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157335-7 - Melissa Mays v Governor

Melissa Mays, Michael Adam Mays, Jacqueline Pemberton, Keith John Pemberton, Elnora Carthan, Rhonda Kelso, and All Others Similarly Situated,

 

Deborah Labelle

Julie Hurwitz

 

Plaintiffs-Appellees,

 

v

(Appeal from Ct of Appeals)

 

 

(Ct of Claims – Boonstra, M.)

 

Governor of Michigan, State of Michigan, Department of Environmental Quality, and Department of Health and Human Services,  

 

Nathan Gambill

Charles Cavanagh

 

Defendants-Appellants,

 

and

 

 

Darnell Earley and Jerry Ambrose,

 

 

 

Defendants-Appellees,

 

and

 

 

City of Flint,

Not Participating.

 

Summary

In these Flint water cases, plaintiffs filed a class action complaint in the Court of Claims alleging four Counts of constitutional torts:  (1) Const 1963, art 1, § 17, substantive due process—state created danger; (2) Const 1963, art 1, § 17, substantive due process—violation of bodily integrity; (3) Const 1963, art 1, § 17, substantive due process—denial of fair and just treatment in investigation; and (4) Const 1963, art 10, § 2, inverse condemnation. The complaint alleges wrongdoing committed by two groups of defendants.  The first set of defendants includes former Governor Rick Snyder, the Michigan Department of Environmental Quality, and the Michigan Department of Health and Human Services (state defendants). The second set includes former Flint Emergency Managers Darnell Earley and Jerry Ambrose (EM defendants). The state and EM defendants separately moved for summary disposition on all four Counts, arguing that plaintiffs failed to satisfy the statutory notice requirements of the Court of Claims Act, MCL 600.6431, failed to allege facts to establish a constitutional violation, and otherwise failed to allege facts to establish the elements of their claims. The Court of Claims granted summary disposition to all defendants on plaintiffs’ Counts 1 and 3, but denied summary disposition on Counts 2 and 4. The state defendants appealed; the EM defendants and plaintiffs filed claims of cross-appeal. In a split published opinion, the Court of Appeals affirmed. Among other things, the majority held that in cases alleging constitutional torts there is a “harsh and unreasonable consequences” exception to the notice requirements of MCL 600.6431. It further held that there was a substantive due process claim for violation of bodily integrity. The dissent stated that, because plaintiffs failed to comply with the notice provision in MCL 600.6431(3), he would have reversed and remanded for entry of summary disposition in favor of all defendants. The state defendants filed an application for leave to appeal (Docket Nos. 157335-7), as did the EM defendants (Docket Nos. 157340-2). The Supreme Court has granted leave to address: (1) when plaintiffs’ cause of action accrued, see Henry v Dow Chemical Co, 501 Mich 965 (2018), and Frank v Linkner, 500 Mich 133 (2017); (2) whether the Court of Appeals erred in holding that the fraudulent concealment exception in MCL 600.5855 applies to the statutory notice period in MCL 600.6431(3); (3) whether the Court of Appeals erred in holding that under the Court of Claims Act, MCL 600.6401 et seq., there is a “harsh and unreasonable consequences” exception to the notice requirement of MCL 600.6431(3) when a constitutional tort is alleged, compare McCahan v Brennan, 492 Mich 730 (2012) and Rusha v Dep’t of Corrections, 307 Mich App 300 (2014); (4) if there is such an exception, whether it is met by the facts alleged in plaintiffs’ amended complaint; (5) whether the Court of Appeals erred in recognizing a constitutional tort for violation of bodily integrity under Const 1963, art 1, § 17, and, if not, whether plaintiffs properly alleged such a violation, and whether a damages remedy is available for such a violation, see Smith v Dep’t of Public Health, 428 Mich 540 (1987), Jones v Powell, 462 Mich 329 (2000); (6) for purposes of the plaintiffs’ inverse condemnation claim, whether plaintiffs have alleged direct action by defendants against plaintiffs’ property, and a special or unique injury, see Peterman v Dep’t of Natural Resources, 446 Mich 177, 190 (1994); Spiek v Dep’t of Transp, 456 Mich 331, 348 (1998); and (7) for purposes of plaintiffs’ inverse condemnation claim, the manner in which the class of similarly situated persons should be defined.​