# Silverman v. University of Michigan Board of Regents

> Michigan Supreme Court · May 17, 1994 · 445 Mich. 209

URL: https://www.frixlaw.com/law-library/cases/9690083

## Case

- **Full name:** Silverman v. University of Michigan Board of Regents
- **Court:** Michigan Supreme Court
- **Decided:** May 17, 1994
- **Citations:** 445 Mich. 209; 516 N.W.2d 54; 1994 Mich. LEXIS 883
- **Precedential status:** Published
- **Opinion:** Dissent by Levin
- **Judges:** Levin, Cavanagh, Brickley, Boyle, Riley, Griffin, Mallett
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Parkwood Ltd. Dividend Housing Ass'n v. State Housing Development Authority, 468 Mich. 763 (2003).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9690083

## Opinion text

Levin, J.
(dissenting). I adhere to the view that *218 peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required. 1 In the instant case, as indicated in the majority opinion, legal assessment is required. The majority acknowledges:
This Court has not decided a case in which the *219 statute is at issue, and the Court of Appeals has issued a small number of decisions that do not shed significant light on the present dispute.[ 2 ]
i
The majority holds that a complaint seeking money damages from the state, as well as declaratory relief, may only be filed in the Court of Claims because that is the "sole forum that is capable of deciding the whole case.” 3 The premise of the majority is thus that the circuit court does not have power to enter a declaratory judgment that a unit of state government is indebted to a citizen, and to order ancillary relief.
The majority ignores that the 1984 legislation, 4 granting concurrent jurisdiction to the Court of Claims of a demand for declaratory judgment, specifically provided that the jurisdiction then conferred "is not intended to be exclusive of the jurisdiction of the circuit court over demands for declaratory and equitable relief conferred by section 605” of the Revised Judicature Act. 5 _
*220 II
The real issue in the instant case is whether the circuit court had jurisdiction to enter a judgment declaring Silverman to be a resident and entitled to a refund.
The 1984 amendments 6 neither added to nor detracted from the powers of the circuit court, and have nothing to do with the correct resolution of that issue.
The Court of Claims Act waives the state’s sovereign immunity from suit, and speaks of claims ex contractu and ex delicto.
The per curiam opinion does not address Silver-man’s argument that in seeking a refund of money claimed to have been wrongfully exacted by the university, he is not seeking to maintain an action ex contractu or ex delicto, but rather is seeking a declaration of rights and the equitable remedy of restitution of money wrongfully exacted by the university as a precondition to his remaining a student at the university.
I question the accuracy of the majority’s assumption that the circuit court did not have power, before the enactment of the Court of Claims Act, to order the refund of money wrong *221 fully exacted by a university as a precondition to attendance.
In Kosa v State Treasurer, 408 Mich 356 ; 292 NW2d 452 (1980), the plaintiff was permitted to maintain an action in the Court of Appeals seeking a writ of mandamus against the State Treasurer, the Legislature, and other state officials to compel the defendants to fund the Michigan Public School Employees’ Retirement System. 7 The enabling legislation, authorizing such actions to be filed in the Court of Appeals, 8 does not differ, insofar as specific reference to a power to enter a judgment directing the payment of money, from RJA § 605 or the provision of the 1984 amendments stating that the jurisdiction conferred on the Court of Claims respecting declaratory judgments is not to be exclusive of the jurisdiction of the circuit court over demands therefor conferred by RJA § 605.
I would grant leave to appeal and dissent from the reversal of the judgment of the Court of Appeals.
People v Wright, 439 Mich 914 , 914-915 (1992) (Levin, J., dissenting); Roek v Chippewa Valley Bd of Ed, 430 Mich 314, 322 ; 422 NW2d 680 (1988) (Levin, J., separate opinion); Grames v Amerisure Ins Co, 434 Mich 867 , 868-875 (1990) (Levin, J., dissenting); People v Little, 434 Mich 752, 769-770 ; 456 NW2d 237 (1990) (Levin, J., dissenting); People v Wrenn, 434 Mich 885 , 885-886 (1990) (Levin, J., dissenting); Harkins v Northwest Activity Center, Inc, 434 Mich 896 , 899 (1990) (Levin, J., dissenting); Dep’t of Social Services v American Commercial Liability Ins Co, 435 Mich 508, 515 ; 460 NW2d 194 (1990) (Levin, J., separate opinion); Yahr v Garcia, 436 Mich 872 , 872-873 (1990) (Levin, J., dissenting); Universal Underwriters Ins Co v Vallejo, 436 Mich 873 , 873-874 (1990) (Levin, J., dissenting); People v Stephens, 437 Mich 903 , 903-910 (1991) (Levin, J., dissenting); People v Berkey, 437 Mich 40, 54 ; 467 NW2d 6 (1991) (Levin, J., dissenting); Turner v Washtenaw Co Rd Comm, 437 Mich 35, 38-39 ; 467 NW2d 4 (1991) (Levin, J., separate opinion); Lepior v Venice Twp, 437 Mich 955 , 956-966 (1991) (Levin, J., dissenting); Rochester Hills v Southeastern Oakland Co Resource Recovery Authority, 440 Mich 852 , 852-856 (1992) (Levin, J., dissenting); In re Reinstatement of Eston (Grievance Administrator v Eston), 440 Mich 1205 , 1205-1207 (1992) (Levin, J., dissenting); In re Reinstatement of Callanan, 440 Mich 1207 , 1207-1209 (1992) (Levin, J., dissenting); McFadden v Monroe Civil Service Comm, 440 Mich 890 , 890-891 (1992) (Levin, J., dissenting); Holly Twp v Dep’t of Natural Resources (Holly Twp v Holly Disposal, Inc), 440 Mich 891 , 891-893 (1992) (Levin, J., dissenting); Marzonie v ACIA, 441 Mich 522, 535-539 ; 495 NW2d 788 (1992) (Levin, J., dissenting); People v Waleed, 441 Mich 902 , 902-903 (1992) (Levin, J., dissenting); People v Hardison, 441 Mich 913 , 914-916 (1993) (Levin, J., dissenting); People v Justice, 441 Mich 916 , 917-919 (1993) (Levin, J., dissenting).
See Schweiker v Hansen, 450 US 785, 791 ; 101 S Ct 1468 ; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error”); Leis v Flynt, 439 US 438, 457-458 ; 99 S Ct 698 ; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting) ("Summary reversal 'should be reserved for palpably clear cases of . . . error.’ Eaton v Tulsa, 415 US 697, 707 [ 94 S Ct 1228 ; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]”).
Ante, p 215.
Ante, p 217.
1984 PA 212 , MCL 600.6419a; MSA 27A.6419(1).
Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state. [MCL 600.605; MSA 27A.605.]
Const 1963, art 6, § 13, provides:
The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior *220 courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court.
In addition to the powers and jurisdiction conferred upon the court of claims by section 6419, the court of claims has concurrent jurisdiction of any demand for equitable relief and any demand for a declaratory judgment when ancillary to a claim filed pursuant to section 6419. The jurisdiction conferred by this section is not intended to be exclusive of the jurisdiction of the circuit court over demands for declaratory and equitable relief conferred by section 605. [MCL 600.6419a; MSA 27A.6419(1). Emphasis added.]
Similarly, see Musselman v Governor, 200 Mich App 656 ; 505 NW2d 288 (1993), lv gtd 445 Mich 881 (1994).
An action for mandamus against a state officer shall be commenced in the court of appeals, or in the circuit court in the county in which venue is proper or in Ingham county, at the option of the party commencing the action. [MCL 600.4401(1); MSA 27A.440KD.]
An action for mandamus against a state officer may be brought in the Court of Appeals or the circuit court. [MCR 3.305(A)(1).]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9690083. Public record. Not legal advice.