ALBERT GARRETT V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
ALBERT GARRETT, GREGORY DOCKERY
and DAN SHEARD,
UNPUBLISHED
August 19, 2008
Plaintiffs-Appellees,
v
CITY OF DETROIT, DETROIT CITY COUNCIL
and DETROIT BUILDING AUTHORITY,
Nos. 269809; 273463
Wayne Circuit Court
LC No. 05-521567-CL
Defendants-Appellants.
Before: White, P.J., and Zahra and Fort Hood, JJ.
FORT HOOD, J. (dissenting.).
I respectfully dissent. I would affirm the trial court’s order denying defendant’s motion
for summary disposition based on governmental immunity and granting plaintiffs’ request for a
preliminary injunction.
Review of a trial court’s determination regarding a motion for summary disposition is de
novo. Feyz v Mercy Memorial Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). Although
defendants moved for summary disposition based on MCR 2.116(C)(8) and MCR 2.116(C)(10),
summary disposition based on governmental immunity is properly raised under MCR
2.116(C)(7). A motion under MCR 2.116(C)(7) tests whether a claim is barred because of
immunity granted by law and requires consideration of all documentary evidence filed or
submitted by the parties. Burton v Reed City Hosp Corp, 471 Mich 745, 757; 691 NW2d 424
(2005); MCR 2.116(G)(5). When reviewing a motion based on MCR 2.116(C)(7), well-pleaded
allegations are accepted as true and construed in favor of the nonmoving party. Dampier v
Wayne Co, 233 Mich App 714, 720; 592 NW2d 809 (1999).
The defense motion for summary disposition was denied when the trial court determined
that plaintiffs’ claims sound in contract and, therefore, avoided the application of governmental
immunity. I would affirm, albeit on other grounds.
In Mack v Detroit, 467 Mich 186, 190-192; 649 NW2d 47 (2002), superseded in part on
other grounds Costa v Community Emergency Med Services, Inc, 475 Mich 403; 716 NW2d 236
(2006), the female plaintiff, a police officer, attained the status of lieutenant and held various
positions in the department. While employed as the acting inspector of the sex crimes unit, the
plaintiff alleged that she was repeatedly propositioned by her male supervisors for sex. The
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plaintiff rebuffed the sexual advances, partly because of her sexual orientation as a lesbian, and
complained to her superiors about the unwelcome conduct. She asserted that her superiors
refused to take any action, and consequently, she endured additional discrimination and
harassment. The plaintiff alleged that she was assigned a desk job answering telephones and was
prohibited from participating in investigations. The plaintiff then filed suit, alleging intentional
infliction of emotional distress and violations of the city of Detroit’s charter that precluded
discrimination on the basis of sex and sexual orientation. Ultimately, the Supreme Court
concluded that a governmental entity may not create a cause of action against itself in violation
of the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq:
Plaintiff contends that the charter expressly creates a private cause of
action for sexual orientation discrimination. However, whether the charter
attempted to create a private cause of action for sexual orientation discrimination
is an irrelevant inquiry because we hold that the charter could not create a cause
of action against the city without contravening state governmental immunity law.
Const 1963, art 7, § 22 governs the authority of a city to enact a charter:
Under general laws the electors of each city and village shall have the
power and authority to frame, adopt and amend its charter, and to amend an
existing charter of the city or village heretofore granted or enacted by the
legislature for the government of the city or village. Each such city and village
shall have power to adopt resolutions and ordinances relating to its municipal
concerns, property and government, subject to the constitution and law. No
enumeration of powers granted to cities and villages in this constitution shall limit
or restrict the general grant of authority conferred by this section. [Emphasis
added.]
Thus, although art 7, § 22 grants broad authority to municipalities, it clearly
subjects their authority to constitutional and statutory limitations.
One such statutory limitation involves governmental immunity. In the
governmental tort liability act (GTLA), the Legislature expressly stated that
“[e]xcept as otherwise provided in this act, a governmental agency is immune
from tort liability if [it] is engaged in the exercise or discharge of governmental
function.” MCL 691.1407(1). Accordingly, a governmental agency is immune
unless the Legislature has pulled back the veil of immunity and allowed suit by
citizens against the government. The GTLA allows suit against a governmental
agency in only five areas. However, there are other areas outside the GTLA
where the Legislature has allowed specific actions against the government to
stand, such as the Civil Rights Act. Further, municipalities may be liable pursuant
to 42 USC 1983. Monell v New York City DSS, 436 US 658; 98 S Ct 2018; 56 L
Ed 2d 611 (1978).
However, none of the exceptions where a suit is allowed against the
government can be read to allow suit for sexual orientation discrimination.
Likewise, no statute grants governmental agencies the authority to create an
immunity exception for sexual orientation discrimination or waive immunity in
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the area of civil rights. Notably, the CRA, which makes a municipality liable for
specific civil rights violations, neither provides a cause of action for sexual
orientation discrimination nor grants municipalities the authority to create one.
MCL 37.2101 et seq. Moreover, the CRA limits complaints to causes of action
for violations of the act itself:
A person alleging a violation of this act may bring a civil action for
appropriate injunctive relief or damages, or both. [MCL 37.2801(1) (emphasis
added).]
In sum, without some express legislative authorization, the city cannot
create a cause of action against itself in contravention of the broad scope of
governmental immunity established by the GTLA. No such legislative act has
recognized sexual orientation discrimination claims. Accordingly, this Court
declines to circumvent the limitations placed on a municipality by the Legislature
and recognize a cause of action against the city for sexual orientation
discrimination. [Mack, supra at 193-197 (footnotes omitted).]
Relying on Mack, supra, defendant asserts that this case falls within the parameters of
governmental immunity. However, review of Michigan law reveals that the Legislature “has
allowed specific actions against the government to stand” in the context of bids. In the Bidders
on Public Works Act (BPWA), MCL 123.501 et seq,1 the Legislature has expressly authorized a
cause of action against a municipality for the failure to follow the procedures of a competitive
bidding process. The Legislature has granted municipalities the power to enter into competitive
bidding with private entities to provide certain public services. MCL 123.501. The
governmental entity accepting the bids may rate the bidders “according to their experience,
equipment and resources and be furnished with proposals, plans and specifications for only such
type and quantity of work as their qualifications as outlined in section one of this act would
warrant.” MCL 123.503. The Legislature created a cause of action against the governmental
entity as follows:
Any person feeling himself aggrieved at the determination of any such
officer, board, commission, committee or department shall have the right of
appeal by mandamus, certiorari or other proper remedy to the supreme court of
the state of Michigan, or in any proper case to any circuit court having
jurisdiction. [MCL 123.506 (emphasis added).]
Defendant’s contention, that this factual scenario is governed by the Mack decision, is not
supported by the Legislature’s authorization of a cause of action that arises out of the bidding
process. Therefore, in my view, plaintiffs may maintain an action for a violation of Detroit
1
Although this statute was not raised below, issues of statutory construction present questions of
law that are reviewed de novo. Cruz v State Farm Mut Auto Ins Co, 466 Mich 588, 594; 648
NW2d 591 (2002). Issues of law for which all necessary facts have been presented may be
addressed on appeal. Miller v Inglis, 223 Mich App 159, 168; 567 NW2d 253 (1997).
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Ordinances, § 18-5-104(b). The trial court reached the correct result in denying defendants’
motion for summary disposition based on governmental immunity, but for the wrong reason.
Under such circumstances, the trial court’s ruling may be affirmed. Hess v Cannon Twp, 265
Mich App 582, 596; 696 NW2d 742 (2005).
With regard to Docket No. 273463, I would also affirm the trial court in part and remand.
Defendants failed to make and support the motion for summary disposition with regard to the
claim of preemption by the collective bargaining agreements and the Public Employee Relations
Act (PERA), MCL 423.210 et seq. See Quinto v Cross & Peters Co, 451 Mich 358, 362; 547
NW2d 314 (1996). With regard to the issue of standing, plaintiff Garrett’s involvement in the
litigation as a taxpayer was insufficient because it failed to assert a substantial interest
detrimentally affected in a manner different from the citizenry at large. Moses, Inc v SEMCOG,
270 Mich App 401, 414; 716 NW2d 278 (2006). However, plaintiffs Dockery and Sheard
alleged standing based not only as taxpayers, but also as city employees who were laid off due to
the privatization of their jobs without following the proper procedures. Although defendants
disputed the job status of these individuals, defendants failed to provide documentary evidence in
support as required by Quinto, supra. See also MCR 2.116(G)(4-6).
In Docket No. 269809, I would affirm. In Docket No. 273463, I would affirm in part.
/s/ Karen M. Fort Hood
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