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Mays v. Governor of Michigan

Supreme Court of Michigan

May 22, 2019

MELISSA MAYS, MICHAEL ADAM MAYS, JACQUELINE PEMBERTON, KEITH JOHN PEMBERTON, ELNORA CARTHAN, RHONDA KELSO, and ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees,
v.
GOVERNOR OF MICHIGAN, STATE OF MICHIGAN, DEPARTMENT OF ENVIRONMENTAL QUALITY, and DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants-Appellants, and DARNELL EARLEY and JERRY AMBROSE, Defendants-Appellees, and CITY OF FLINT, Not Participating. MELISSA MAYS, MICHAEL ADAM MAYS, JACQUELINE PEMBERTON, KEITH JOHN PEMBERTON, ELNORA CARTHAN, RHONDA KELSO, and ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees,
v.
GOVERNOR OF MICHIGAN, STATE OF MICHIGAN, DEPARTMENT OF ENVIRONMENTAL QUALITY, and DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants-Appellees, and DARNELL EARLEY and JERRY AMBROSE, Defendants-Appellants, and CITY OF FLINT, Not Participating.

          Court of Claims: 16-000017-MM

          Bridget M. McCormack, Chief Justice, David F. Viviano, Chief Justice, Pro Tem Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Justices

          ORDER

         On order of the Court, the applications for leave to appeal the January 25, 2018 judgment of the Court of Appeals are considered, and they are GRANTED. The parties shall include among the issues to be briefed: (1) when the plaintiffs' cause of action accrued, see Henry v Dow Chemical Co, 501 Mich. 965 (2018), and Frank v Linkner, 500 Mich. 133 (2017); (2) whether the Court of Appeals erred in holding that the fraudulent concealment exception in MCL 600.5855 applies to the statutory notice period in MCL 600.6431(3); (3) whether the Court of Appeals erred in holding that under the Court of Claims Act, MCL 600.6401 et seq., there is a "harsh and unreasonable consequences" exception to the notice requirement of MCL 600.6431(3) when a constitutional tort is alleged, compare McCahan v Brennan, 492 Mich. 730 (2012), and Rusha v Dep't of Corrections, 307 Mich.App. 300 (2014); (4) if there is such an exception, whether it is met by the facts alleged in the plaintiffs' amended complaint; (5) whether the Court of Appeals erred in recognizing a constitutional tort for violation of bodily integrity under Const 1963, art 1, § 17, and, if not, whether the plaintiffs properly alleged such a violation, and whether a damages remedy is available for such a violation, see Smith v Dep't of Public Health, 428 Mich. 540 (1987); Jones v Powell, 462 Mich. 329 (2000); (6) for purposes of the plaintiffs' inverse condemnation claim, whether the plaintiffs have alleged direct action by defendants against the plaintiffs' property, and a special or unique injury, see Peterman v Dep't of Natural Resources, 446 Mich. 177, 190 (1994); Spiek v Dep't of Transp, 456 Mich. 331, 348 (1998); and (7) for purposes of the plaintiffs' inverse condemnation claim, the manner in which the class of similarly situated persons should be defined.

         The total time allowed for oral argument shall be 60 minutes: 30 minutes for plaintiffs, and 30 minutes for defendants, to be divided at their discretion. MCR 7.314(B)(1).

         Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. Motions for permission to file briefs amicus curiae and briefs amicus curiae regarding these cases should be filed in Mays v Governor (Docket Nos. 157335-7) only and served on the parties in both cases.

          Clement, J., not participating due to her prior involvement as chief ...


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