sovereign immunity in Michigan

2022AVOIDANCE OF GOVERNMENTAL IMMUNITY “Governmental immunity is the public policy, derived from the traditional doctrine of sovereign immunity, that limits imposition of tort liability on a governmental agency.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 155-156 ; 615 NW2d 702 (2000).

2022AVOIDANCE OF GOVERNMENTAL IMMUNITY “Governmental immunity is the public policy, derived from the traditional doctrine of sovereign immunity, that limits imposition of tort liability on a governmental agency.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 155-156 ; 615 NW2d 702 (2000).

1998We held: The doctrine of sovereign immunity has long been firmly established in the common law of this State, and it may not be held to have been waived or abrogated except that result has been accomplished by an express statutory enactment or by necessary inference from a statute. [Id. at 173; see also McNair v State Hwy Dep’t, 305 Mich 181, 187 ; 9 NW2d 52 (1943), and Greenfield Construction Co v Dep’t of State Hwys, 402 Mich 172, 193 ; 261 NW2d 718 (1978).] Sovereign immunity is not implicated in this case.

1998We held: The doctrine of sovereign immunity has long been firmly established in the common law of this State, and it may not be held to have been waived or abrogated except that result has been accomplished by an express statutory enactment or by necessary inference from a statute. [Id. at 173; see also McNair v State Hwy Dep’t, 305 Mich 181, 187 ; 9 NW2d 52 (1943), and Greenfield Construction Co v Dep’t of State Hwys, 402 Mich 172, 193 ; 261 NW2d 718 (1978).] Sovereign immunity is not implicated in this case.

2022And the state’s sovereign immunity, guaranteed by the Eleventh Amendment of the United States Constitution, precludes plaintiffs from suing the state in federal court to remedy a violation of either the Michigan Constitution, Pennhurst State Sch and Hosp v Halderman, 465 US 89, 121 ; 104 S Ct 900 ; 79 L Ed 2d 67 (1984) (“[A] claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.”), or a parallel provision of the federal Constitution, Seminole Tribe of Florida v Florida, 517 US 44, 5

2022And the state’s sovereign immunity, guaranteed by the Eleventh Amendment of the United States Constitution, precludes plaintiffs from suing the state in federal court to remedy a violation of either the Michigan Constitution, Pennhurst State Sch and Hosp v Halderman, 465 US 89, 121 ; 104 S Ct 900 ; 79 L Ed 2d 67 (1984) (“[A] claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.”), or a parallel provision of the federal Constitution, Seminole Tribe of Florida v Florida, 517 US 44, 5

1987Thus, we are persuaded to accept at face value the Supreme Court's statement in Quern, supra, p 341 , that Congress did not intend "by the general language *258 of § 1983 to override the traditional sovereign immunity of the States." See Thiboutot v Maine, 405 A2d 230, 236 (Me, 1979), aff'd 448 US 1 ; 100 S Ct 2502 ; 65 L Ed 2d 555 (1980), and Kapil v Ass'n of Pennsylvania State College & University Faculties, 68 Pa Cmwlth 287; 448 A2d 717, 720 (1982), rev'd on other grounds 504 PA 92 ; 470 A2d 482 (1983). [ Karchefske, supra, pp 8-10 .

1987In Karchefske v Dep’t of Mental Health, 143 Mich App 1 ; 371 NW2d 876 (1985), this Court held that, while the state is a person under § 1983, a *786 § 1983 action is nevertheless barred by the doctrine of sovereign immunity.

2023The Legislature enacted both the PWDCRA and the ELCRA in 1976. 52 While these statutes did not expressly state that they created a right to a trial by jury, they referred to the state as a potential employer who faced liability for discriminating in the fashion prohibited by the statutes and conferred jurisdiction on the circuit court to entertain those 49 Greenfield Constr, 402 Mich at 195 . 50 Van Antwerp v State, 334 Mich 593, 601 ; 55 NW2d 108 (1952). 51 Rowland, 477 Mich at 212 (quotation marks and citation omitted). 52 1976 PA 453 (ELCRA); 1976 PA 220 (PWDCRA). 17 actions.

2023The Legislature enacted both the PWDCRA and the ELCRA in 1976. 52 While these statutes did not expressly state that they created a right to a trial by jury, they referred to the state as a potential employer who faced liability for discriminating in the fashion prohibited by the statutes and conferred jurisdiction on the circuit court to entertain those 49 Greenfield Constr, 402 Mich at 195 . 50 Van Antwerp v State, 334 Mich 593, 601 ; 55 NW2d 108 (1952). 51 Rowland, 477 Mich at 212 (quotation marks and citation omitted). 52 1976 PA 453 (ELCRA); 1976 PA 220 (PWDCRA). 17 actions.

2022Some of the cases commonly cited by proponents of Bivens, such as Little v Barreme, 6 US (2 Cranch) 170 ; 2 L Ed 243 (1804), were trespass actions in which the defense did not implicate any constitutional issues.

2022Some of the cases commonly cited by proponents of Bivens, such as Little v Barreme, 6 US (2 Cranch) 170 ; 2 L Ed 243 (1804), were trespass actions in which the defense did not implicate any constitutional issues.

2014ANALYSIS A. THE GOVERNMENTAL TORT LIABILITY ACT Sovereign immunity and governmental immunity, while related concepts, are not synonymous.26 “Sovereign immunity refers to the immunity of the state from suit and from liability, while governmental immunity refers to the similar immunities enjoyed by the state’s political subdivisions.”27 As we recently explained in In re Bradley Estate, the GTLA replaced and was preceded by Michigan jurisprudence, dating back to 1837, “recogniz[ing] the preexisting common-law concept of sovereign immunity, which immunizes the ‘sovereign’ state from all suits to w

2014ANALYSIS A. THE GOVERNMENTAL TORT LIABILITY ACT Sovereign immunity and governmental immunity, while related concepts, are not synonymous.26 “Sovereign immunity refers to the immunity of the state from suit and from liability, while governmental immunity refers to the similar immunities enjoyed by the state’s political subdivisions.”27 As we recently explained in In re Bradley Estate, the GTLA replaced and was preceded by Michigan jurisprudence, dating back to 1837, “recogniz[ing] the preexisting common-law concept of sovereign immunity, which immunizes the ‘sovereign’ state from all suits to w

2010We agree with Justice Griffin [in his partial dissent in Li v Feldt (After Remand), 434 Mich 584, 599 ; 456 NW2d 55 (1990), overruled in part by Pohutski] that, at most, the language of the second sentence requires an historical analysis of the state’s sovereign immunity, but we have no occasion to undertake such an analysis here.

2010We agree with Justice Griffin [in his partial dissent in Li v Feldt (After Remand), 434 Mich 584, 599 ; 456 NW2d 55 (1990), overruled in part by Pohutski] that, at most, the language of the second sentence requires an historical analysis of the state’s sovereign immunity, but we have no occasion to undertake such an analysis here.

1987Thus, we are persuaded to accept at face value the Supreme Court’s statement in Quern, supra, p 341 , that Congress did not intend "by the general language of § 1983 to override the traditional sovereign immunity of the States.” See Thiboutot v Maine, 405 A2d 230, 236 (Me, 1979), aff'd 448 US 1 ; 100 S Ct 2502 ; 65 L Ed 2d 555 (1980), and Kapil v Ass’n of Pennsylvania State College & University Faculties, 68 Pa Cmwlth 287; 448 A2d 717, 720 (1982), rev’d on other grounds 504 PA 92 ; 470 A2d 482 (1983). [.Karchefske, supra, pp 8-10.

1985NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment. [1] The Court in Karchefske v Dep't of Mental Health, 143 Mich App 1 ; 375 NW2d 876 (1985), held that a state is a "person" but that the action was barred by the state's traditional sovereign immunity, citing Quern v Jordan, 440 US 332 ; 99 S Ct 1139 ; 59 L Ed 2d 358 (1979).

1958Royston v. City of Charlotte, 278 Mich 255 ; City of Detroit v. Blackeby, 21 Mich 84 (4 Am Rep 450); Butler v. City of Grand Rapids, 273 Mich 674 ; Johnson v. Board of Ontonagon County Commissioners, 253 Mich 465 ; Daszkiewicz v. Detroit Board of Education, 301 Mich 212 ; Whitehead v. Detroit Board of Education, 139 Mich 490 ; Brink v. City of Grand Rapids, 144 Mich 472 ; Daniels v. Grand Rapids Board of Education, 191 Mich 339 (LRA1916F, 468); Heino v. City of Grand Rapids, 202 Mich 363 (LRA1918F, 528); Gunther v. Cheboygan County Road Commissioners, 225 Mich 619 ; Tzatzken v. City of Detroit

1943In Mead v. Michigan Public Service Commission, 303 Mich. 168, 173 , we said: “The doctrine of sovereign immunity has long been firmly established in the common law of this State, and it may not be held to have been waived or abrogated except that result has been accomplished by an express statutory enactment or by necessary inference from a statute. ’ ’ See also, Butler v. City of Grand Rapids, 273 Mich. 674 , and Manion v. State Highway Commissioner, 303 Mich. 1 .

2026Similarly, “[i]t is well established that governmental immunity is not an affirmative defense but is instead a characteristic of government.” Fairly v Dep’t of Corrections, 497 Mich 290, 298 ; 871 NW2d 129 (2015).

2020The Court of Appeals, citing Fairley, 497 Mich at 297 , considered the issue of plaintiff’s compliance with MCL 600.6431 as an issue of immunity, reasoning that the verification requirement was a condition precedent for avoiding governmental liability.

2024Plaintiff relies on caselaw from the United States Supreme Court holding that “recognized a narrow exception” to the general immunity that states enjoy from suits “under the terms of the Eleventh Amendment and the doctrine of sovereign immunity;” “certain private parties” may “seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law.” Whole Woman’s Health v Jackson, 595 US 30 , 39; 142 S Ct 522 ; 211 L Ed 2d 316 (2021), citing Ex Parte Young, 209 US 123 ; 28 S Ct 441 ; 52 L Ed 714 (1908).

2024Plaintiff relies on caselaw from the United States Supreme Court holding that “recognized a narrow exception” to the general immunity that states enjoy from suits “under the terms of the Eleventh Amendment and the doctrine of sovereign immunity;” “certain private parties” may “seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law.” Whole Woman’s Health v Jackson, 595 US 30 , 39; 142 S Ct 522 ; 211 L Ed 2d 316 (2021), citing Ex Parte Young, 209 US 123 ; 28 S Ct 441 ; 52 L Ed 714 (1908).

2023“From the time of Michigan’s statehood, this Court’s jurisprudence has recognized that the state, as sovereign, is immune from suit unless it consents, and that any relinquishment of sovereign immunity must be strictly interpreted.” 45 Consent to sue the state was initially granted on a case-specific basis. 46 As this proved burdensome, the state in 1842 created a Board of State Auditors to decide whether to consent to suit, and in the 1920s, this function transferred to the State Administrative Board, which could settle and pay claims. 47 By enacting the COCA in 1939, the Legislature, “for th

2023“From the time of Michigan’s statehood, this Court’s jurisprudence has recognized that the state, as sovereign, is immune from suit unless it consents, and that any relinquishment of sovereign immunity must be strictly interpreted.” 45 Consent to sue the state was initially granted on a case-specific basis. 46 As this proved burdensome, the state in 1842 created a Board of State Auditors to decide whether to consent to suit, and in the 1920s, this function transferred to the State Administrative Board, which could settle and pay claims. 47 By enacting the COCA in 1939, the Legislature, “for th

2022Thus, the doctrine of sovereign immunity in the state is presently “a creature of the legislature.” Blue Harvest, Inc v Dep’t of Transp, 288 Mich App 267, 274 ; 792 NW2d 798 (2010) (quotation marks and citations omitted).

2022Thus, the doctrine of sovereign immunity in the state is presently “a creature of the legislature.” Blue Harvest, Inc v Dep’t of Transp, 288 Mich App 267, 274 ; 792 NW2d 798 (2010) (quotation marks and citations omitted).

2022“Sovereign immunity and governmental immunity, while related concepts, are not synonymous.” Hannay v Dep’t of Transp, 497 Mich 45, 58 ; 860 NW2d 67 (2014).

2022“Sovereign immunity and governmental immunity, while related concepts, are not synonymous.” Hannay v Dep’t of Transp, 497 Mich 45, 58 ; 860 NW2d 67 (2014).

2021ANALYSIS As we recently recognized in Sanford, the WICA is a relatively new law that waives this state’s sovereign immunity and creates a cause of action for certain people wrongfully imprisoned by the state of Michigan. 10 “Before March 29, 2017, people who were 5 Sanford v Michigan, 506 Mich 10 , 14; 954 NW2d 82 (2020). 6 People v McIntire, 461 Mich 147, 152 ; 599 NW2d 102 (1999) (quotation marks and citation omitted). 7 Krohn v Home-Owners Ins Co, 490 Mich 145, 156 ; 802 NW2d 281 (2011) (citations omitted). 8 McQueer v Perfect Fence Co, 502 Mich 276, 286 ; 917 NW2d 584 (2018) (quotation mar

2021ANALYSIS As we recently recognized in Sanford, the WICA is a relatively new law that waives this state’s sovereign immunity and creates a cause of action for certain people wrongfully imprisoned by the state of Michigan. 10 “Before March 29, 2017, people who were 5 Sanford v Michigan, 506 Mich 10 , 14; 954 NW2d 82 (2020). 6 People v McIntire, 461 Mich 147, 152 ; 599 NW2d 102 (1999) (quotation marks and citation omitted). 7 Krohn v Home-Owners Ins Co, 490 Mich 145, 156 ; 802 NW2d 281 (2011) (citations omitted). 8 McQueer v Perfect Fence Co, 502 Mich 276, 286 ; 917 NW2d 584 (2018) (quotation mar

2021ANALYSIS As we recently recognized in Sanford, the WICA is a relatively new law that waives this state’s sovereign immunity and creates a cause of action for certain people wrongfully imprisoned by the state of Michigan. 10 “Before March 29, 2017, people who were 5 Sanford v Michigan, 506 Mich 10 , 14; 954 NW2d 82 (2020). 6 People v McIntire, 461 Mich 147, 152 ; 599 NW2d 102 (1999) (quotation marks and citation omitted). 7 Krohn v Home-Owners Ins Co, 490 Mich 145, 156 ; 802 NW2d 281 (2011) (citations omitted). 8 McQueer v Perfect Fence Co, 502 Mich 276, 286 ; 917 NW2d 584 (2018) (quotation mar

2021ANALYSIS As we recently recognized in Sanford, the WICA is a relatively new law that waives this state’s sovereign immunity and creates a cause of action for certain people wrongfully imprisoned by the state of Michigan. 10 “Before March 29, 2017, people who were 5 Sanford v Michigan, 506 Mich 10 , 14; 954 NW2d 82 (2020). 6 People v McIntire, 461 Mich 147, 152 ; 599 NW2d 102 (1999) (quotation marks and citation omitted). 7 Krohn v Home-Owners Ins Co, 490 Mich 145, 156 ; 802 NW2d 281 (2011) (citations omitted). 8 McQueer v Perfect Fence Co, 502 Mich 276, 286 ; 917 NW2d 584 (2018) (quotation mar

2021ANALYSIS As we recently recognized in Sanford, the WICA is a relatively new law that waives this state’s sovereign immunity and creates a cause of action for certain people wrongfully imprisoned by the state of Michigan. 10 “Before March 29, 2017, people who were 5 Sanford v Michigan, 506 Mich 10 , 14; 954 NW2d 82 (2020). 6 People v McIntire, 461 Mich 147, 152 ; 599 NW2d 102 (1999) (quotation marks and citation omitted). 7 Krohn v Home-Owners Ins Co, 490 Mich 145, 156 ; 802 NW2d 281 (2011) (citations omitted). 8 McQueer v Perfect Fence Co, 502 Mich 276, 286 ; 917 NW2d 584 (2018) (quotation mar

2021ANALYSIS As we recently recognized in Sanford, the WICA is a relatively new law that waives this state’s sovereign immunity and creates a cause of action for certain people wrongfully imprisoned by the state of Michigan. 10 “Before March 29, 2017, people who were 5 Sanford v Michigan, 506 Mich 10 , 14; 954 NW2d 82 (2020). 6 People v McIntire, 461 Mich 147, 152 ; 599 NW2d 102 (1999) (quotation marks and citation omitted). 7 Krohn v Home-Owners Ins Co, 490 Mich 145, 156 ; 802 NW2d 281 (2011) (citations omitted). 8 McQueer v Perfect Fence Co, 502 Mich 276, 286 ; 917 NW2d 584 (2018) (quotation mar

2021ANALYSIS As we recently recognized in Sanford, the WICA is a relatively new law that waives this state’s sovereign immunity and creates a cause of action for certain people wrongfully imprisoned by the state of Michigan. 10 “Before March 29, 2017, people who were 5 Sanford v Michigan, 506 Mich 10 , 14; 954 NW2d 82 (2020). 6 People v McIntire, 461 Mich 147, 152 ; 599 NW2d 102 (1999) (quotation marks and citation omitted). 7 Krohn v Home-Owners Ins Co, 490 Mich 145, 156 ; 802 NW2d 281 (2011) (citations omitted). 8 McQueer v Perfect Fence Co, 502 Mich 276, 286 ; 917 NW2d 584 (2018) (quotation mar

2021ANALYSIS As we recently recognized in Sanford, the WICA is a relatively new law that waives this state’s sovereign immunity and creates a cause of action for certain people wrongfully imprisoned by the state of Michigan. 10 “Before March 29, 2017, people who were 5 Sanford v Michigan, 506 Mich 10 , 14; 954 NW2d 82 (2020). 6 People v McIntire, 461 Mich 147, 152 ; 599 NW2d 102 (1999) (quotation marks and citation omitted). 7 Krohn v Home-Owners Ins Co, 490 Mich 145, 156 ; 802 NW2d 281 (2011) (citations omitted). 8 McQueer v Perfect Fence Co, 502 Mich 276, 286 ; 917 NW2d 584 (2018) (quotation mar

2020Specifically, MCL 691.1753 permits “[a]n individual convicted under the law of this state and subsequently imprisoned in a state correctional facility for 1 or more crimes that he or she did not commit” to “bring an action for compensation against this state in the court of claims as allowed by this act.” To do so, the plaintiff must show that he or she “served at least part of the sentence” for those crimes.7 A “state correctional facility” is defined in the WICA as “a correctional facility maintained and operated by the department of corrections.”8 The WICA’s section governing compensation a

1943In Mead v. Michigan Public Service Commission, 303 Mich. 168, 173 , we said: “The doctrine of sovereign immunity has long been firmly established in the common law of this State, and it may not be held to have been waived or abrogated except that result has been accomplished by an express statutory enactment or by necessary inference from a statute. ’ ’ See also, Butler v. City of Grand Rapids, 273 Mich. 674 , and Manion v. State Highway Commissioner, 303 Mich. 1 .