Jones v. Powell

¶1(concurring). I write separately to point out that Smith v Dep’t of Public Health,1does not directly address whether plaintiffs can recover against individuals for violations of rights protected under the Michigan Constitution. Instead of expand*338ing the holding of Smith to bar recovery against individuals, I would affirm the Court of Appeals decision solely on the ground that plaintiff has an alternative remedy. Id. at 651-652.

¶2In Smith, this Court consolidated two related cases, Smith v Dep’t of Public Health and Will v Dep’t of Civil Service. The plaintiff in Smith, a ward of the state, was committed to an institution for the mentally retarded at the age of nineteen months; as a result of this early evaluation, he spent his entire life in state institutions. Smith, supra at 639. His estate brought suit against various state agencies2 alleging causes of action for (1) false imprisonment, (2) negligent and intentional breaches of the state’s duty to care for the plaintiff, and (3) violations of his due process and equal protection rights under the Michigan Constitution. It also sought damages under 42 USC 1983. Id. at 551.

¶3In Will, the plaintiff was a state employee. He believed that he had been passed over for a promotion with the State Police because a security check revealed that his brother was a student activist. Id. at 546. He brought suit against the Department of Civil Service and the Department of State Police, as well as the director of the State Police and the State Personnel Director, but in their official capacities only. Id. at 547, 583. He alleged various state and federal constitutional violations.

¶4*339Neither the plaintiff in Smith nor in Will claimed that a state agent, acting individually and not in an official capacity, violated his state constitutional rights. Smith did not decide whether an individual state agent can be held liable for such violations. Therefore, I cannot agree that Smith always precludes relief in cases such as the case on appeal. Smith addresses whether a cause of action for a state constitutional violation is available against the state; it does not hold that an action is available against the state, alone.

¶5; Smith does limit recovery for violations of state constitutional rights to specific situations where a plaintiff has no alternative remedy. Here, plaintiff does have alternative remedies; she was able to pursue state common-law tort claims as well as an action under 42 USC 1983 against the individual police officers for violation of her federal constitutional rights. The existence of a federal cause of action does not necessarily protect an individual’s state constitutional rights. However, I agree with Judge Murphy’s assessment that plaintiffs’ § 1983 action vindicated their state constitutional rights. The federal and state constitutional provisions at issue are sufficiently analogous for the purposes of this case.3

¶6It may well be that alternative remedies will frequently exist for violations arising from the state constitution. But one should not assume that will always be the case. I would not give Smith so expansive an *340interpretation as this per curiam does, foreclosing relief to future plaintiffs who have no alternative remedy when individual state officials violate their state constitutional rights.

¶7A grant of leave to appeal would be a more appropriate vehicle for the purpose of holding that no cause of action exists here.