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.