If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS GRANT BAUSERMAN, KARL WILLIAMS and FOR PUBLICATION TEDDY BROE, on Behalf of Themselves and All December 5, 2019 Others Similarly Situated, Plaintiffs-Appellees, v No. 333181 Court of Claims UNEMPLOYMENT INSURANCE AGENCY, LC No. 15-000202-MM Defendant-Appellant. ON REMAND Before: GADOLA, P.J., and METER and FORT HOOD, JJ. GADOLA, J. (concurring). I concur with the analysis and reasoning of the majority opinion, given the controlling legal precedent cited in the majority opinion, as applied to the facts alleged in plaintiffs’ complaint. I write separately to urge that our Supreme Court revisit the fractured decision in Smith v Dep’t of Pub Health, 428 Mich 540; 410 NW2d 749 (1987), which recognized the existence of a constitutional tort claim arising under the Michigan Constitution. In particular, the Supreme Court should address more clearly under what circumstances, if any, a judicially- inferred damages remedy is appropriate for violations of the Due Process Clause of the Michigan Constitution. Id. at 647 (BOYLE, J., concurring in part).1 As an initial matter, I think it somewhat debatable whether the damages issue is even before us on remand. In remanding this case to us, the Supreme Court directed that we “consider the Agency’s argument that it is entitled to summary disposition on the ground that plaintiffs 1 The Supreme Court has granted leave to appeal in Mays v Governor, 323 Mich App 1; 916 NW2d 277 (2018), lv gtd 503 Mich 1030 (2019). It is hoped that Mays will ultimately provide needed clarity with respect to these questions. -1- failed to raise cognizable constitutional tort claims.” Bauserman v Unemployment Ins Agency, 503 Mich 169, 193 n 20; 931 NW2d 539 (2019). Whether plaintiffs have a cognizable claim is arguably a more narrow question than whether, if a cognizable claim exists, plaintiffs may recover damages under a judicially-inferred remedy. In other words, this court must first determine whether plaintiffs have made out a constitutional claim before moving on to determine whether they may recover damages for a violation of their constitutional due process rights. In asking us to determine whether plaintiffs raised “cognizable constitutional tort claims,” the Supreme Court arguably asked us to examine the first question, but not necessarily the second question, which touches exclusively upon what an appropriate remedy might be for a “cognizable” claim. The majority opinion concludes that plaintiffs have (1) raised a cognizable constitutional claim, and (2) that they may recover damages for the alleged due process violations. Given the imprecise nature of the instructions on remand I cannot conclude that we are beyond our scope in addressing both questions. Because a tort claim would not generally have much value in the absence of a financial recovery, it is reasonable to conclude that the question of damages is part and parcel of determining whether such a claim is “cognizable.” Under existing precedent, as first laid out in ...
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