Implied Right of Action for Damages is Available in Michigan
On July 26, 2022, Michigan Supreme Court acknowledged that “the recognition and redress of constitutional violations are quintessentially judicial functions” required of the judiciary by the separation of powers. 1
The court embraced this role with gusto, holding that “money damages are an available remedy for constitutional torts unless (1) the Constitution has delegated to another branch of government the obligation to enforce the constitutional right at issue . . . or (2) another branch of government has provided a remedy that we consider adequate.” In a separate opinion, the court held that governmental immunity is not a defense to allegations of constitutional torts. 2
The groundbreaking Bauserman opinion was closely divided. The deciding Justice wrote a separate concurrence, in which she limited Bauserman’s reach to constitutional claims brought under Michigan’s Declaration of Rights, as opposed to the Michigan Constitution. 3
She also defined the term “adequate remedy” to mean something broader than an equally comprehensive remedy. So long as the constitutional right is “preserved and not rendered ineffectual,” the remedy is adequate and there is no need for a damages remedy under the Michigan Constitution. 4
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. 5
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. 6
Lawsuits against the State must be brought in the court of claims. 7
Lawsuits against counties, cities, and most other units of government are brought in the local circuit court. 8
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. 9
Courts are divided on whether this qualified immunity applies to intentional torts.
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