Timothy L Johnson v. Public School Employees Retirement System

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

AFT, AFT MICHIGAN, ALPENA FOR PUBLICATION

MONTMORENCY-ALCONA ISD October 15, 2020

PARAPROFESSIONALS, ALPENA- 9:15 a.m.

MONTMORENCY-ALCONA ISD TEACHERS,

ARENAC EASTERN FEDERATION, BAY

ARENAC SKILLS, BROWN CITY

EMPLOYEES ORGANIZATION, BROWN CITY

FEDERATION OF TEACHERS, CENTER

FEDERATION, CHEBOYGAN OTSEGO

PRESQUE ISLE INTERMEDIATE

PARAPROFESSIONALS AND BUS

PERSONNEL, CHEBOYGAN-OTSEGO

PRESQUE ISLE ISD TEACHERS,

CHEBOYGAN-OTSEGO PRESQUE ISLE

SUPPORT PERSONNEL, CHESANING UNION

AUXILIARY SERVICE EMPLOYEES, CLARE-

GLADWIN ISD FEDERATION, CRAWFORD

AUSABLE BUS DRIVERS FEDERATION,

CRAWFORD AUSABLE

CUSTODIANS/SECRETARIAL FEDERATION,

CRAWFORD AUSABLE SUPPORT STAFF

FEDERATION, CRAWFORD AUSABLE

FEDERATION OF TEACHERS, CRESTWOOD

FEDERATION OF TEACHERS, DEARBORN

FEDERATION OF SCHOOL EMPLOYEES,

DEARBORN FEDERATION OF TEACHERS,

DETROIT ASSOCIATION OF EDUCATIONAL

OFFICE EMPLOYEES, DETROIT

FEDERATION OF PARAPROFESSIONALS,

DETROIT FEDERATION OF TEACHERS,

EAST DETROIT FEDERATION OF

TEACHERS, ECORSE FEDERATION OF

TEACHERS, FAIRVIEW FEDERATION OF

TEACHERS, GLEN LAKE FEDERATION OF

TEACHERS, HALE FEDERATION OF

TEACHERS, HAMTRAMCK FEDERATION OF

TEACHERS, HEMLOCK AUXILIARY

-1-

SERVICE EMPLOYEES, HEMLOCK

FEDERATION OF TEACHERS, HENRY FORD

COMMUNITY COLLEGE ADJUNCT

FACULTY ORGANIZATION, HENRY FORD

COMMUNITY COLLEGE FEDERATION OF

TEACHERS, HIGHLAND PARK FEDERATION

OF PARAPROFESSIONALS, HIGHLAND

PARK FEDERATION OF TEACHERS, HURON

VALLEY CONTINUING EDUCATION, IMLAY

CITY FEDERATION OF TEACHERS, INKSTER

FEDERATION OF TEACHERS, IOSCO ISD

FEDERATION OF TEACHERS, IOSCO ISD

INTERMEDIATE FEDERATION AUXILIARY

EMPLOYEES, KINGSLEY FEDERATION OF

TEACHERS, KIRTLAND COMMUNITY

COLLEGE FEDERATION OF TEACHERS,

LAKE CITY SUPPORT STAFF FEDERATION,

LAKE CITY TEACHERS &

PARAPROFESSIONALS FEDERATION, LAKE

SHORE FEDERATION OF ED SECRETARIES,

LAKE SHORE FEDERATION OF TEACHERS,

LAKE SHORE FEDERATION SUPPORT

STAFF, LAMPHERE FEDERATION OF

PARAPROFESSIONALS, LAMPHERE

FEDERATION OF TEACHERS, LANSING

COMMUNITY COLLEGE ADMINISTRATIVE

ASSOCIATION, LES CHENEAUX

FEDERATION OF SUPPORT STAFF, LES

CHENEAUX FEDERATION OF TEACHERS,

MACOMB INTERMEDIATE FEDERATION OF

PARAPROFESSIONALS, MACOMB

INTERMEDIATE FEDERATION OF

TEACHERS, MELVINDALE/NAP

FEDERATION OF TEACHERS,

MELVINDALE/NAP PARAPROFESSIONALS,

MIDLAND FEDERATION OF

PARAPROFESSIONALS, MIDLAND ISD

FEDERATION OF PARAPROFESSIONALS,

MIDLAND ISD FEDERATION OF TEACHERS,

NORTHVILLE FEDERATION OF

PARAPROFESSIONALS, ONAWAY

FEDERATION OF SCHOOL RELATED

PERSONNEL, ONAWAY FEDERATION OF

TEACHERS, PLYMOUTH-CANTON

COMMUNITY SCHOOLS SECRETARIAL

UNIT, PLYMOUTH-CANTON FEDERATION

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OF PLANT ENGINEERS, ROMULUS

FEDERATION OF PARAPROFESSIONALS,

ROSEVILLE FEDERATION OF TEACHERS,

RUDYARD FEDERATION OF AIDES,

RUDYARD FEDERATION OF TEACHERS,

SAGINAW ISD FEDERATION OF TEACHERS,

TAWAS AREA FEDERATION OF TEACHERS,

TAYLOR FEDERATION OF TEACHERS,

UTICA FEDERATION OF TEACHERS, VAN

DYKE EDUCATIONAL ASSISTANTS

FEDERATION, VAN DYKE PROFESSIONAL

PERSONNEL, WARREN WOODS

FEDERATION OF PARAPROFESSIONALS,

WASHTENAW INTERMEDIATE SCHOOL

EMPLOYEES FEDERATION, WATERFORD

ASSOCIATION OF SUPPORT PERSONNEL,

WAYNE COUNTY COMMUNITY COLLEGE

FEDERATION OF TEACHERS, WAYNE

COUNTY COMMUNITY COLLEGE

PROFESSIONAL & ADMINISTRATIVE

ASSOCIATION, WAYNE COUNTY RESA

SALARIED STAFF, WEXFORD-MISSAUKEE

ISD FEDERATION OF TEACHERS, and

WHITEFISH TOWNSHIP FEDERATION OF

TEACHERS,

Plaintiffs-Appellees/Cross-

Appellants,

v No. 345036

Court of Claims

STATE OF MICHIGAN, LC No. 10-000091-MM

Defendant-Appellant/Cross-

Appellee.

DEBORAH MCMILLAN, THOMAS BRENNER,

THERESA DUDLEY, KATHERINE DANIELS,

and COREY CRAMB,

Plaintiffs-Appellees/Cross-

Appellants,

v No. 345418

Court of Claims

PUBLIC SCHOOL EMPLOYEES RETIREMENT LC No. 10-000045-MM

SYSTEM, PUBLIC SCHOOL EMPLOYEES

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RETIREMENT SYSTEM BOARD, TRUST FOR

PUBLIC EMPLOYEE RETIREMENT HEALTH

CARE, and DEPARTMENT OF TECHNOLOGY,

MANAGEMENT, AND BUDGET,

Defendants-Appellants/Cross-

Appellees,

and

DIRECTOR OF THE DEPARTMENT OF

TECHNOLOGY, MANAGEMENT, AND

BUDGET,

Defendant.

TIMOTHY L. JOHNSON, JANET HESLET,

RICKY MACK, and DENISE ZIEJA,

Plaintiffs-Appellees/Cross-

Appellants,

v No. 345420

Court of Claims

PUBLIC SCHOOL EMPLOYEES RETIREMENT LC No. 10-000047-MM

SYSTEM, PUBLIC SCHOOL EMPLOYEES

RETIREMENT SYSTEM BOARD, TRUST FOR

PUBLIC EMPLOYEE RETIREMENT HEALTH

CARE, and DEPARTMENT OF TECHNOLOGY,

MANAGEMENT, AND BUDGET,

Defendants-Appellants/Cross-

Appellees,

and

DIRECTOR OF THE DEPARTMENT OF

TECHNOLOGY, MANAGEMENT, AND

BUDGET, DIRECTOR OF THE OFFICE OF

RETIREMENT SERVICES, and STATE

TREASURER,

Defendants.

-4-

Before: JANSEN, P.J., and K.F. KELLY and CAMERON, JJ.

CAMERON, J.

In these three cases consolidated for appeal, defendants-appellants (“defendants”) appeal

and plaintiffs-appellees (“plaintiffs”) cross-appeal a July 24, 2018 order of the Court of Claims,

which ordered defendants to pay equitable judgment interest on funds collected under MCL

38.1343e, as amended by 2010 PA 75 (“former MCL 38.1343e”). The July 24, 2018 order also

denied plaintiffs’ request for statutory interest under MCL 600.6455. We affirm in part and reverse

in part.

I. BACKGROUND

On May 19, 2010, the Legislature enacted 2010 PA 75, which revised the Public School

Employees Retirement Act, MCL 38.1301 et seq. In relevant part, Section 43e of 2010 PA 75

required public school employees to contribute three percent of their salaries to the Michigan

Public School Employees’ Retirement System (“MPSERS”). The funds were to be placed in an

irrevocable trust that funded retiree health care benefits.

Plaintiffs brought suits, contesting the constitutionality of 2010 PA 75 on various grounds.

In July 2010, the trial court ordered that “[t]he 3% levy from the wages of all members of the

[MPSERS] pursuant to 2010 Act 75 shall not be placed in the irrevocable trust . . . .” The trial

court instead ordered that the money would be “placed in a separate interest bearing account” and

that the money could “not be spent or otherwise disbursed” until further order of the court.

Additionally, in September 2010, the trial court entered a stipulated order, which provided as

follows:

Defendants agree that if the final Court to rule in this case finds MCL

38.1343e to be unconstitutional, otherwise illegal, or unenforceable as a result of a

breach of contract, Defendant [MPSERS] . . . will repay to each member of

MPSERS who contributed under MCL 38.1343e the amount of their individual

contribution, plus any interest earned thereon in the separate interest-bearing

account.

The trial court ultimately concluded that former MCL 38.1343e was unconstitutional, and

appeals followed. On appeal, this Court held that former MCL 38.1343e was unconstitutional

under multiple provisions of the Michigan and United States Constitutions. AFT Mich v Michigan,

297 Mich App 597; 825 NW2d 595 (2012) (AFT Mich I), vacated by 498 Mich 851 (2015). In

response to this Court’s decision, the Legislature enacted 2012 PA 300, which altered

MCL 38.1343e’s scope and effect but did not repeal it. All of the plaintiffs challenged 2012 PA

300, and the trial court dismissed their claims. This Court affirmed the trial court’s decision in

AFT Mich v Michigan, 303 Mich App 651; 846 NW2d 583 (2014) (AFT Mich II), and the Michigan

Supreme Court affirmed this Court’s decision regarding 2012 PA 300, AFT Mich v Michigan, 497

Mich 197; 866 NW2d 782 (2015) (AFT Mich III). However, our Supreme Court vacated this

Court’s decision in AFT Mich I and remanded with instructions for this Court to reconsider its

decision in light of the enactment of 2012 PA 300 and in light of the Supreme Court’s “decision

upholding that Act[.]” AFT Mich v Michigan, 498 Mich 851, 851; 864 NW2d 555 (2015).

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On remand, this Court concluded that neither the passage of 2012 PA 300 nor the Michigan

Supreme Court’s decision to uphold 2012 PA 300 affected the validity of 2010 PA 75. AFT Mich

v Michigan (On Remand), 315 Mich App 602; 893 NW2d 90 (2016) (AFT Mich IV), vacated in

part by 501 Mich 939 (2017). This Court concluded that 2010 PA 75 and its compulsory

contribution provision remained unconstitutional for several reasons. Id. at 611-612. In relevant

part, in Section II of the opinion, this Court held that “2010 PA 75 , from its effective date until

the completed transition to a voluntary system, violated” the Contracts Clauses of the United States

and Michigan Constitutions. Id. at 621. This Court remanded the case to the trial court “with the

direction to return the subject funds, with interest, to the relevant employees.” Id. at 612.

Our Supreme Court affirmed this Court’s “holding that 2010 Public Act 75 violated the

respective Contract Clauses of both the federal and state constitutions . . . .” AFT Mich v Michigan,

501 Mich 939, 939; 904 NW2d 417 (2017) (AFT Mich V). Our Supreme Court additionally held

that, “[b]ecause 2010 Public Act 75 is unconstitutional, the funds collected pursuant to that act

before the effective date of 2012 Public Act 300 must be refunded to the plaintiffs in accordance

with the Court of Appeals judgment.” Id.

On January 22, 2018, the trial court entered an order, noting that it had been directed to

order the “return of the subject funds, with interest, to the relevant employees.” The trial court

ordered defendants to disburse the funds “together with the interest earned on the amounts in the

interest-bearing account.” Defendants complied with the trial court’s order.

In February 2018, plaintiffs filed a joint motion seeking the payment of interest under

MCL 600.6455. Plaintiffs argued that they had obtained a money judgment and that this Court

had ordered the trial court to return the funds “with interest.” Plaintiffs argued that, because the

interest on the money held in escrow was “less than one percent of the principal in total,” they

would not be made whole if the trial court did not order defendants to pay statutory interest. In

the alternative, plaintiffs moved the trial court to award interest as a matter of equity. Plaintiffs

argued that, absent defendants’ unconstitutional actions, plaintiffs would have received full

payment for their earned compensation. Plaintiffs argued that they should be compensated “in

today’s dollars for the compensation which they should have been receiving between 2010 and

2012.” Defendants opposed the motion, arguing that plaintiffs had waived any additional interest

award under contract principles and that defendants were not required to pay interest under

MCL 600.6455 because the case resulted in a declaratory judgment, not a money judgment.

Defendants also argued that governmental immunity barred payment of equitable interest and that,

based on the circumstances, plaintiffs were not entitled to an award of equitable interest.

The trial court rejected defendants’ argument that plaintiffs had waived entitlement to

interest. The trial court then concluded that an order to return the involuntarily withheld funds was

not a “money judgment” within the meaning of MCL 600.6422(2) because the order merely

restored property to plaintiffs, and because the order was for equitable relief resulting from a

declaratory judgment. The trial court also disagreed that governmental immunity or sovereign

immunity barred an interest award outside of interest on a money judgment under MCL 600.6455.

The trial court reasoned that governmental immunity was not available in the underlying action

because it was not a tort action. Additionally, the trial court noted that common law sovereign

immunity had been replaced by governmental immunity under the governmental tort liability act

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(“GTLA”), MCL 691.1401 et seq., and that an award of equitable interest was not a tort subject to

the GTLA.

Finally, the trial court held that an award of equitable interest was warranted. The court

noted that in equitable actions, it had discretion to award judgment interest even if interest was not

mandated by statute. When considering the totality of the circumstances, the trial court declined

to “punish” plaintiffs for prudently obtaining injunctive relief. The trial court found that

defendants “played no small role in the protracted nature of the appellate process . . . .” While the

fact that AFT Mich I was pending on application for nearly two years contributed to the delay, the

trial court noted that defendants had sought leave to appeal after the Attorney General decided to

no longer pursue the matter. The trial court also considered that plaintiffs were deprived of use of

their taken wages for nearly seven years. The trial court determined that the proper rate of interest

was the same rate that MCL 600.6455(2) provided for interest on a money judgment, less the

amount of interest the escrow account had actually earned. These appeals followed.

II. ANALYSIS

A. LAW-OF-THE-CASE DOCTRINE

Defendants first argue that plaintiffs’ claims should be dismissed because plaintiffs failed

to comply with the requirements of MCL 600.6431. Although defendants are correct that “a claim

cannot proceed against the state” unless a claimant complies with the mandates outlined in MCL

600.6431, Fairley v Dep’t of Corrections, 497 Mich 290, 293; 871 NW2d 129 (2015), we conclude

that the law-of-the-case doctrine precludes consideration of this issue.

The law-of-the-case doctrine provides that once “an appellate court has passed on a legal

question and remanded the case for further proceedings, the legal questions . . . determined by the

appellate court will not be differently determined on a subsequent appeal in the same case where

the facts remain materially the same.” See Grievance Administrator v Lopatin, 462 Mich 235,

259; 612 NW2d 120 (2000) (quotation marks and citation omitted). “[A]s a general rule, an

appellate court’s determination of an issue in a case binds lower tribunals on remand and the

appellate court in subsequent appeals.” Id. at 260.

The purpose of the doctrine is to promote consistency and to “avoid reconsideration of

matters once decided during the course of a single lawsuit.” See Schumacher v Dep’t of Natural

Resources, 275 Mich App 121, 128; 737 NW2d 782 (2007). The doctrine promotes finality and

prevents forum shopping as well. See Int’l Union, UAW v Dep’t of Mental Health, 211 Mich App

20, 24; 535 NW2d 210 (1995). The doctrine is also founded on an appellate court’s lack of

jurisdiction to modify its own judgments except on rehearing. See Johnson v White, 430 Mich 47,

53; 420 NW2d 87 (1988). The law-of-the-case doctrine is, in a sense, the “analytical cousin of the

doctrines of claim and issue preclusion.” Locricchio v The Evening News Ass’n, 438 Mich 84,

109; 476 NW2d 112 (1991). However, the law-of-the case doctrine applies “only to issues actually

decided, either implicitly or explicitly, in the prior appeal.” Lopatin, 462 Mich at 260. An issue

is decided if this court expresses an opinion on the merits. See id. (ruling that the doctrine did not

apply because the court had not addressed the issue on the merits).

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In this case, both this Court and the Michigan Supreme Court have expressed opinions on

the merits of plaintiffs’ claims. Specifically, this Court previously held that former MCL 38.1343e

violated the Contracts Clauses of the United States and Michigan Constitutions. AFT Mich IV,

315 Mich App at 621. As a result of this holding, this Court ordered return of plaintiffs’ funds.

Id. at 628. The Michigan Supreme Court also ruled that former MCL 38.1343e violated the

Contracts Clauses and ordered return of the funds. AFT Mich V, 501 Mich at 939. By ruling that

plaintiffs were entitled to their wrongly taken wages, both this Court and the Michigan Supreme

Court implicitly decided that plaintiffs had a cause of action. Furthermore, when a higher court

has remanded a case, it is the duty of the lower court to comply with the remand order. Rodriguez

v Gen Motors Corp, 204 Mich App 509, 514; 516 NW2d 105 (1994). The trial court was ordered

to distribute the funds, AFT Mich IV, 315 Mich App at 628; AFT Mich V, 501 Mich at 939, and it

was required to do so. Therefore, we decline to decide whether plaintiffs’ claims were barred by

virtue of their alleged failure to verify their respective complaints.

B. STATUTORY INTEREST

Plaintiffs argue that the trial court erred by ruling that the January 2018 order was not a

money judgment. We disagree.

This Court reviews de novo whether a statute applies in a given case. In re Forfeiture of

$176,598, 465 Mich 382, 385; 633 NW2d 367 (2001). Generally, “[e]ntitlement to interest on a

judgment is purely statutory and must be specifically authorized by statute.” Dep’t of Transp v

Schultz, 201 Mich App 605, 610; 506 NW2d 904 (1993). “[A]n award of interest is mandatory in

all cases to which [a] statute applies.” Everett v Nickola, 234 Mich App 632, 639; 599 NW2d 732

(1999).

Plaintiffs argue that interest must be awarded on the wrongfully withheld funds under

MCL 600.6455(2) of the Court of Claims Act, which provides as follows:

Except as otherwise provided in this subsection, for complaints filed on or

after January 1, 1987, interest on a money judgment recovered in a civil action shall

be calculated from the date of filing the complaint at a rate of interest which is equal

to 1% plus the average interest rate paid at auctions of 5-year United States treasury

notes during the 6 months immediately preceding July 1 and January 1, as certified

by the state treasurer, and compounded annually, pursuant to this section.

[Emphasis added.]

As noted by the trial court and acknowledged by the parties, the key phrase in

MCL 600.6455(2) is “on a money judgment.” Plaintiffs argue that because the crux of this case

involved the payment of money, it necessary involved a “money judgment.” We disagree.

The phrase “money judgment” is not defined in the Court of Claims Act, and the case law

interpreting MCL 600.5455(2) is limited. However, like MCL 600.5455(2), MCL 600.6013(1)

“applies to money judgments recovered in a civil action.” Olson v Olson, 273 Mich App 347, 350;

729 NW2d 908 (2006). The meaning of “money judgment” within MCL 600.6013(1) has been

interpreted by Michigan Courts. When engaging in statutory interpretation, “the statute must be

read as a whole,” and this Court should read phrases “in the context of the entire legislative

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scheme.” Mich Props, LLC v Meridian Twp, 491 Mich 518, 528; 817 NW2d 548 (2012). This

Court also reads subsections of cohesive statutory provisions together. Robinson v Lansing, 486

Mich 1, 15; 782 NW2d 171 (2010). Because both MCL 600.6013 and MCL 600.6455 are part of

the Revised Judicature Act, MCL 600.101 et seq., and because both provisions refer to money

judgments in civil actions, we will construe the meaning of money judgment in a civil action the

same in MCL 600.6455(2) as in MCL 600.6013(1).

Case law interpreting the phrase “money judgment” within MCL 600.6013(1) makes it

clear that a judgment is not a money judgment simply because money is granted as part of that

judgment. Under MCL 600.6013(1), a money judgment in a civil action is a judgment “that orders

the payment of a sum of money, as distinguished from an order directing an act to be done or

property to be restored or transferred.” In re Forfeiture, 465 Mich at 386.

In In re Forfeiture, the police seized $176,598 from the claimant’s home and from another

residence based on the suspicion that the money was related to drug trafficking. Id. at 383-384.

The claimant ultimately prevailed in a forfeiture action that was brought by the prosecutor. Id. at

384. Thereafter, the claimant brought a motion in the trial court, requesting return of the money

and statutory judgment interest under MCL 600.6013. Id. The trial court ordered the prosecutor

to return the money to the claimant, but the trial court denied the request for statutory interest. Id.

at 385. This Court reversed on appeal. Id. In doing so, this Court held “that the decree directing

return of the funds was a money judgment in a civil action,” which entitled the claimant to interest

under MCL 600.6013(1). Id.

In affirming the trial court’s denial of statutory interest under MCL 600.6013, our Supreme

Court concluded that the order directing the return of the seized funds to the claimant was not a

money judgment in a civil action. Id. at 389. Our Supreme Court observed that “[t]he trial court’s

order was not an adjudication of an action for money damages, but rather one for the delivery of

property that had been the subject of a forfeiture action.” Id. at 388. The Court reasoned that

money is “property” subject to forfeiture, and that the trial court simply ordered the return of

specific personal property. Id. at 386-387. It noted that wrongfully seized currency is generally

treated like any other wrongfully seized property. Id. at 386 n 10. Specifically, our Supreme Court

reasoned that “[t]he return of seized property is treated as an act of restoration, rather than as an

award of monetary compensation for damages suffered by a party.” Id.

We conclude that the January 2018 order at issue in this case ordered the return of specific

personal property, not an award of monetary compensation for damages. As already discussed,

defendants took money from plaintiffs’ paychecks, and that specific money was ordered to be

placed into an account. This Court ordered that the money be “return[ed] . . . to the relevant

employees,” AFT Mich IV, 315 Mich App at 612, and our Supreme Court ordered that the funds

collected “must be refunded to the plaintiffs,” AFT Mich V, 501 Mich at 939. Consistent with

these holdings, the trial court ordered as follows:

The funds currently held in the separate interest-bearing accounts will be

dispersed by Defendants on January 22, 2018 to the reporting units, or Local

Education Agencies (LEAs), from which the funds were received, together with the

interest earned on the amounts in the interest-bearing account.

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Accordingly, the January 2018 order did not order the payment of a sum of money. Rather,

the order directed an act to be done, i.e., that plaintiffs’ property be transferred “to the reporting

units” or LEAs “from which the funds were received[.]” Thus, like in In re Forfeiture, the order

represented the return of specific property that defendants wrongfully took from plaintiffs.

Because a money judgment was not entered, the trial court properly declined to award statutory

interest to plaintiffs under MCL 600.5455(2).

C. EQUITABLE INTEREST

Defendants argue that the trial court erred by awarding plaintiffs equitable interest.

Specifically, defendants argue that plaintiffs’ request for compensation for their loss of use of the

money taken by defendants was a claim for common law damages to which defendants have not

waived immunity.1 We agree.

From the time of Michigan’s statehood, our Supreme Court’s jurisprudence has recognized

that the state, as sovereign, is immune from suit unless it consents to the lawsuit. Manion v State

Hwy Comm’r, 303 Mich 1, 19; 5 NW2d 527 (1942). See also Odom v Wayne Co, 482 Mich 459,

477; 760 NW2d 217 (2008). Thus, “a governmental agency is immune unless the Legislature has

pulled back the veil of immunity and allowed suit by citizens against the government.” Mack v

City of Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002). Tort immunity is granted to

governmental agencies in MCL 691.1407(1), which provides: “Except as otherwise provided in

this act, a governmental agency is immune from tort liability if the governmental agency is engaged

in the exercise or discharge of a governmental function.” Thus, “[i]mmunity from tort liability, as

provided by MCL 691.1407, is expressed in the broadest possible language—it extends immunity

to all governmental agencies for all tort liability whenever they are engaged in the exercise or

discharge of a governmental function.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 156;

615 NW2d 702 (2000). However, the GTLA also provides several exceptions to this broad grant

of immunity, Wesche v Mecosta Co Rd Comm, 480 Mich 75, 84; 746 NW2d 847 (2008), none of

which pertain to a claim for damages arising from the violation of a constitutional right.

“The Legislature has never created an exception to immunity for a constitutional tort.”

Mays v Governor, ___Mich ___, ___; ___ NW2d ___ (2020) (Docket No. 157335); slip op at 23.

Nonetheless, in Smith v Dep’t of Public Health, 428 Mich 540, 544; 410 NW2d 749 (1987), our

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

of the Michigan Constitution may be recognized in appropriate cases.” However, as recently

recognized by our Supreme Court in Mays, ___ Mich at ___, slip op at 31:

This Court has never explicitly endorsed a test for assessing a damages

inquiry for a constitutional violation. However, we agree with the Court of Claims

1

We note that defendants argue that “sovereign immunity” bars plaintiffs’ claims. However,

Michigan has abrogated common law sovereign immunity. Pittman v City of Taylor, 398 Mich

41, 49; 247 NW2d 512 (1976). Furthermore, our Supreme Court has explained that while the

terms “sovereign immunity” and “governmental immunity” have been used interchangeably over

the years, the terms are not synonymous. Pohutski v City of Allen Park, 465 Mich 675, 682; 641

NW2d 219 (2002).

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and the Court of Appeals that the multifactor test elaborated in Justice BOYLE’S

separate opinion in Smith provides a framework for assessing the damages inquiry.

Under that test, we weigh various factors, including (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 damages remedy in

any text, history, and previous interpretations of the specific provision; (4) the

availability of another remedy; and (5) various other facts militating for or against

a judicially inferred damages remedy. See Smith, 428 Mich at 648-652 (BOYLE, J.,

concurring in part and dissenting in part).

As to the first factor, as already discussed in detail, this Court and our Supreme Court have

determined that plaintiffs have established a clear violation of the Contracts Clauses of the United

States and Michigan Constitutions. See AFT Mich IV, 315 Mich App at 621; AFT Mich V, 501

Mich at 939. Thus, this factor weighs in favor of a judicially inferred damages remedy.

With respect to the second and third factors, US Const, art I, § 10 and Const 1963, art 1,

§ 10 both prohibit the enactment of a statute that impairs a contract, and the two provisions are

interpreted similarly. In re Certified Question, 447 Mich 765, 776-777; 527 NW2d 468 (1994).

However, “[n]ot every constitutional violation merits damages.” Mays, ___ Mich at ___, slip op

at 31. Importantly, the federal Contracts Clause has not historically provided a damages remedy.

See Carter v Greenhow, 114 US 317, 322; 5 S Ct 928, 29 L Ed 202 (1885). Rather, the United

States Supreme Court has held that a plaintiff who asserts that a state law violated the Contracts

Clause has only “a right to have a judicial determination declaring the nullity of the attempt to

impair its obligation. This is the only right secured to him by that clause of the constitution.” Id.

Thus, the remedy available for a Contracts Clause violation is generally declaratory or injunctive

relief. See id. We therefore conclude that the second and third factors weigh against recognition

of a damages remedy.

With respect to the fourth factor, “[t]he existence of alternative remedies is given

considerable weight, but it is not dispositive.” Mays, ___ Mich at ___, slip op at 33 (citation

omitted). Importantly, in this case, plaintiffs clearly enjoyed an alternative remedy in that they

were able to bring equitable claims. Not only were plaintiffs able to bring equitable claims, they

also recovered on these claims. As already discussed in depth, plaintiffs’ remedy in this case

specifically included the distribution of the balance of an escrow account. See AFT Mich IV, 315

Mich App at 628; AFT Mich V, 501 Mich at 939. Thus, this factor weighs against recognition of

a damages remedy. Finally, as to the fifth factor, which requires us to assess all other relevant

considerations, we can discern no other relevant circumstances that would support a conclusion

that damages should be inferred for a Contracts Clause violation. Indeed, as already stated, the

federal Contracts Clause has not historically provided a damages remedy and equitable relief was

available to plaintiffs. On the basis of these factors, we conclude that it is unwarranted to conclude

that damages should be inferred for a Contracts Clause violation.

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Because money damages are not available to plaintiffs for the constitutional tort, we must

next consider whether the equitable interest awarded in this case amounted to an award of damages.

We find it helpful to first consider the meaning of the word “interest.” Various definitions of the

term “interest” make reference to its relationship to the use of money. The United States Supreme

Court stated in Deputy v Du Pont, 308 US 488, 497-498; 60 S Ct 363; 84 L Ed 2d 416 (1940), that

the “usual import of the term” “interest” “is the amount which one has contracted to pay for the

use of borrowed money,” and added that “interest on indebtedness means compensation for the

use or forbearance of money” (quotations and citation omitted). “Interest” has also been defined

as “the compensation allowed by law, or fixed by the parties, for the use or forbearance of money,

or as damages for its detention.” Marion v City of Detroit, 284 Mich 476, 484; 280 NW 26 (1938)

(quotations and citation omitted). Additionally, in Balch v Detroit Trust Co, 312 Mich 146, 152;

20 NW2d 138 (1945), our Supreme Court stated that “interest” “is paid for the use of money . . . or

given for the delay in the payment of money” (quotation marks and citations omitted).

A reference to dictionary definitions supports the same basic definitions. Merriam-

Webster’s Collegiate Dictionary (11th ed) defines “interest” as “a charge for borrowed money

generally a percentage of the amount borrowed.” Random House Webster’s College Dictionary

(1997) defines “interest” as “a sum paid or charged for the use of money or for borrowing money”

or “such a sum expressed as a percentage of the amount borrowed to be paid over a given period[.]”

Thus, interest is compensation for the use of another’s money.

Importantly,

Michigan has long recognized the common-law doctrine of awarding

interest as an element of damages. The doctrine recognizes that money has a “use

value” and interest is a legitimate element of damages used to compensate the

prevailing party for the lost use of its funds. Furthermore, the decision whether to

award interest as an element of damages is not dependent upon a contractual

promise to pay interest . . . . [T]he pivotal factor in awarding such interest is

whether it is necessary to allow full compensation. [Gordon Sel-Way, Inc v Spence

Bros, Inc, 438 Mich 488, 499; 475 NW2d 704 (1991) (citations omitted).]

Accordingly, in Michigan, the purpose of common law interest is to compensate plaintiffs

for loss of use of their funds and to “allow full compensation.” Id. Indeed, Courts have long

recognized equitable prejudgment interest as “an element of [a litigant’s] complete compensation.”

Osterneck v Ernst & Whinney, 489 US 169, 175; 109 S Ct 987; 103 L Ed 2d 146 (1989) (quotation

marks and citation omitted; alteration added). “Prejudgment interest is normally designed to make

the plaintiff whole and is part of the actual damages sought to be recovered.” Monessen

Southwestern R Co v Morgan, 486 US 330, 335; 108 S Ct 1837; 100 L Ed 2d 349 (1988). See also

Library of Congress v Shaw, 478 US 310, 321; 106 S Ct 2957; 92 L Ed 2d 250 (1986) (adopting

the view that “[p]rejudgment interest . . . is considered as damages, not a component of ‘costs’ ”)

(citation omitted); General Motors Corp v Devex Corp, 461 US 648, 655-656 n 10; 103 S Ct 2058

2058; 76 L Ed 2d 211 (1983) (“prejudgment interest represents ‘delay damages’ and should be

awarded as a component of full compensation”); Miller v Robertson, 266 US 243, 258; 45 S Ct

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73; 69 L Ed 265 (1924) (“in order to arrive at fair compensation, the court in the exercise of a

sound discretion may include interest or its equivalent as an element of damages”).

In this case, plaintiffs sought interest in order to be fully compensated for their losses, i.e.,

the deprivation of the benefit of possessing and using the funds during the years prior to judgment.

Plaintiffs claimed that, because the interest on the money held in escrow was “less than one percent

of the principal in total,” they would not be made whole if the trial court did not order defendants

to pay interest. When determining that it was proper to award equitable interest, the trial court

noted that plaintiffs “were deprived of the use of the funds.” The trial court also noted that

defendants’ taking of a portion of plaintiffs’ wages hindered “plaintiffs’ respective abilities to

provide for and ‘meet the daily necessities of life.’ ” Based in part on these facts, the trial court

found that it was proper to award interest and applied MCL 600.6455(2) in order to calculate the

amount of interest owed to plaintiffs. Thus, the interest awarded in this case was a compensatory

damage in that it compensated plaintiffs for the delay and expense that resulted from the loss of

use of their property. Consequently, the trial court erred by awarding equitable interest.

Finally, plaintiffs in Docket No. 345418 argue that they are entitled to interest beyond that

of the interest earned in the interest-bearing account because this Court and the Michigan Supreme

Court specifically ordered that the funds be returned “with interest.” We disagree.

Courts should interpret the terms in a judgment in the same manner as courts interpret

contracts. Smith v Smith, 278 Mich App 198, 200; 748 NW2d 258 (2008). We construe contractual

terms in context, Henderson v State Farm Fire & Cas Co, 460 Mich 348, 356-357; 596 NW2d 190

(1999), and this Court generally construes together agreements that are related to the same subject

matter, Culver v Castro, 126 Mich App 824, 826; 338 NW2d 232 (1983). Courts should not read

language into contracts, In re Smith Trust, 274 Mich App 283, 288-289; 731 NW2d 810 (2007),

or rewrite clear contractual language, DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 372;

817 NW2d 504 (2012).

In this case, the trial court ordered that the money was to be “placed in a separate interest

bearing account,” and not spent or disbursed until further order of the court. Additionally, the

September 2010 stipulated order provided that if it was determined that former MCL 38.1343e

was unconstitutional or unenforceable, defendants would “repay to each member of MPSERS who

contributed under MCL 38.1343e the amount of their individual contribution, plus any interest

earned thereon in the separate interest-bearing account.” In AFT Mich IV, 315 Mich App at 628,

this Court ordered that the trial court “shall direct the return of the subject funds, with interest, to

the relevant employees.” The Michigan Supreme Court ordered that the funds be refunded to

plaintiffs in accordance with this Court’s judgment. AFT Mich V, 501 Mich at 939. Construing

the judgments together, like this Court would construe contracts together, we conclude that this

Court’s reference to interest means the interest from the interest-bearing account, not some other

form of interest. Indeed, had this Court wished to order the payment of judgment interest, it would

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have done so. Consequently, we decline to read the word “judgment” before the word “interest”

in this Court’s previous order.2

We affirm in part and reverse in part. We do not retain jurisdiction.

/s/ Thomas C. Cameron

/s/ Kathleen Jansen

/s/ Kirsten Frank Kelly

2

Based on this holding, the remainder of the parties’ arguments on appeal are rendered moot and

need not be considered. See Attorney Gen v Pub Serv Comm, 269 Mich App 473, 485; 713 NW2d

290 (2005).

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