One Court of Justice

In Wayne County Employees Retirement System v. Charter County of Wayne, the Michigan Court of Appeals held that Wayne County’s ordinance, which re-directed funds meant to protect retirees from inflation to offset the County’s annual required contribution to the retirement system, violated  the Public Employee Retirement System Investment Act (“PERSIA”), MCL 38.1132.  Read more »

In Niederhouse v. Palmerton, the Court of Appeals held that a deputy was acting “in the course of employment” while operating an airboat at an outdoor festival, despite the fact that he was off-duty at the time, because the deputy was acting in furtherance of the Sheriff’s Department’s purpose of providing rides to the public when he took his family for a ride in the airboat.  Accordingly, he was entitled to summary disposition on the grounds of governmental immunity. Read more »

In Elba Township v. Gratiot County Drain Commissioner, the Michigan Supreme Court held that the lower courts improperly exercised equitable jurisdiction over a challenge to the drain commissioner’s compliance with statutory signature requirements because the challenge, which did not implicate a violation of the Constitution, was limited under the drain code to certiorari review. Read more »

In Hunter v. Sisco, the Michigan Court of Appeals held that a plaintiff could not recover damages for emotional injuries against the City of Flint Transportation Department because under the governmental immunity act a government agency may only be held liable for “bodily injury” and property damage.  The court rejected the plaintiff’s argument that “bodily injury” under MCL 691.1405 encompasses injuries for emotional damage, pain and suffering.  The court reasoned that immunity is only waived for “physical or corporeal injury to the body.”  The legislature did not intend to allow damages for emotional suffering, even if a plaintiff also suffered a bodily injury.

The Court of Appeals held that governmental immunity could protect a police officer from her failure to report child abuse or neglect under the Child Protection Law, in Jones v. Bitner (In re Estate of Jones).  The Government Tort Liability Act (“GTLA”) provides protections for government employees acting in their official capacities, including that where they are accused of a negligent tort, they must be grossly negligent and the proximate cause of the loss.  The plaintiffs argued that the Child Protection Law abrogated this immunity by providing that a mandatory reporter who fails to report “is civilly liable for the damages proximately caused.”  The Court disagreed, holding that the GTLA governed as the more recent and more specific statute.  The Court then remanded the case to allow the trial court to determine whether the plaintiff’s requested amended complaint could meet the GTLA’s standard.

Governor Snyder has exercised his constitutional authority to ask the Michigan Supreme Court to issue an advisory opinion regarding the constitutionality of Michigan’s new right-to-work legislation.  That legislation, set to take effect on March 27, 2013, prevents employers from requiring employees to join a union as a condition of employment.  If the Michigan Supreme Court accepts the request, the Snyder administration will have succeeded in significantly reducing the time it takes to resolve constitutional challenges to the legislation. 

The advisory-opinion request identifies four questions of statewide importance:

1. Whether the right-to-work legislation applying to public employers “interferes with the authority of the Civil Service Commission” and therefore “is not lawfully binding on the classified state civil service”?
2. If the right-to-work legislation is not binding on the classified civil service, does the legislation violate the Michigan and federal constitutional requirements of equal protection of the law because the legislation does not apply to state classified employees but does apply to other employees?
3. Does the legislation violate equal protection of the law because it does not apply to all employees in public or private sector bargaining units?
4. Does the right-to-work legislation applicable to public employers violate the Michigan Constitution’s prohibition on changing the purpose of a law after its original passage by either house of the Michigan legislature? 

Governor Snyder’s request indicates that an advisory opinion is necessary because the State’s collective-bargaining agreements expire on December 31, 2013.  Contract negotiations are likely to start this summer.  Governor Snyder is asking that the Court issue an advisory opinion before negotiations begin so that all parties know whether the right-to-work legislation will apply to all state employees.

In Hannay v Department of Transportation, an employee of the Department of Transportation failed to obey a stop sign and hit Heather Lynn Hannay.  Hannay was seriously injured and sued the Department.  Hannay sought damages for lost wages and service expenses allowed by the No-Fault Act. The Department argued that the Government Tort Liability Act (“GTLA”) barred Hannay from recovering such damages, because the GTLA only permits plaintiffs to recover damages for “bodily injury” or “property damage.”  The Court of Appeals disagreed and affirmed the trial court’s ruling that such damages were allowed. The Court held that the lost-wages and service damages that Hannay sought were a species of damages recoverable because of bodily injury, and so were permitted by the GTLA.  The Court also upheld the trial court’s factual finding regarding the amount of Hannay’s lost wages.

In Yono v. Department of Transportation, the Michigan Court of Appeals ruled that governmental liability for the portion of highways “designed for vehicular travel” in MCL 691.1402(1) extends to parallel parking spaces.  The plaintiff broke her ankle while walking in a parallel parking space along highway M-22 in Suttons Bay and sued for her injuries.  The Department of Transportation moved to dismiss on the grounds of governmental immunity, claiming the parallel parking area is outside of the highway exception to governmental tort liability because vehicles do not use the lanes as a thoroughfare.  The trial court denied the motion.

The Michigan Court of Appeals affirmed, concluding that the highway – including the portion designated for parallel parking – is a contiguous whole, and the portion where parallel parking is permitted is not physically separated from the center of the highway by a median or other barrier.  The court also reasoned that the Department’s interpretation of the phrase “designed for vehicular travel” could exclude other areas not designed to be a thoroughfare such as median u-turn lanes, left-turn lanes, or on and off ramps.  Further, vehicles must travel on parallel parking spaces in order to park, and may travel on them in some instances such as passing slowed or stopped traffic on the left or to make a right-hand turn.  Based on this reasoning, the majority concluded that the highway exception extends to parallel parking spaces.

Judge Talbot dissented, relying on Michigan Supreme Court interpretation of the term “travel,” in which the Court cautioned against a broad definition of the term, saying it should not include “traversing even the smallest distance.”  Grimes v. Dep’t of Trans., 475 Mich. 75, 89 (2006).  Judge Talbot suggested that the majority mischaracterized the Department’s purported definition of the lanes designated for vehicular travel and that, in this case, the parking lanes were clearly delineated and should not come within the highway exception’s scope.  Thus, Judge Talbot would have granted governmental immunity.

On remand, the Court of Appeals in Department of Environmental Quality v Township of Worth considered whether remedial measures, fines, and attorney fees imposed against Worth Township for allowing private septic systems to leak into Lake Huron were authorized under Michigan’s Natural Resources and Environmental Protection Act (“NREPA”) or violated the Headlee Amendment to the Michigan Constitution.  The Court of Appeals held that NREPA did authorize the ordered remedies and that the remedial measures did not violate the Headlee Amendment.

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The Michigan Supreme Court issued an opinion regarding whether four separate ballot proposals to amend the Michigan Constitution complied with the constitutional and statutory republication requirement necessary for the proposed amendments to be placed on the November 2012 general election ballot.  Docket Nos. 145748, 145753, 145754, and 145755.  Specifically, the Court determined whether the petitions satisfied the requirement to republish any existing provisions of the Constitution that the proposed amendment, if adopted, would alter or abrogate.  Const 1963, art 12 § 2; MCL 168.482(3).  The Court reaffirmed its prior caselaw holding that an existing constitutional provision is only altered when the amendment actually adds to, deletes from, or changes the existing wording, i.e., the actual text, of the provision.  The Court further reaffirmed that an amendment only abrogates an existing provision when it renders that provision “wholly inoperative.”  Applying these standards, Justice Zahra, joined by Chief Justice Young and Justices Markman and Mary Beth Kelly, held that the proposals regarding the collective-bargaining, bridge, and two-thirds vote to raise taxes amendments did not alter or abrogate existing constitutional provisions, and thus did not require republication.  However, the majority held that the proposed amendment that would allow for the construction of eight new casinos in Michigan, all of which “shall be granted liquor licenses,” would abrogate article 4, § 40 of the Michigan Constitution because it would nullify the Liquor Control Commission’s (LCC) “complete” control over the granting of liquor licenses.  Accordingly, the majority concluded that republication of article 4, § 40 on the petition was necessary, and the failure to do so is fatal to the proposed casino amendment being placed on the November ballot. Read more »