substantive due process claim in Michigan

2024A substantive due- process claim requires the claimant to demonstrate that the government action was so arbitrary as to “shock the conscience.” Id. at 200 .

2022Mettler Walloon, 281 Mich App at 197 . “[W]hen executive action is challenged in a substantive due process claim, the claimant must show that the action was so arbitrary (in the constitutional sense) as to shock the conscience.” Id.at 197, 200.

2008See County of Sacramento v. Lewis, 523 U.S. 833, 846-47 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998); Burton v. Richmond, 370 F.3d 723 , 729 (8th Cir. 2004). [Koscielski, supra at 902 (emphasis added).] In United Artists Theatre Circuit, Inc v Twp of Warrington, PA, 316 F3d 392 (CA 3, 2003), Judge (now Justice) Samuel A. Alito held that the proper standard for evaluating the substantive due process claim was whether the supervisors’ actions (allegedly delaying approval of a proposed theater development so that the township could obtain an impact fee offered by a competing developer) shocked the

2008See County of Sacramento v. Lewis, 523 U.S. 833, 846-47 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998); Burton v. Richmond, 370 F.3d 723 , 729 (8th Cir. 2004). [Koscielski, supra at 902 (emphasis added).] In United Artists Theatre Circuit, Inc v Twp of Warrington, PA, 316 F3d 392 (CA 3, 2003), Judge (now Justice) Samuel A. Alito held that the proper standard for evaluating the substantive due process claim was whether the supervisors’ actions (allegedly delaying approval of a proposed theater development so that the township could obtain an impact fee offered by a competing developer) shocked the

2022“The essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests.” Id. at 402 .

2020See also In re Beck, 287 Mich App at 402 (“ ʻ[T]he essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests.’ A person claiming a deprivation of substantive due process ‘must show that the action was so arbitrary (in the constitutional sense) as to shock the conscience.’ ”) (citations omitted). 35 Rimmer-Bey v Brown, 62 F3d 789 , 791 n 4 (CA 6, 1995) (describing the task of showing conscience-shocking conduct as “a virtually insurmountable uphill struggle”).

2020See also Cruz v Puerto Rico Power Auth, 878 F Supp 2d 316, 328 (D Puerto Rico, 2012) (“ ‘The burden to show state conduct that “shocks the conscience” is extremely high, requiring “stunning” evidence of “arbitrariness and caprice” that extends beyond “[m]ere violations of state law, even violations resulting from bad faith” to “something more egregious and more extreme.” ’ ”), quoting J R v Gloria, 593 F3d 73, 80 (CA 1, 2010), in turn quoting DePoutot v Raffaelly, 424 F3d 112, 119 (CA 1, 2005); Al-Ami’n v Clarke, unpublished opinion of the United States District Court for the Eastern District

2008In Uhlrig v Harder, 64 F3d 567, 573 (CA 10, 1995), the panel noted that “the standard for judging a substantive due process claim is whether the challenged government action would shock the conscience of... judges.” (Quotation marks and citations omitted.) The panel further stated: [T]o satisfy the “shock the conscience” standard, a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.

2020In analyzing a substantive due-process claim, the “first and most essential [question is] . . . whether the interest allegedly infringed by the challenged government action . . . comes within the definition of life, liberty or property.” Id. at 225 (quotation marks omitted).

2019In analyzing a substantive due process claim, the “first and most essential [question is] . . . whether the interest allegedly infringed by the challenged government action . . . comes within the definition of life, liberty or property.” Id. at 225 (quotation marks omitted).

2008Most recently, in Collins v. Harker Heights, supra, at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it “can properly be *200 characterized as arbitrary, or conscience shocking, in a constitutional sense.” While the measure of what is conscience-shocking is no calibrated yard stick, it does, as Judge Friendly put it, “point the way.” Johnson v. Glick, 481 F.2d 1028, 1033 (CA2), cert. denied, 414 U.S. 1033 (1973). [Co of Sacramento, supra at 845-847 (emphases added).] Thus, when executive action is challenged in a substanti

2008We do know, however, that the “shock the conscience” standard requires a high level of outrageousness, because the Supreme Court has specifically admonished that a substantive due process violation requires more than *206 an ordinary tort.... [Id. at 574, citing Collins v City of Harker Hts, Texas, 503 US 115, 128 ; 112 S Ct 1061 ; 117 L Ed 2d 261 (1992).] “The Due Process Clause is not a guarantee against incorrect or ill-advised [governmental] decisions.’ ” Collins, supra at 129 (citation omitted). 2 *207 There are decisions from sister states applying the “shocks the conscience” test to lan

2020See also In re Beck, 287 Mich App at 402 (“ ʻ[T]he essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests.’ A person claiming a deprivation of substantive due process ‘must show that the action was so arbitrary (in the constitutional sense) as to shock the conscience.’ ”) (citations omitted). 35 Rimmer-Bey v Brown, 62 F3d 789 , 791 n 4 (CA 6, 1995) (describing the task of showing conscience-shocking conduct as “a virtually insurmountable uphill struggle”).

2020See also In re Beck, 287 Mich App at 402 (“ ʻ[T]he essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests.’ A person claiming a deprivation of substantive due process ‘must show that the action was so arbitrary (in the constitutional sense) as to shock the conscience.’ ”) (citations omitted). 35 Rimmer-Bey v Brown, 62 F3d 789 , 791 n 4 (CA 6, 1995) (describing the task of showing conscience-shocking conduct as “a virtually insurmountable uphill struggle”).

2020See also Cruz v Puerto Rico Power Auth, 878 F Supp 2d 316, 328 (D Puerto Rico, 2012) (“ ‘The burden to show state conduct that “shocks the conscience” is extremely high, requiring “stunning” evidence of “arbitrariness and caprice” that extends beyond “[m]ere violations of state law, even violations resulting from bad faith” to “something more egregious and more extreme.” ’ ”), quoting J R v Gloria, 593 F3d 73, 80 (CA 1, 2010), in turn quoting DePoutot v Raffaelly, 424 F3d 112, 119 (CA 1, 2005); Al-Ami’n v Clarke, unpublished opinion of the United States District Court for the Eastern District

2020See also Cruz v Puerto Rico Power Auth, 878 F Supp 2d 316, 328 (D Puerto Rico, 2012) (“ ‘The burden to show state conduct that “shocks the conscience” is extremely high, requiring “stunning” evidence of “arbitrariness and caprice” that extends beyond “[m]ere violations of state law, even violations resulting from bad faith” to “something more egregious and more extreme.” ’ ”), quoting J R v Gloria, 593 F3d 73, 80 (CA 1, 2010), in turn quoting DePoutot v Raffaelly, 424 F3d 112, 119 (CA 1, 2005); Al-Ami’n v Clarke, unpublished opinion of the United States District Court for the Eastern District

2020See also Cruz v Puerto Rico Power Auth, 878 F Supp 2d 316, 328 (D Puerto Rico, 2012) (“ ‘The burden to show state conduct that “shocks the conscience” is extremely high, requiring “stunning” evidence of “arbitrariness and caprice” that extends beyond “[m]ere violations of state law, even violations resulting from bad faith” to “something more egregious and more extreme.” ’ ”), quoting J R v Gloria, 593 F3d 73, 80 (CA 1, 2010), in turn quoting DePoutot v Raffaelly, 424 F3d 112, 119 (CA 1, 2005); Al-Ami’n v Clarke, unpublished opinion of the United States District Court for the Eastern District

2020See also Cruz v Puerto Rico Power Auth, 878 F Supp 2d 316, 328 (D Puerto Rico, 2012) (“ ‘The burden to show state conduct that “shocks the conscience” is extremely high, requiring “stunning” evidence of “arbitrariness and caprice” that extends beyond “[m]ere violations of state law, even violations resulting from bad faith” to “something more egregious and more extreme.” ’ ”), quoting J R v Gloria, 593 F3d 73, 80 (CA 1, 2010), in turn quoting DePoutot v Raffaelly, 424 F3d 112, 119 (CA 1, 2005); Al-Ami’n v Clarke, unpublished opinion of the United States District Court for the Eastern District

2020See also Cruz v Puerto Rico Power Auth, 878 F Supp 2d 316, 328 (D Puerto Rico, 2012) (“ ‘The burden to show state conduct that “shocks the conscience” is extremely high, requiring “stunning” evidence of “arbitrariness and caprice” that extends beyond “[m]ere violations of state law, even violations resulting from bad faith” to “something more egregious and more extreme.” ’ ”), quoting J R v Gloria, 593 F3d 73, 80 (CA 1, 2010), in turn quoting DePoutot v Raffaelly, 424 F3d 112, 119 (CA 1, 2005); Al-Ami’n v Clarke, unpublished opinion of the United States District Court for the Eastern District

2020See also Cruz v Puerto Rico Power Auth, 878 F Supp 2d 316, 328 (D Puerto Rico, 2012) (“ ‘The burden to show state conduct that “shocks the conscience” is extremely high, requiring “stunning” evidence of “arbitrariness and caprice” that extends beyond “[m]ere violations of state law, even violations resulting from bad faith” to “something more egregious and more extreme.” ’ ”), quoting J R v Gloria, 593 F3d 73, 80 (CA 1, 2010), in turn quoting DePoutot v Raffaelly, 424 F3d 112, 119 (CA 1, 2005); Al-Ami’n v Clarke, unpublished opinion of the United States District Court for the Eastern District

2020Guertin v Michigan, 912 F3d 907, 946 (CA 6, 2019) (McKeague, J., concurring in part and dissenting in part) (“At times we have treated these two elements (deprivation of a constitutional right and conscience-shocking behavior) as separate methods of stating a substantive-due-process claim.

2020Guertin v Michigan, 912 F3d 907, 946 (CA 6, 2019) (McKeague, J., concurring in part and dissenting in part) (“At times we have treated these two elements (deprivation of a constitutional right and conscience-shocking behavior) as separate methods of stating a substantive-due-process claim.

2020Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014).

2020Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014).

2018The Sixth Circuit concluded that no evidence permits a jury to find that Turbiak acted “maliciously and sadistically for the very purpose of causing harm.” Gohl, 836 F3d at 679 (emphasis added).

2018The Sixth Circuit concluded that no evidence permits a jury to find that Turbiak acted “maliciously and sadistically for the very purpose of causing harm.” Gohl, 836 F3d at 679 (emphasis added).

2018However, to survive dismissal, the alleged “violation of the right to bodily integrity must be so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Villanueva v City of Scottsbluff, 779 F3d 507, 513 (CA 8, 2015) (quotation marks and citation omitted); see also Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 198 ; 761 NW2d 293 (2008) (explaining that in the context of individual governmental actions or actors, to establish a substantive due process violation, “the governmental conduct must be so arbitrary and capricious as to shock the conscience.

2018However, to survive dismissal, the alleged "violation of the right to bodily integrity must be so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Villanueva v. City of Scottsbluff , 779 F.3d 507 , 513 (C.A.8, 2015) (quotation marks and citation omitted); see also Mettler Walloon, LLC v. Melrose Twp. , 281 Mich. App. 184 , 198, 761 N.W.2d 293 (2008) (explaining that in the context of individual governmental actions or actors, to establish a substantive due-process violation, "the governmental conduct must be so arbitrary and capricious as to shock the

2021“The essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests.” Id.

2019“The essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests.” Id.

2018Under this standard, to establish a substantive due-process violation, “the governmental conduct must be so arbitrary and capricious as to shock the conscience.” Cummins v Robinson Twp, 283 Mich App 677, 701 ; 770 NW2d 421 (2009) (quotation marks and citation omitted).

2018Under this standard, to establish a substantive due-process violation, “the governmental conduct must be so arbitrary and capricious as to shock the conscience.” Cummins v Robinson Twp, 283 Mich App 677, 701 ; 770 NW2d 421 (2009) (quotation marks and citation omitted).

2018See, e.g., AFT Mich. v. Michigan , 497 Mich. 197 , 245, 866 N.W.2d 782 (2015) (stating that whether a law infringes on "fundamental rights" is relevant in the context of a substantive due-process claim); In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38 , 490 Mich. 295 , 326, 806 N.W.2d 683 (2011) (stating the same with regard to an Equal Protection Clause claim); McBurney v. Young , 569 U.S. 221 , 226, 133 S.Ct. 1709 , 185 L.

2018See, e.g., AFT Mich. v. Michigan , 497 Mich. 197 , 245, 866 N.W.2d 782 (2015) (stating that whether a law infringes on "fundamental rights" is relevant in the context of a substantive due-process claim); In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38 , 490 Mich. 295 , 326, 806 N.W.2d 683 (2011) (stating the same with regard to an Equal Protection Clause claim); McBurney v. Young , 569 U.S. 221 , 226, 133 S.Ct. 1709 , 185 L.

2015See United States v Salerno, 481 US 739, 745 ; 107 S Ct 2095 ; 95 L Ed 2d 697 (1987).

2015See United States v Salerno, 481 US 739, 745 ; 107 S Ct 2095 ; 95 L Ed 2d 697 (1987).

2014In the context of government actions, a substantive due process violation is established only when the governmental conduct [is] so arbitrary and capricious as to shock the conscience. [Bonner v City of Brighton, 298 Mich App 693, 705-706 ; 828 NW2d 408 (2012) (citations and quotation marks omitted; alteration in original).] Additionally, [t]he party challenging a legislative enactment subject to rational basis review must negative every conceivable basis which might support it.

2014In the context of government actions, a substantive due process violation is established only when the governmental conduct [is] so arbitrary and capricious as to shock the conscience. [Bonner v City of Brighton, 298 Mich App 693, 705-706 ; 828 NW2d 408 (2012) (citations and quotation marks omitted; alteration in original).] Additionally, [t]he party challenging a legislative enactment subject to rational basis review must negative every conceivable basis which might support it.