Michigan Supreme Court may speed lawsuits for people suing the government

• Michigan is among 28 states where governments can automatically appeal when they lose a claim of government immunity
• The Michigan Supreme Court is mulling an end to that rule, first put in place in 2002
• Some government officials fear the worst if the rule is changed, but plaintiffs lawyers said it would make system fairer for litigants

Lawsuits against Michigan state agencies, schools, local governments and other public entities might proceed more quickly under a proposed change that has some appellate attorneys cheering and public officials fuming. 

The Michigan Supreme Court late last year proposed doing away with a 2002 rule that lets local and state government entities getting sued pause trial court proceedings automatically if denied immunity. Government entities that go this route on a case get bumped to the state Court of Appeals, where legal liability is determined before a local trial or settlement can begin. 

For governments getting sued, the stakes are high — if an immunity argument fails and a public body is deemed legally liable, taxpayer dollars would flow toward settling the case and paying for damages instead of funding public programs, fixing infrastructure or outfitting classrooms.

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In a slew of public comments submitted to the high court, government officials warned of a future of increased legal costs, higher insurance rates, forced settlements on frivolous suits and rank-and-file public servants living in fear of lawsuits if the existing rule is changed.

“The inability to take an automatic appeal is likely to have an overarching negative impact on the system and will have real-world costs to the State — costs that are measured not just by financial considerations,” Solicitor General Ann Sherman wrote in a letter to the court.

But for people seeking recourse from local or state government agencies, automatic appeals typically mean years of additional waiting before their case can proceed. 

In one such example, Audrey West sued the state’s Department of Natural Resources after she and her father were in a 2018 snowmobile crash she contends was caused by DNR officers driving in the wrong direction. The accident threw West into a nearby river and pinned her father under the snowmobile. 

The DNR appealed and a years-long court battle ensued, culminating in a 2022 Michigan Supreme Court determination that a snowmobile is a motor vehicle and not eligible for governmental immunity. Her case was sent back to trial court — but West’s attorney, Jon Marko, said he expects the state will appeal again, meaning her trial could be delayed for several more years under the current rules. 

Marko, principal attorney at Marko Law in Detroit, said another client’s case involving a city of Detroit commercial vehicle has been through the Court of Appeals three times and still hasn’t gotten to trial yet.

“If you're hurt from the negligence of somebody else, and you're disabled, and you're in need of benefits and you're supposed to have access to justice, five years is a long time,” he said. “I've had people die waiting to get to the court.”

Immunity rules

As a general rule, local and state government institutions and employees in the United States are spared from legal liability in the event something goes wrong. The legal argument, dating back centuries, is that government officials play a unique role in society and should be by and large protected from litigation. 

There are exceptions — in Michigan, those include negligent operation of government-owned vehicles, failure to keep roads in reasonable repair, dangerous or defective conditions in public buildings and gross negligence, among other things. 

Damage claims against government entities on these grounds often end up in court. In cases where a lower court determines government immunity isn’t applicable, Michigan is one of 28 states that allows government entities to automatically appeal that decision to a higher court before it proceeds to trial, according to a 50-state survey compiled by the Attorney General’s office.

That process was codified by a 2002 Michigan Supreme Court rule backed by then-Supreme Court Justice Clifford Taylor, an appointee of former Republican Gov. John Engler. 

Governmental immunity appeals “stops the case in its tracks” for years at a time until the Court of Appeals makes a decision, said Steve Hicks, a Lansing appellate attorney and executive board member of the Michigan Association for Justice, which supports the change. 

“It’s like a two-year holding pattern,” he said. “Justice delayed is justice denied, and I don't think there's a much better example than then some of the governmental immunity cases we've had to fight through the courts to eventually get a trial for our clients.”

In December 2022, the Michigan Supreme Court in an order proposed removing the rule.

Justice Megan Cavanagh, a Democratic endorsed-justice who was elected to the high court in 2018, wrote in the order that it’s time for the court to reevaluate whether the change worked as intended. 

“The issue the Court needs to consider is whether, in practical application, these rules have struck the proper balance between protecting taxpayers from the expense of unnecessary litigation and ensuring prompt and efficient resolution of claims against governmental entities that are not barred by governmental immunity,” Cavanagh wrote. 

Sherman argued Michigan’s current policy mirrors federal practice and streamlines governmental immunity cases in a way that wasn’t present before the rule went into effect. 

In addition to the possibility of increased “sunk costs” paid for by taxpayers, she wrote that allowing certain cases to proceed to trial without court scrutiny erodes government immunity protections.

“One of the main features of governmental immunity is that it is an immunity from suit, not simply immunity from liability,” she wrote. “Thus, there is substantial harm to government agencies and actors should they be required to first convince an appellate court that their entitlement to immunity warrants review before moving to the process of briefing on the merits.” 

Even without the option currently in place, government entities would still be able to ask the Court of Appeals to consider their appeal sooner, Hicks said. They’d just have to file an application for leave to do so instead of getting an appeal automatically.

The court’s public comment process is complete and will soon hold a public hearing on the matter — court spokesperson John Nevin said a notice on the hearing date will be released in the coming weeks. 

After that, the timeline for a final decision is at the court’s discretion, Nevin said. 

Fear of frivolity

The prospect of a rule change sparked hundreds of comments, many of which came from school officials and local governments worried the rule change could open the floodgates for a slew of costly legal issues.

Peter Spadafore, executive director of the Michigan Alliance for Student Opportunity, said one of the main concerns of schools and local governments is the prospect of needing to defend against more frivolous lawsuits that end up in trial court without having a resolution on whether the district can legally be held liable. 

“It's going to be a huge drain on resources for schools,” said Spadafore, who is also a member of the Lansing City Council and previously served on the city’s school board. “If you don't have this rule in place, there is a chance to go through discovery…only to eventually get to the same outcome, but you got this long, drawn-out process in the middle.” 

He and other school groups also expressed fears that in a time where schools are having a hard enough time recruiting good candidates to fill staff shortages, the increased threat of legal liability could be a further deterrent. 

City of Detroit Deputy Corporation Counsel Charles Raimi said the proposed change would be a “disaster” that could further drain the city’s already stressed coffers. 

Raimi said new lawsuit filings against Detroit have increased from about 500 per year in 2019 to about 750 per year in 2022, and 1,693 lawsuits are currently pending. The majority of those are no-fault and third-party liability claims stemming from the city bus system, he said. 

Raimi said that because Detroit doesn’t have liability insurance, the city would likely be forced to settle more cases to avoid the risk of lengthy trials and court costs, even when they believe the governmental immunity defense is sound. 

“The practical result of the rule change would be that the city would end up paying out a lot of money that we think we have no obligation to pay,” he said. “Every dollar we pay comes out of the general fund, so that’s $1 less than we have for police, (transportation) or any of our other functions.” 

Some supporters of the proposal believe reform is necessary to better hold the government accountable. 

Among them is Steve St. Juliana, parent of Oxford High School shooting victim Hana St. Juliana. In written comments to the court, he argued that government immunity arguments enabled school officials to sidestep questions about what happened and why school administrators returned Ethan Crumbley to class after an emergency meeting with his parents about disturbing behavior. 

The meeting took place less than three hours before he shot and killed four students, including Steve St. Juliana’s daughter Hana, in November 2021.

“Governmental immunity has failed to protect the children of Oxford, and instead has left the community frustrated, distraught and divided,” St. Juliana wrote. “Our schools need to be held to the same standards as other institutions and individuals.” 

Jim Gibbons, president of the Oxford Education Association — the school district’s teachers union — and other labor leaders affiliated with Oxford and Michigan State University countered that educators, too, are traumatized by school shootings and other pressures currently facing the educational system. Adding the threat of additional legal liability to the mix would only make it worse, they said. 

“Our fear is these changes will invite further litigation against institutions and individuals who are doing nothing more than attempting to educate students in a complex and too often dangerous world,” they wrote in court comments. 

‘A big advantage’

On the other side of the coin, attorneys for litigants suing government entities say the rule needs to be changed because it unnecessarily delays legitimate cases from moving forward. 

Mark Granzotto, a Berkley attorney who has worked on government immunity cases both before and after the 2002 rule went into effect, said the rule was essentially a gift to government entities, “and I can’t say that it was a deserved gift.” 

“It's a big advantage for these governmental entities…they can buy delay, and that’s very frustrating,” he said.

Granzotto said he is encouraged that the Michigan Supreme Court proposed a rule change at all, “because that in itself seems to me a recognition that this court rule has created problems.”

“This is a special rule for these governmental entities and governmental agents that doesn't need to exist,” he said. “All these people, governmental entities who are complaining about this proposal suggesting that the sky is going to fall because they're going to lose their automatic appeal…they should have the same rights to appeal as everybody else has.”

Also supportive of getting rid of automatic appeals is Court of Appeals Judge Douglas Shapiro, who wrote to the court that the negative consequences of the 2002 rule “far outweigh their positive ones.” 

Many plaintiffs aren’t wealthy and don’t have the means to wait forever, Shapiro wrote, noting that as months or years pass, “those plaintiffs experience financial pressure to accept an insufficient settlement simply to stop their financial bleeding and to end a process that creates tension and hopelessness while their cases sit in a stack at the Court of Appeals.”

The proposed change is “not a golden ticket” for litigants, said Marko, the Detroit-based attorney who represents several litigants suing government entities. He noted that regardless of circumstances, suing the government is a long and complicated process.

“It doesn’t mean that they are automatically going to get more money. It doesn’t mean that they’re going to suddenly get to come to the front of the line. It’s just going to give them the same opportunity to have the same shot for justice as other people,” Marko said.