quick facts

Implied Right of Action for Damages in “Appropriate Cases”

The Michigan Supreme Court recognized that a cause of action brought directly under the constitution against the State may exist in “appropriate cases.” 1 But the Court did not explain what an “appropriate” case is. 2 It also stated that when “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.” 3 Following this Supreme Court case, the Michigan Court of Appeals recognized a right to sue the State for damages under the due process clause. 4 But in a more recent, equal-protection case, the Michigan Supreme Court held that there is no implied constitutional right to damages. 5 In doing so, the Court relied on a sentence in the Michigan Constitution Equal Protection provision, saying that “[t]he legislature shall implement this section by appropriate legislation.” 6 Importantly, in 2020, Michigan Supreme Court held that state officials may be held liable for state substantive due process violation when there is no alternative remedy and the actions are shocking to the conscience. 7

Michigan Governmental Tort Liability Act

Plaintiffs will fare only slightly better under the Michigan Governmental Tort Liability Act, which grants broad immunity for government units, including the State and municipalities, engaged in government functions. 8 This immunity is waived only in certain narrow instances of negligence, including the operation of motor vehicles and public hospitals, and the maintenance of highways and public buildings. 9 Lawsuits against the State must be brought in the court of claims. 10 Lawsuits against counties, cities, and most other units of government are brought in the local circuit court. 11

Tort actions against government employees in their personal capacities will likely be a plaintiff’s best option when intentional torts are involved. Government employees enjoy qualified immunity that protects them in the exercise of a government function when they reasonably believe they are acting within the scope of their authority and their conduct is not “gross[ly] negligen[t]” or taken in bad faith. 12 Courts are divided on whether this qualified immunity applies to intentional torts.