JOSEPH LASH V CITY OF TRAVERSE CITY
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
June 1, 2006
9:00 a.m.
JOSEPH LASH,
Plaintiff-Appellant,
v
No. 263873
Grand Traverse Circuit Court
LC No. 04-024067-CL
CITY OF TRAVERSE CITY,
Defendant-Appellee.
Official Reported Version
Before: Zahra, P.J., and Murphy and Neff, JJ.
ZAHRA, P.J. (dissenting in part).
I respectfully dissent from the conclusion of the majority that plaintiff has a private right
of action for money damages. I conclude that plaintiff has standing to challenge the city's
interpretation of MCL 15.602 and can therefore enforce the statute through a declaratory action.
Thus, contrary to the majority, I conclude that there is no implied private right of action to
recover money damages under MCL 15.602. Second, a majority of this panel disagrees with the
lead opinion's conclusion that MCL 15.602 requires plaintiff to reside within 20 road miles of the
city's nearest border. Rather, a majority concludes that MCL 15.601 et seq., when read in its
entirety, requires the 20-mile distance referred to in MCL 15.602 to be measured in a straight
line. I would reverse the judgment of the trial court and remand for further proceedings
consistent with this opinion.
I. Statutory Construction
In addressing both issues presented in this case, we are called on to interpret MCL 15.601
et seq. "'[O]ur primary task in construing a statute, is to discern and give effect to the intent of
the Legislature.'" Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004), quoting Sun Valley
Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). "The words of a statute provide
'the most reliable evidence of its intent . . . .'" Id. (citation omitted); see also Halloran v Bhan,
470 Mich 572, 577; 683 NW2d 129 (2004). "'Statutory language should be construed
reasonably, keeping in mind the purpose of the statute.'" Draprop Corp v Ann Arbor, 247 Mich
App 410, 415; 636 NW2d 787 (2001) (citation omitted). The fair and natural import of the terms
employed, in view of the subject matter of the law, governs. In re Wirsing, 456 Mich 467, 474;
573 NW2d 51 (1998). The words used by the Legislature are given their common and ordinary
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meaning. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1
(2005).
If the statutory language under review is clear, the Legislature is presumed to have
intended the meaning it plainly expressed. Courts may not speculate about the probable intent of
the Legislature beyond the language expressed in the statute. Pohutski v City of Allen Park, 465
Mich 675, 683; 641 NW2d 219 (2002). "If the statutory language is unambiguous, we must
presume that the Legislature intended the meaning it clearly expressed and further construction is
neither required nor permitted." Nastal, supra at 720, citing Sun Valley Foods Co, supra at 236.
"An ambiguity can be found only where the language of a statute as used in its particular context
has more than one common and accepted meaning. Thus, where common words used in their
ordinary fashion lead to one reasonable interpretation, a statute cannot be found ambiguous."
Colucci v McMillin, 256 Mich App 88, 94; 662 NW2d 87 (2003).
II. No Private Right of Action for Money Damages
The residency of public employees act, MCL 15.601 et seq. (the Act), consists of three
statutory provisions. MCL 15.601 defines the terms "public employer" and "school district."
MCL 15.602 addresses the parameters for the residency requirements a public employer can
place on its public employees. Finally, MCL 15.603 addresses the employment contracts to
which the Act applies. Significantly, the Act is silent regarding any right by an employee to
collect money damages for a municipality's failure to follow the Act. Had the Legislature
intended an aggrieved employee to have the right to pursue money damages against its public
employer, it would have so stated.
I reject plaintiff 's claim that without an implied private right of action to pursue money
damages, there is no method for plaintiff to enforce the Act. Plaintiff has standing to pursue a
declaratory action for a judgment interpreting MCL 15.602. Specifically, MCR 2.605(A)(1)
states: "In a case of actual controversy within its jurisdiction, a Michigan court of record may
declare the rights and other legal relations of an interested party seeking a declaratory judgment,
whether or not other relief is or could be sought or granted."
Here, plaintiff alleges he was wrongly denied employment because he failed to meet the
residency requirements of MCL 15.602. This constitutes an actual controversy within the
meaning of MCR 2.605(A)(1) sufficient to allow plaintiff to pursue a declaratory action asking
the trial court to review whether defendant properly interpreted and applied MCL 15.602.
Because the express language of MCL 15.601 et seq. does not provide a right of action
for money damages, and because plaintiff, through the use of a declaratory action, has an
adequate means of seeking redress for a violation of the statute, no implied private right of action
to recover money damages is available to plaintiff. Office Planning Group, Inc v BaragaHoughton-Keweenaw Child Dev Bd, 472 Mich 479, 501-504; 697 NW2d 871 (2005); White v
Chrysler Corp, 421 Mich 192, 199-206; 364 NW2d 619 (1984).
III. The 20-Mile Distance Referred to in MCL 15.602 Should be
Measured in a Straight Line
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Defendant claims that the word "miles" in MCL 15.602(2) refers to a distance to be
measured by following existing roads. In Burke v Newton Chief of Police, 374 Mass 450, 452;
373 NE2d 949 (1978), the Massachusetts Supreme Judicial Court, when reviewing a nearly
identical statute, concluded that, "[h]ad the Legislature desired the method of measurement to be
by following existing roads we assume it would have used the term 'road miles.' The use of the
term 'mile' without the qualifying adjective to mean 'road miles' is to insert into the statute a
word not found therein." Because inserting the word "road" before "miles" in the statute
"subverts the intent of the Legislature as demonstrated by clear and plain statutory language,"
Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 729; 614 NW2d 607 (2000),
defendant's interpretation of MCL 15.602(2) must be rejected.
The lead opinion erroneously concludes that "reasonable minds can differ with regard to
the meaning of [MCL 15.602]." Ante at ___. However, as observed in Burke, construing the
word "miles" to mean "road miles" is unreasonable.
To hold that conformity to the statutes depends on the road distance
between an officer's home and the nearest boundary of the city or town of
employment would be to subject such an officer to unpredictable future events
over which he has no control. An officer could find himself suddenly in
noncompliance by the closing of a road, the conversion of a road to one-way
traffic, or perhaps even the installation of a rotary. [Burke, supra at 452.]
In addition, reviewing the text of the Act as a whole, it is very clear the Legislature
intended the miles to be measured in a straight line. The lead opinion erroneously relies on the
legislative analysis of the Act, rather than the text of the Act, to conclude that the purpose
underlying the residency requirement is to ensure that public employees are within a reasonable
distance of their municipalities in case of emergencies. However, as shown by the language of
MCL 15.602(1), the purpose of this Act is to restrict the power public employers have to impose
residency requirements:
Except as provided in subsection (2), a public employer shall not require .
. . that a person reside within a specified geographic area or within a specified
distance or travel time from his or her place of employment as a condition of
employment or promotion by the public employer. [Emphasis added.]
While MCL 15.602(2) creates the 20-mile exception to this prohibition, the purpose of the Act is
not to ensure that employees are within a reasonable distance of the municipalities in which they
work. Rather, it is very clear from the text of the Act that it is intended to restrict residency
requirements.
Because the language of MCL 15.602 clearly shows that it was enacted in order to afford
public employees greater freedom and flexibility in choosing their places of residence, it is
evident that the Legislature did not intend the phrase "20 miles" in MCL 15.602(2) to be
construed to mean less than 20 miles depending on existing roads and the conditions of those
roads. Measuring the statutorily prescribed 20-mile distance according to "road miles" places a
greater restriction on public employee freedom of choice than would measuring the statutorily
prescribed distance according to a straight-line measurement. Because the Legislature intended
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to severely limit the power of municipal governments to impose restrictive residency
requirements, plaintiff 's method of measuring distances under MCL 15.602 is correct.
Also without merit is defendant's claim, adopted by the lead opinion, that "road miles" is
the proper measure because the purpose of residency requirements is to ensure that public
employees may quickly reach the municipality in times of emergency. The proper inquiry is not
the purpose a municipality may have for imposing a residency requirement; it is the Legislature's
purpose in passing MCL 15.602. The clear language of MCL 15.602(1) itself prohibits a public
employer from requiring that a person reside "within a specified distance or travel time" except
as provided in subsection 2. That subsection permits some consideration of distance, but not of
travel time. Thus, the Legislature has indicated that the ability to arrive quickly is not a valid
consideration in devising a municipal residency requirement.
I would reverse the judgment of the trial court and remand for further proceedings.
/s/ Brian K. Zahra
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