injury to the property of an individual which deprives the owner of

the ordinary use of it is equivalent to a taking, and entitles him to compensation.

So a partial destruction or diminution of value of property by an act of

government, which directly and not merely incidentally affects it, is to that extent

an appropriation. [Peterman v Dep’t of Natural Resources, 446 Mich 177, 190;

521 NW2d 499 (1994) (quotation marks and citation omitted).]

“While there is no exact formula to establish a de facto taking, there must be some action

by the government specifically directed toward the plaintiff’s property that has the effect of

limiting the use of the property.” Dorman v Clinton Twp, 269 Mich App 638, 645; 714 NW2d

350 (2006) (quotation marks and citation omitted). “[A] plaintiff alleging inverse condemnation

must prove a causal connection between the government’s actions and the alleged damages.”

Hinojosa v Dep’t of Natural Resources, 263 Mich App 537, 548; 688 NW2d 550 (2010).

Stated simply, “a plaintiff alleging a de facto taking or inverse condemnation must

establish (1) that the government's actions were a substantial cause of the decline of the

property’s value and (2) that the government abused its powers in affirmative actions directly

aimed at the property.” Blue Harvest, Inc v Dep’t of Transp, 288 Mich App 267, 277; 792

NW2d 798 (2010). Further, “[t]he right to just compensation, in the context of an inverse

condemnation suit for diminution in value . . . exists only where the land owner can allege a

unique or special injury, that is, an injury that is different in kind, not simply in degree, from the

harm suffered by all persons similarly situated.” Spiek v Mich Dep’t of Transp, 456 Mich 331,

348; 572 NW2d 201 (1998).

Plaintiffs allege that defendants made the decision to switch the city of Flint’s water

source from Lake Huron to the Flint River despite knowledge of the Flint River’s toxic potential

and the inadequacy of Flint’s water treatment plant. Plaintiffs also allege that immediately after

the switch was effected, toxic water flowed directly from the Flint River, through the city’s

service lines to the water plant and then to plaintiffs’ properties, where it caused physical damage

to plumbing, water heaters, and service lines, leaving the infrastructure unsafe to use even after

the delivery of toxic water was halted by the city’s reconnection to the DWSD. According to

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plaintiffs, this damage resulted in reduced property values. Additionally, plaintiffs allege that

various state actors concealed or misrepresented data, and made false statements about the safety

of Flint River water in an attempt to downplay the risk of its use and consumption. We agree

with the Court of Claims’ conclusion that “[t]he allegations are sufficient, if proven, to allow a

conclusion that the state actors’ actions were a substantial cause of the decline of the property’s

value and that the state abused its powers through affirmative actions directly aimed at the

property, i.e., continuing to supply each water user with corrosive and contaminated water with

knowledge of the adverse consequences associated with being supplied with such water.”

Disputing the conclusion reached by the Court of Claims, defendants take specific issue

with each element of plaintiffs’ inverse condemnation claim. First, defendants argue that

plaintiffs have not alleged any affirmative action to support a claim of inverse condemnation

because a failure to license, regulate, or supervise cannot be considered an affirmative act. It is

true that “alleged misfeasance in licensing and supervising” does not constitute an affirmative

action to support a claim for inverse condemnation. Attorney General v Ankersen, 148 Mich

App 524, 562; 385 NW2d 658 (1986). However, plaintiffs have not alleged any failure to

regulate or supervise, but an affirmative act of switching the water source with knowledge that

such a decision could result in substantial harm. Defendants’ argument in this regard is

unsupported, and we therefore reject it. Further, state defendants attempt to avoid responsibility

for the action of switching Flint’s water source by arguing that city defendants alone made the

decision and effectuated the switch. This argument, too, is unsupported. Plaintiffs have alleged

both knowledge and action on the part of state defendants, and while it may ultimately be

discovered that state defendants were not responsible for the injury suffered by plaintiffs, this

Court here considers only the propriety of judgment as a matter of law and must therefore accept

all of plaintiffs’ well-pleaded allegations as true.

Defendants also argue that plaintiffs have not alleged that any actions taken by

defendants were directly aimed at plaintiffs’ property. Defendants compare the act of changing

Flint’s water supply to the city’s affirmative act of removing adjacent residential neighborhoods

and diminishing commercial owners’ property values in Murphy v Detroit, 201 Mich App 54, 56;

506 NW2d 5 (1993). In that case, this Court held that no inverse condemnation had occurred

because while the city’s actions had affected the value of the plaintiffs’ commercial property, the

city had taken no deliberate action toward the commercial property that deprived the owners of

their right to use the property as they saw fit. Id. According to defendants, the city’s act of

demolishing residential neighborhoods, as described in Murphy, represents a more egregious

allegation of inverse condemnation than that leveled by plaintiffs here. As in Murphy,

defendants argue, the government’s actions merely affected plaintiffs’ property.

Defendants’ reliance on Murphy is misplaced. This is not a situation where plaintiffs

have alleged an incidental reduction in property value resulting from some unrelated

administrative action by the government. Here, plaintiffs allege deliberate actions taken by

defendants that directly led to toxic water being delivered through Flint’s own water delivery

system directly into plaintiffs’ water heaters, bathtubs, sinks, and drinking glasses, causing

actual, physical damage to plaintiffs’ property and affecting plaintiffs’ property rights.

Finally, defendants argue that plaintiffs have not alleged a unique injury, different in kind

from harm suffered by all persons similarly situated. According to defendants, plaintiffs’ injury,

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while perhaps different in degree, is no different from the harm suffered by all property owners

exposed to Flint River water during the switch. Although defendants argue that plaintiffs’

injuries should be compared only to those suffered by other users of Flint River water,

defendants have cited no direct authority for this assertion and, indeed, the assertion is not

logically supported by the case law on which defendants rely.

In Richards v Washington Terminal Co, 233 US 546; 34 S Ct 654; 58 L Ed 1088 (1914),

an opinion that state defendants argue supports their position, the United States Supreme Court

held that the plaintiffs, residents situated near a railroad tunnel, could not state a claim of inverse

condemnation for cracks in their homes caused by vibrations from nearby trains because risk of

such harm, while varying in degree, is shared generally by anyone living near a train. Id. at 554.

However, as defendants acknowledge, the Court held that the plaintiffs could state a claim for

inverse condemnation for damage caused by a fanning system within the tunnel that blew smoke

and gases into their homes because this particular harm was suffered uniquely by the plaintiffs.

Id. at 556. On review, we conclude that the Richards holding actually supports plaintiffs’

contention that the harm alleged should be compared to harm suffered by all other municipal

water users, rather than to all other Flint water users. In Richards, the Court did not compare the

plaintiffs with all owners of property near a specific train, but with all property owners, in

general, who own property near any train.

Similarly, in Spiek, 456 Mich at 333-335, the plaintiffs, who were owners of residential

property, alleged entitlement to compensation for damages caused to their property from dust,

vibration, and fumes emanating from a newly-constructed interstate expressway. The Michigan

Supreme Court rejected the plaintiffs’ claim because the damage to plaintiffs’ property was no

different than those “incurred by all property owners who reside adjacent to freeways or other

busy highways.” Id. at 332. In Spiek, as in Richards, the Court compared the plaintiffs to all

similarly situated property owners, not just the owners of residential property adjacent to the

newly-constructed expressway at issue in that case.

It follows, therefore, that plaintiffs’ injury must be compared to harm suffered by

municipal water users generally, rather than to harm suffered by other users of Flint River water.

As in Richards and Spiek, plaintiffs have alleged injuries unique among similarly situated

individuals, i.e. municipal water users, caused directly by governmental actions that resulted in

exposure of their property to specific harm.

Defendants also suggest that because they have taken no affirmative action directly aimed

at plaintiffs’ property, they cannot possibly have caused plaintiffs’ injuries. However,

defendants’ argument rests on assumptions that this Court, for the reasons discussed, declines to

accept. Questions of fact still exist that, if resolved in plaintiffs’ favor, support each element of

plaintiffs’ inverse condemnation claim. The Court of Claims therefore did not err when it

concluded that summary disposition pursuant to MCR 2.116(C)(8) was, at this stage of the

proceedings, inappropriate.

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VII. OFFICIAL CAPACITY CLAIMS

Finally, defendants argue that the Court of Claims erred in allowing plaintiffs to proceed

with “official capacity” claims against the Governor and defendant emergency managers. Again,

we disagree.

Defendants argued in the lower court that “official capacity” suits against governmental

officials for constitutional violations are not recognized in Michigan and, as a matter of law,

plaintiffs could not assert their constitutional tort claims against the Governor, Earley, or

Ambrose. After considering defendants’ argument, the Court of Claims concluded that the

relevant case law did not preclude a nominal “official capacity” constitutional tort claim against

these defendants. Because this is a question of law, this Court’s review is de novo. Jude v

Heselschwerdt, 228 Mich App 667, 670; 578 NW2d 704 (1998).

As previously discussed, the Michigan Supreme Court held in Smith that “[a] claim for

damages against the state arising from violations by the state of the Michigan Constitution may

be recognized in appropriate cases.” Smith, 428 Mich at 544. The Jones Court noted that “Smith

only recognized a narrow remedy against the state on the basis of the unavailability of any other

remedy,” and continued, explaining that “[t]hose concerns are inapplicable in actions against a

municipality or an individual defendant. Unlike states and state officials sued in an official

capacity, municipalities are not protected by the Eleventh Amendment.” Id.

State defendants argue that with the above-cited language, the Jones Court acknowledged

that state officials have the same immunity from suit under the Eleventh Amendment that the

state has when they are sued in their “official capacity;” a legal “fiction” designed only “to

promote the vindication of federal rights.” Because the Eleventh Amendment does not apply in

state courts, argue state defendants, the term “official capacity,” as employed by the Jones Court,

has no parallel meaning under Michigan law.

State defendants misread Jones. We agree with the Court of Claims’ observation that the

Jones Court’s use of the term “only” derived from the fact that it was addressing claims against

municipalities and individual municipal employees, as distinguished from claims against the

state or individual state officials who are afforded protection by the Eleventh Amendment.

Mays, unpub op at 32. The Jones Court’s conclusions do not preclude a constitutional tort claim

against individuals. Rather, the Jones Court specifically contemplated the availability of official

capacity suits and was careful to evaluate the availability of alternative remedies against

municipalities and municipal employees as “[u]nlike states and state officials sued in an official

capacity.” Jones, 462 Mich at 337. The Court of Claims correctly observed that “a proper

reading of the pertinent case law compels the conclusion that the remedy allowed in Smith, while

narrow, extends beyond the state itself to also reach state officials acting in their official

capacities.” Mays, unpub op at 32. Indeed, the Jones Court affirmed an opinion by the Court of

Appeals which made even more clear that “the Smith rationale simply does not apply outside the

context of a claim that the state (or a state official sued in an official capacity) has violated

individual rights protected under the Michigan Constitution.” Jones, 227 Mich App at 675.

We are also unconvinced by state defendants’ argument that Michigan’s statutes

governing governmental liability distinguish between government agencies and government

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officials and do not contemplate an “official capacity” suit. Michigan courts have long

recognized suits against state officials in their official capacities for claims arising outside of

federal law. See, e.g. Bay Mills Indian Community v State, 244 Mich App 739, 748-749; 626

NW2d 169 (2001); Jones v Sherman, 243 Mich App 611, 612-613; 625 NW2d 391 (2000);

Carlton, 215 Mich App at 500-501; Lowery v Dep’t of Corrections, 146 Mich App 342, 348-349;

380 NW2d 99 (1985); Abbott v Secretary of State, 67 Mich App 344, 348; 240 NW2d 800

(1976). And Michigan law does, in fact, contemplate “official capacity” suits against

government officials. Indeed, the very provisions of the CCA state defendants rely on to argue

that emergency managers are not state officers expressly contemplate suits against “an officer,

employee, or volunteer of this state . . . acting, or who reasonably believes that he or she is

acting” in his or her official capacity. MCL 600.6419(7).

Contrary to state defendants’ assertions, nothing in the provisions of our state’s

governmental liability statutes18 precludes an “official capacity” suit, particularly one predicated

on allegations of constitutional violations. The governmental immunity statutes do not apply

where, as here, a plaintiff has alleged violations of the Michigan Constitution. Smith, 428 Mich

at 544 (“”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.”) The fact that no statute specifically authorizes a suit against the Governor in his official

capacity is irrelevant for the same reason. The liability of the state and its officers for

constitutional torts is not something the state must affirmatively grant via statute;

Under Smith, [a state] defendant cannot claim immunity where the

plaintiff alleges that defendant has violated its own constitution. Constitutional

rights serve to restrict government conduct. These rights would never serve this

purpose if the state could use governmental immunity to avoid constitutional

restrictions. [Burdette, 166 Mich App at 480-409.]

Liability of the state and its officers for constitutional torts is simply inherent in the fact that the

Constitution binds even the state government as the preeminent law of the land.

Plaintiffs have sued Governor Snyder and emergency managers Earley and Ambrose in

their official capacities only, rather than as individual government employees. As the Court of

Claims noted, “a suit against a state official in his or her official capacity is not a suit against the

18

State defendants instruct this Court to “see” MCL 691.1407(1), MCL 691.1407(2), and MCL

691.1407(5), provisions of the GTLA, but provide nothing in the way of argument supporting

their conclusory assertion the GTLA “in no way contemplate[s] an ‘official capacity’ claim.” “It

is not sufficient for a party simply to announce a position . . . and then leave it up to this Court to

discover and rationalize the basis for his claims or unravel and elaborate for him his

arguments[.]” Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) (quotation marks and

citation omitted). In any case, state defendants’ argument that the GTLA precludes official

capacity suits is belied by an immediately adjacent provision of the GTLA, which specifically

contemplates causes of action “against an officer, employee, or volunteer of a governmental

agency for injuries to persons or property.” MCL 691.1408(1).

-39-

official but rather is a suit against the official’s office. As such, it is no different from a suit

against the State itself.” Will v Mich Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed

2d 45 (1989); see also McDowell v Warden of Mich Reformatory at Ionia, 169 Mich 332, 336;

135 NW 265 (1912). In other words, if they are successful in their causes of action against the

Governor, Earley, or Ambrose, plaintiffs must look to recover monetary damages from the state.

Plaintiffs’ official capacity suits cannot result in individual liability. As the Court of Claims

carefully noted, the Governor, Earley, and Ambrose are merely nominal party defendants, “such

that the state and the state alone . . . [is] accountable for any damage award that may result in this

action.” Mays, unpub op at 33-34.

Official capacity suits are not merely redundant, as city defendants suggest. Rather,

official capacity suits, while directed at the state, facilitate an efficient and expedient judicial

process. In order to prevail on a constitutional violation claim against the state, plaintiffs are

required to prove that the violation of their rights occurred by virtue of a state custom or policy

that governmental actors carried out in the exercise of their official authority. Plaintiffs have

leveled specific allegations against the Governor, Earley, and Ambrose, and these defendants’

participation in the judicial process is required. It is logical, if not necessary, to name the policy-

makers as nominal defendants in this case. Should plaintiffs’ case be tried before a jury, a clear

distinction between plaintiffs’ allegations against the state as a party, and against the Governor,

Earley, and Ambrose in their official capacities, will aid the jury in understanding the precise

issues involved and prevent unnecessary confusion. Given our courts’ history of recognizing

“official capacity” suits, and the Court of Claims care in explaining that these suits are nominal

only, we conclude that the Court of Claims did not err in allowing plaintiffs’ “official capacity”

suits against the Governor and city defendants to proceed.

VIII. CONCLUSION

In sum, we hold that the Court of Claims did not err when it denied defendants’ motion

for summary disposition of plaintiffs’ constitutional injury to bodily integrity and inverse

condemnation claims. Questions of fact remain that, if resolved in plaintiffs’ favor, could

establish each of these claims and plaintiffs’ compliance with, or relief from, the statutory notice

requirements of the CCA. Further, for the reasons described, the Court of Claims did not err

when it allowed plaintiffs to proceed with their claims against the Governor, Earley, Ambrose,

and all other defendants in the Court of Claims, or when it granted summary disposition in favor

of defendants on plaintiffs’ constitutional claim for injury to bodily integrity.

Affirmed.

/s/ Kathleen Jansen

/s/ Karen M. Fort Hood

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