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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 31, 2002
 

LINDA MACK,
 

Plaintiff-Appellee,
 

v 	 No. 118468
 

THE CITY OF DETROIT,


a Michigan Municipal Corporation,
 

Defendant-Appellant.
 

BEFORE THE ENTIRE BENCH
 

YOUNG, J.
 

Plaintiff alleges in this action that she was
 

discriminated against in her employment as a Detroit police
 

officer on the basis of her sex and sexual orientation in
 

violation of the declaration of rights contained in the
 

Charter of the city of Detroit. Plaintiff further contends
 

that the charter creates a private cause of action allowing
 
recovery for violation of the rights set forth in it.
 

Assuming the charter provides no explicit private right of
 

recovery, plaintiff alternatively urges this Court to create,
 

as a cumulative remedy available under the charter, such a
 

cause of action.
 

We hold that regardless of whether the charter provides
 

a private cause of action against the city for sexual
 

orientation discrimination, such a cause of action would
 

contravene the governmental tort liability act (GTLA), MCL
 

691.1407. Accordingly, we do not accept plaintiff’s
 

invitation to recognize such a cause of action.
 

Further, because the plaintiff failed to plead a
 

recognized claim in avoidance of governmental immunity, her
 

sexual orientation discrimination claim should have been
 

dismissed. Governmental immunity is a characteristic of
 

government and thus a plaintiff must plead her case in
 

avoidance of immunity. To the extent that it holds otherwise,
 

McCummings v Hurley Medical Ctr, 433 Mich 404; 446 NW2d 114
 

(1989), is overruled.
 

Accordingly, we reverse the Court of Appeals decision,
 

reinstate the trial court’s order of summary disposition in
 

favor of the city of Detroit regarding the sexual orientation
 

claim, and remand the case to the Court of Appeals for
 

reconsideration of the sex discrimination claim in light of
 

2
 
this opinion.1
 

I. Facts and Procedural History
 

In 1974, plaintiff was hired by the city as a police
 

officer. During the course of her employment, she attained
 

the status of lieutenant and held the positions of acting
 

inspector, acting command lieutenant, acting administrative
 

lieutenant, and acting inspector of the sex crimes unit. The
 

claims before the Court arose during plaintiff’s tenure with
 

the sex crimes unit.
 

Plaintiff alleges that, while working in the sex crimes
 

unit, she was repeatedly propositioned by male supervisors for
 

sex and that she rebuffed the unwelcome advances, in part
 

because she is a lesbian. Plaintiff complained to her
 

superiors, who allegedly refused to take any action because of
 

her sexual orientation. Plaintiff also claims that she
 

endured further discrimination and harassment as a result of
 

her sexual orientation. Specifically, she complains that the
 

police department gave her an afternoon desk job answering
 

phones, prohibited her from participating in any investigative
 

work, and restricted her from taking more than two weekends
 

1The city appealed the Court of Appeals holding that the


courts could recognize a private cause of action for sexual


orientation discrimination under the city charter, but not the


court’s resolution of plaintiff’s sex discrimination claim.


For this reason, we remand the case to that Court for


reconsideration of plaintiff’s charter-based sex
 

discrimination claim in light of this opinion.
 

3
 
off a month. She has since retired from the police force.
 

Plaintiff filed suit, alleging intentional infliction of
 

emotional distress and violations of the charter of the city
 

of Detroit. Regarding the latter claims, plaintiff maintained
 

that the city violated § 2 of the charter’s declaration of
 

rights by discriminating on the basis of sex and sexual
 

orientation.2 The city moved for summary disposition,
 

asserting that plaintiff failed to state a claim upon which
 

relief can be granted, MCR 2.116(C)(8). Specifically, the
 

city argued that plaintiff’s tort claims were barred by
 

governmental immunity and that the city charter did not give
 

plaintiff a private cause of action. The trial court agreed
 

with the city and granted its motion for summary disposition.
 

Plaintiff appealed, arguing that the violation of the rights
 

guaranteed by the city charter created a private cause of
 

action.3
 

In a two-to-one decision, the Court of Appeals reversed,
 

2Section 2 provides:
 

The city has an affirmative duty to secure the


equal protection of the law for each person and to


insure equality of opportunity for all persons. No
 

person shall be denied the enjoyment of civil or


political rights or be discriminated against in the


exercise thereof because of race, color, creed,


national origin, age, handicap, sex, or sexual


orientation.
 

3Plaintiff elected not to appeal the trial court’s ruling


dismissing the intentional infliction of emotional distress


claim. Therefore, those claims are not before this Court.
 

4
 
holding that plaintiff had a private cause of action for sex
 

and sexual orientation discrimination. The majority reasoned
 

that there is an express civil right to be free from
 

employment discrimination based on one’s sex arising under the
 

Civil Rights Act, MCL 37.2101 et seq., and that the city
 

extended that protection to its charter.4 Relying on Pompey
 

v General Motors, 385 Mich 537; 189 NW2d 243 (1971), the
 

majority concluded that equal opportunity in the pursuit of
 

employment was a protected right, and because the city
 

extended that protection to include sexual orientation
 

discrimination, the courts could recognize, as a cumulative
 

remedy, a civil action for such a claim.
 

The dissent opined that it was not clear that a city had
 

authority to create a cause of action and questioned whether
 

Pompey should be extended to rights created by city charters.
 

The city appealed the Court of Appeals holding that the
 

judiciary could recognize a private cause of action for sexual
 

orientation discrimination. We granted leave to appeal. 464
 

Mich 874 (2001). 


II. Standard of Review
 

The issues presented are whether the city charter may
 

create a cause of action against the city for sexual
 

orientation discrimination in the face of state governmental
 

4243 Mich App 132; 620 NW2d 670 (2000).
 

5
 
 

immunity law and whether governmental immunity is an
 

affirmative defense or a characteristic of government so that
 

a plaintiff must plead in avoidance of it. These are
 

questions of law that the Court reviews de novo. Burt Twp v
 

Dep’t of Natural Resources, 459 Mich 659, 662-663; 593 NW2d
 

534 (1999). We also review a trial court’s decision to grant
 

or deny a motion for summary disposition de novo. Beaudrie v
 

Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). Because
 

this is a motion for summary disposition brought under MCR
 

2.116(C)(8), we test the legal sufficiency of the complaint on
 

the basis of the pleadings alone. Id.
 

III. Discussion
 

A. Governmental Immunity
 

Plaintiff contends that the charter expressly creates a
 

private cause of action for sexual orientation
 

discrimination.5 However, whether the charter attempted to
 

create a private cause of action for sexual orientation
 

discrimination is an irrelevant inquiry because we hold that
 

5

In the alternative, plaintiff urges this Court to extend


the holding in Pompey to recognize a cumulative remedy for


sexual orientation discrimination under the charter. We
 

decline to do so. Rather, we conclude that Pompey is
 

inapplicable to the case before us. Pompey contemplated a


cumulative remedy for discrimination in private employment,


whereas plaintiff in this case seeks to impose liability on a


municipality. Accordingly, unlike the Court in Pompey, we


must address whether governmental immunity precludes the Court


from recognizing a private cause of action for a
 

municipality’s tortious conduct except as expressly authorized


by the Legislature.
 

6
 
the charter could not create a cause of action against the
 

city without contravening state governmental immunity law.6
 

Const 1963, art 7, § 22 governs the authority of a city
 

to enact a charter:
 

Under general laws the electors of each city


and village shall have the power and authority to


frame, adopt and amend its charter, and to amend an


existing charter of the city or village heretofore


granted or enacted by the legislature for the


government of the city or village. Each such city


and village shall have power to adopt resolutions


and ordinances relating to its municipal concerns,


property and government, subject to the
 

constitution and law. No enumeration of powers


granted to cities and villages in this constitution


shall limit or restrict the general grant of


authority conferred by this section. [Emphasis


added.]
 

Thus, although art 7, § 22 grants broad authority to
 

municipalities, it clearly subjects their authority to
 

6Justice CAVANAGH’s assertion that whether the charter
 

creates a cause of action is a relevant inquiry because its


answer affects causes of actions against nongovernmental


entities ignores the fact that our opinion pertains only to


actions against governmental entities. Because we are only


addressing the creation of a cause of action against a
 

governmental entity, whether the charter does or does not


create such an action is ultimately irrelevant because the


GTLA does not permit such an action. Our opinion does not


address, as Justice CAVANAGH curiously alleges, whether a city


can create a cause of action against nongovernmental entities.
 

We also point out that discrimination claims have always


been characterized as a species of statutory tort. Donajkowski
 

v Alpena Power Co, 460 Mich 243, 247; 569 NW2d 574 (1999).


Consequently, Justice CAVANAGH’s suggestion that a charter


discrimination claim might not fall within the ambit of the


GTLA is without foundation.
 

7
 
constitutional and statutory limitations. 7
 

One such statutory limitation involves governmental
 

immunity. In the governmental tort liability act (GTLA), the
 

Legislature expressly stated that “[e]xcept as otherwise
 

provided in this act, a governmental agency is immune from
 

tort liability if [it] is engaged in the exercise or discharge
 

of a governmental function.” MCL 691.1407(1). Accordingly,
 

a governmental agency is immune unless the Legislature has
 

pulled back the veil of immunity and allowed suit by citizens
 

against the government. The GTLA allows suit against a
 

governmental agency in only five areas.8 However, there are
 

7This constitutional limitation on a municipality’s


authority is repeated in the Home Rule City Act, most


emphatically in MCL 117.36, which states:
 

No provisions of any city charter shall
 

conflict with or contravene the provisions of any


general law of the state.
 

See also MCL 117.4j(3), which governs permissible charter


provisions:
 

[Each city may in its charter provide] [f]or
 

the exercise of all municipal powers in the
 

management and control of municipal property and in


the administration of the municipal government,


whether such powers be expressly enumerated or not;


for any act to advance the interests of the city,


the good government and prosperity of the
 

municipality and its inhabitants and through its


regularly constituted authority to pass all laws


and ordinances relating to its municipal concerns


subject to the constitution and general laws of
 

this state. [Emphasis added.]
 

8The five statutory exceptions to governmental immunity


are the “highway exception,” MCL 691.1402, the “motor vehicle
 

8
 
other areas outside the GTLA where the Legislature has allowed
 

specific actions against the government to stand, such as the
 

Civil Rights Act.9 Further, municipalities may be liable
 

pursuant to 42 USC 1983. Monell v New York City DSS, 436 US
 

658; 98 S Ct 2018; 56 L Ed 2d 611 (1978).
 

However, none of the exceptions where a suit is allowed
 

against the government can be read to allow suit for sexual
 

orientation discrimination. Likewise, no statute grants
 

governmental agencies the authority to create an immunity
 

exception for sexual orientation discrimination or waive
 

immunity in the area of civil rights. Notably, the CRA, which
 

makes a municipality liable for specific civil rights
 

violations, neither provides a cause of action for sexual
 

orientation discrimination nor grants municipalities the
 

authority to create one. MCL 37.2101 et seq.10 Moreover, the
 

exception,” MCL 691.1405, the “public building exception,” MCL


691.1406, the “proprietary function exception,” MCL 691.1413,


and the “governmental hospital exception,” MCL 691.1407(4).
 

9 MCL 37.2103(g) and 37.2202(a); see Manning v Hazel
 

Park, 202 Mich App 685, 699; 509 NW2d 874 (1993) (governmental


immunity is not a defense to a claim brought under the Civil


Rights Act).
 

10Indeed, as this Court has consistently held since its


seminal case, Ross, exceptions to governmental immunity are


narrowly construed. See, e.g., Haliw v Sterling Heights, 464


Mich 297, 303; 627 NW2d 581 (2001); Nawrocki v Macomb Co Rd
 

Comm, 463 Mich 143, 149; 615 NW2d 702 (2000); Ross v Consumers
 

Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641


(1984). Consequently, because the CRA does not recognize


sexual orientation discrimination, that act cannot be
 

construed as providing a basis for governmental agencies to
 

9
 
 

CRA limits complaints to causes of action for violations of
 

the act itself:
 

A person alleging a violation of this act may


bring a civil action for appropriate injunctive


relief or damages, or both. [MCL 37.2801(1)
 

(emphasis added).][11]
 

In sum, without some express legislative authorization,
 

the city cannot create a cause of action against itself in
 

contravention of the broad scope of governmental immunity
 

established by the GTLA. No such legislative act has
 

recognized sexual orientation discrimination claims.
 

Accordingly, this Court declines to circumvent the limitations
 

placed on a municipality by the Legislature and recognize a
 

cause of action against the city for sexual orientation
 

discrimination.12
 

create such a cause of action.
 

11We make no determination regarding the validity of the


city’s attempt in its charter to provide a cause of action for


sex discrimination, a protection similarly provided by the


CRA. That claim is not before us. However, in keeping with


this opinion, we note that, at least in regard to governmental


immunity, a city may not alter in any respect its liability


excepted from governmental immunity by the Legislature without


express authority to do so.
 

12To be certain, we emphasize that our opinion does not
 

address whether a city can create rights, protect against


discrimination, or create a cause of action against a


nongovernmental entity. Preemption of civil rights, by either


the constitution or the Civil Rights Act, is not addressed by


our opinion. Rather, our analysis concerns only governmental


immunity and the city’s lack of authority to create a cause of
 

action against a governmental entity in light of state


governmental immunity law. Accordingly, should there be any


question concerning the scope of our holding, we hold that any
 

10
 
B. A City Cannot Waive Governmental Immunity
 

Because the city abandoned its assertion of governmental
 

immunity to this Court and the law regarding the nature of
 

governmental immunity has been misguided for some time, we
 

will address the viability of plaintiff’s complaint here as it
 

pertains to governmental immunity.13
 

1. The Nature of Governmental Immunity
 

A governmental agency is immune from tort liability if
 

the governmental agency is engaged in the exercise or
 

discharge of a governmental function. MCL 691.1407(1). This
 

Court has taken steps to clarify the origin and history of
 

governmental immunity, most recently in Pohutski v Allen Park,
 

465 Mich 675; 641 NW2d 219 (2002). See also Ross v Consumers
 

Powers (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). The
 

Court does not need to reiterate that history today, but we
 

attempt by the city to create a cause of action against itself


in its charter for sexual orientation discrimination is
 

preempted by the governmental tort liability act. We have not
 

addressed whether the CRA preempts a city from creating


additional civil rights or protecting them through means other


than the creation of a private cause of action, nor have we


addressed whether a city can create a cause of action against


a nongovernmental defendant. Those questions are not before


us.
 

13We note that the city raised governmental immunity as


a defense in the trial court, but failed to argue this issue


in the Court of Appeals or in this Court. In light of our


holding that governmental immunity is not an affirmative


defense, but a characteristic of government, failure to assert


its immunity on appeal does not preclude the Court from


considering it now.
 

11
 
 

take this opportunity to clarify that governmental immunity is
 

a characteristic of government. Canon v Thumudo, 430 Mich
 

326; 422 NW2d 688 (1988); Hyde v Univ of Michigan Regents, 426
 

Mich 223; 393 NW2d 847 (1986); McCann v Michigan, 398 Mich 65;
 

247 NW2d 521 (1976); Markis v Grosse Pointe Park, 180 Mich App
 

545; 448 NW2d 352 (1989); Ross, supra at 621, n 34; Galli v
 

Kirkeby, 398 Mich 527, 532, 540-541; 248 NW2d 149 (1976). As
 

such, plaintiff must plead her case in avoidance of immunity.
 

See Hanson v Mecosta Co Rd Comm’rs, 465 Mich 492, 499; 638
 

NW2d 396 (2002); Haliw v Sterling Heights, 464 Mich 297, 304;
 

627 NW2d 581 (2001); Nawrocki v Macomb Co Rd Comm, 463 Mich
 

143, 172, n 29; 615 NW2d 702 (2000); Ross, supra at 621, n 34.
 

To the extent that it holds otherwise, McCummings v Hurley
 

Medical Ctr, 433 Mich 404; 446 NW2d 114 (1989), is overruled.
 

Until 1989, it was well established in Michigan that
 

governmental immunity was a characteristic of government.
 

See, e.g., Hyde14 and Canon.15 In McCann, Justice RYAN stated
 

that a plaintiff must plead facts in avoidance of immunity,
 

14“Unlike other claims of immunity, sovereign and
 

governmental immunity are not affirmative defenses, but


characteristics of government which prevent imposition of tort


liability.” Id. at 261, n 35 (citations omitted).
 

15“Unlike a claim of individual immunity, sovereign and


governmental immunity are not affirmative defenses, but


characteristics of government which prevent imposition of tort


liability. A plaintiff therefore bears the burden of pleading


facts in the complaint which show that the action is not


barred by the governmental immunity act.” Id. at 344, n 10.
 

12
 
reasoning:
 

At first impression, it may appear appropriate
 

to characterize governmental immunity as an
 

affirmative defense. However, a careful analysis


of the doctrine as construed by this Court
 

indicates that, to plead a cause of action against


the state or its agencies, the plaintiff must plead


and prove facts in avoidance of immunity. In
 

McNair v State Highway Dep’t, 305 Mich 181, 187; 9


NW2d 52 (1943), for instance, we held that the


state’s failure to plead sovereign immunity will


not constitute a waiver because “failure to plead


the defense of sovereign immunity cannot create a


cause of action where none existed before.” In
 

Penix v City of St Johns, 354 Mich 259; 92 NW2d 332


(1958), we held that a complaint which contained no


averment that the defendant was engaging in a


proprietary function, and which in fact alleged


activity to which governmental immunity applied,


stated no cause of action against the municipality.


Thus, although we have on occasion referred to
 

governmental immunity as a defense, see [McNair];


Martinson v Alpena, 328 Mich 595, 599; 44 NW2d 148


(1950), our past treatment of the doctrine
 

indicates that its inapplicability is an element of


a plaintiff’s case against the state. [McCann,
 

supra at 77, n 1 (opinion of RYAN, J.).]
 

This reasoning was reiterated nearly ten years later in Ross:
 

In [Galli], four members of this Court held


that plaintiffs must plead facts in their complaint


in avoidance of immunity, i.e., they must allege


facts which would justify a finding that the


alleged tort does not fall within the concept of


sovereign or governmental immunity. This may be


accomplished by stating a claim which fits within


one of the statutory exceptions or pleading facts


which demonstrate that the tort occurred during the


exercise or discharge of a non-governmental or


proprietary function. See [McCann, supra at 77].


Sovereign and governmental immunity are not
 

affirmative defenses, but characteristics of
 

government which prevent imposition of tort
 

liability upon the governmental agency. Galli,
 

supra, p 541, n 5; McCann, supra, p 77, n 1. [Ross,
 

supra at 621, n 34.]
 

13
 
However, in McCummings, this Court departed from years of
 

precedent and concluded that governmental immunity is an
 

affirmative defense rather than a characteristic of
 

government. The McCummings Court reasoned:
 

The pronouncements in Hyde and Canon clearly


do not square with the statement in Ross that
 

“[s]overeign and governmental immunity from tort


liability exist only when governmental agencies are


‘engaged in the exercise or discharge of a
 

governmental function.’” If it takes a legislative


decree for immunity to exist, and then only under


circumstances defined by the Legislature, how can


it be said that sovereign or governmental immunity


is a “characteristic of government?”
 

We are persuaded that the reasoning in Ross is
 

correct, i.e., that immunity from tort liability


exists only in cases where the governmental agency


was engaged in the exercise or discharge of a


governmental function. The question whether a


governmental agency was engaged in a governmental


function when performing the act complained of is a


question best known to the agency and best asserted


by it. It naturally follows that plaintiffs need


not plead facts in avoidance of immunity, but that


it is incumbent on the agency to assert its


immunity as an affirmative defense. The fact that
 

the source of the immunity is a legislative act


makes the contention of immunity no less a matter


for assertion as an affirmative defense.
 

We are also persuaded that there is no sound


basis for requiring individuals, but not agencies,


to assert governmental immunity as an affirmative


defense. The source of the immunity from tort


liability is the same. MCL 691.1407. Nor do we
 

perceive any basis for treating the alleged


immunity of a governmental agency any differently,


for pleading purposes, from any other type of


immunity granted by law. Immunity must be
 

[pleaded] as an affirmative defense. [Id. at 410­

14
 
411.][16]
 

See also Scheurman v Dep’t of Trans, 434 Mich 619; 465 NW2d 66
 

(1990); Tyrc v Michigan Veterans’ Fund, 451 Mich 129; 545 NW2d
 

642 (1996).
 

We conclude that McCummings was wrongly decided and,
 

returning to our prior precedent, overrule McCummings’
 

conclusion that governmental immunity is an affirmative
 

defense. MCL 691.1407(1) states, “[e]xcept as otherwise
 

provided in this act, a governmental agency is immune from
 

tort liability if [it] is engaged in the exercise or discharge
 

of a governmental function.” Thus, by its terms, the GTLA
 

provides that unless one of the five statutory exceptions
 

applies, a governmental agency is protected by immunity. The
 

presumption is, therefore, that a governmental agency is
 

immune and can only be subject to suit if a plaintiff’s case
 

falls within a statutory exception. As such, it is the
 

responsibility of the party seeking to impose liability on a
 

governmental agency to demonstrate that its case falls within
 

one of the exceptions.
 

In addition to the textual support for this conclusion in
 

the language of the GTLA, we note that the McCummings Court
 

relied on a substantively flawed analysis in reaching the
 

contrary opinion. First, the McCummings Court’s reliance on
 

16The McCummings Court also amended MCR 2.111(F)(3) to
 

reflect its holding. Id. at 412.
 

15
 
 

Ross to support its conclusion that governmental immunity is
 

an affirmative defense is perplexing, given that Ross itself
 

described governmental immunity as a characteristic of
 

government. Id. at 621, n 34. Second, in support of its
 

analysis the McCummings Court asked, “If it takes a
 

legislative decree for immunity to exist, and then only under
 

circumstances defined by the Legislature, how can it be said
 

that sovereign or governmental immunity is a ‘characteristic
 

of government?’” Id. at 410-411. 


In response, we merely observe that, historically,
 

Michigan recognized at common law governmental immunity for
 

all levels of government until this Court chose to abrogate
 

governmental immunity for municipalities in 1961. Williams v
 

Detroit, 364 Mich 231; 111 NW2d 1 (1961). In response to
 

Williams and the possibility that this Court would further
 

erode the remaining common-law governmental immunity for
 

counties, townships, and villages, the Legislature enacted the
 

Governmental Immunity Act of 1964 (GIA), thereby reinstituting
 

governmental immunity protection for municipalities and
 

preserving sovereign immunity for the state. In effect, the
 

GIA restored the Williams status quo ante. Pohutski, supra at
 

682. Thus, contrary to McCummings, it did not take a
 

legislative decree to create governmental immunity, but a
 

legislative act to preserve the doctrine that this Court had
 

16
 
historically recognized as a characteristic of government.
 

The McCummings suggestion that governmental immunity could not
 

be a characteristic of government because it was created by
 

legislation misapprehends the history of the Court’s actions
 

and the legislative response. We believe that once the
 

sequence of the judicial and legislative events is grasped,
 

the analytical flaw at the root of McCummings is apparent.17
 

For these reasons,18 we overrule McCummings19 to this
 

extent and return to the longstanding principle extant before
 

17More important, notwithstanding that governmental


immunity is now established by a legislative act rather than


the common law, we hold that the Legislature is within its


inherent constitutional authority to structure governmental


immunity solely as it deems appropriate. Where the
 

Legislature has afforded municipalities the protection of


governmental immunity and done so in a comprehensive fashion


as it has done in the GTLA, the governmental immunity as set


forth in the GTLA is a characteristic of government. 


18We note that requiring the plaintiff to bear the burden


of pleading in avoidance of governmental immunity is also


consistent with a central purpose of governmental immunity,


that is, to prevent a drain on the state’s financial


resources, by avoiding even the expense of having to contest


on the merits any claim barred by governmental immunity.
 

19In overruling McCummings, the Court is mindful of the


doctrine of stare decisis. Stare decisis, however, is not


meant to be mechanically applied to prevent the Court from


overruling earlier erroneous decisions. Robinson v Detroit,


462 Mich 439, 463; 613 NW2d 307 (2000). Rather, stare decisis


is a “principle of policy” not “an inexorable command,” and


the Court is not constrained to follow precedent when


governing decisions are badly reasoned. Id. at 464. We
 

conclude that it is appropriate to overrule McCummings despite


stare decisis because that case was both badly reasoned and


inconsistent with a more intrinsically sound prior doctrine


and the actual text of the GTLA.
 

17
 
McCummings that, governmental immunity being a characteristic
 

of government, a party suing a unit of government must plead
 

in avoidance of governmental immunity.20


 2. Plaintiff’s Complaint
 

A plaintiff pleads in avoidance of governmental immunity
 

by stating a claim that fits within a statutory exception or
 

by pleading facts that demonstrate that the alleged tort
 

occurred during the exercise or discharge of a nongovernmental
 

or proprietary function. McCann, supra at 77. Plaintiff did
 

neither in this case.
 

Governmental immunity protects the conduct of
 

governmental agencies, which include two types of actors: the
 

state and political subdivisions. MCL 691.1401(d). The
 

Detroit Police Department, as a political subdivision, MCL
 

691.1401(b), is a “governmental agency” for purposes of
 

20We apply this holding to plaintiff’s sexual orientation


claim, but remand to the Court of Appeals for reconsideration


of plaintiff’s other claims, as indicated previously. See n
 

1. With the exception of her sexual orientation
 

discrimination claim against the city, which is disposed of in


this opinion, plaintiff shall be allowed to amend her
 

complaint to attempt to plead in avoidance of governmental


immunity in regard to her other claims.
 

As to all other cases pending that involve governmental


immunity, plaintiffs shall be allowed to amend their
 

complaints in order to plead in avoidance of governmental


immunity. If a case is pending on appeal and governmental


immunity is a controlling issue, the Court of Appeals may


remand to allow amendment. As MCR 2.111(F)(3) encompasses


other species of “immunity granted by law,” but does not


explicitly refer to governmental immunity, it is not necessary


to amend the court rule because of our holding.
 

18
 
governmental immunity. MCL 691.1401(d). As such, absent the
 

applicability of a statutory exception, it is immune from tort
 

liability if the tort claims arise from the department’s
 

exercise or discharge of a governmental function. MCL
 

691.1407(1). “‘Governmental function’ is an activity that is
 

expressly or impliedly mandated or authorized by constitution,
 

statute, local charter or ordinance, or other law.” MCL
 

691.1401(f). It is well established in Michigan that the
 

management, operation, and control of a police department is
 

a governmental function. Moore v Detroit, 128 Mich App 491,
 

496-497; 340 NW2d 640 (1983); Graves v Wayne Co, 124 Mich App
 

36, 40-41; 333 NW2d 740 (1983). 


Plaintiff’s claims regarding the police department all
 

involve decisions that are part and parcel of the department’s
 

discharge of governmental functions. The decisions at issue
 

in this case are job reassignment, distribution of vacation
 

time, and determining the extent to which department officers
 

are involved in investigations. These are ordinary day-to-day
 

decisions that the police department makes in the course of
 

discharging its governmental function. As such, the police
 

department’s conduct is within the scope of § 7. Thus,
 

plaintiff’s claim is barred unless it falls within one of the
 

statutory exceptions. As discussed above, plaintiff’s sexual
 

orientation discrimination claim falls under no immunity
 

exception. 


19
 
Further, plaintiff’s complaint makes no mention of
 

governmental immunity with respect to any of her claims. In
 

fact, it was not until the city moved for summary disposition
 

that plaintiff claimed that her action was not barred by
 

governmental immunity. Even then, however, plaintiff’s
 

responsive pleading went only to her intentional infliction of
 

emotional distress claim, which she abandoned by failing to
 

raise it in the Court of Appeals. 


Because plaintiff failed to state a claim that fits
 

within a statutory exception or plead facts that demonstrate
 

that the alleged tort occurred during the exercise or
 

discharge of a nongovernmental or proprietary function, we
 

conclude that plaintiff did not plead and could not plead in
 

avoidance of governmental immunity and that her sexual
 

orientation discrimination claim should have been dismissed on
 

the city’s motion for summary disposition.
 

IV. The Dissents
 

Justices Weaver and Cavanagh criticize our opinion
 

primarily on the ground that our decision is allegedly reached
 

without the benefit of briefing or argument. This argument
 

camouflages their reluctance to address the core legal
 

questions at hand.
 

First, concerning McCummings, additional briefing would
 

not assist this Court in addressing this question of law. All
 

the relevant argument is embodied in the years of case law on
 

20
 
the nature of governmental immunity. Of that case law,
 

McCummings is an aberration; its doctrine stands alone in our
 

jurisprudential history in holding that governmental immunity
 

is an affirmative defense and not a characteristic of
 

government. In this case, we addressed which was
 

aberrational: McCummings or the remaining eighty years of case
 

law. We have concluded that McCummings was the aberration. 


Regarding the dissenters’ assertion that the issue of the
 

charter being preempted by the GTLA was not briefed or raised
 

by the parties, we note that the issue was squarely in front
 

of the parties. The central question in this case was whether
 

the charter’s purported creation of a cause of action for
 

sexual orientation discrimination is preempted by state law.
 

The governmental tort liability act is a state law. If the
 

charter creates a cause of action for sexual orientation
 

discrimination, then it conflicts with the state law of
 

governmental immunity. Questioning by several members of
 

this Court at oral argument specifically raised the
 

governmental immunity issue.21 We absolutely oppose the
 

21
 

Justice TAYLOR: . . . I’ve got a question which


is on a little different track. Pompey and Holmes
 

in their most elementary reading give private


causes of action for civil rights problems. They,


however, give that cause of action to one citizen


against another. One of the old really venerable


principles of law is of course that the government


can only be sued when it allows itself to be sued.


Why is it not the case that Pompey and Holmes could
 

21
 
dissenters’ apparent position that although a controlling
 

legal issue is squarely before this Court, in this case
 

preemption by state law, the parties’ failure or refusal to
 

offer correct solutions to the issue limits this Court’s
 

ability to probe for and provide the correct solution. Such
 

an approach would seriously curtail the ability of this Court
 

to function effectively and, interestingly, given the
 

dissenters’ position, actually make oral argument a moot
 

practice.
 

To be certain, we emphasize that, contrary to Justice
 

be left entirely intact and a court hold that


whatever they said, they never abrogated the
 

immunity that a government has that it can only


eliminate expressly, that is the ability to not be


sued. Said better, why wouldn’t it be a sensible


thing for a court to hold that whatever Pompey and
 

Holmes said, they never gave authority to sue a


city or any other kind of government, and there is


nowhere in the statutes or the constitution where
 

governmental immunity in this regard has been


abrogated. And we always have to read our law, I


think, our case law is that we always tilt in the


direction of immunity.
 

* * *
 

Justice YOUNG: Why do you read this provision


[CRA] as abrogating governmental immunity? . . . .
 

* * *
 

Justice MARKMAN: But Justice TA Y LOR ’s
 

question as I understand is a more generic question


. . . It’s whether the municipality can create any


cause of action that will burden the sovereign to a


greater extent.
 

22
 
CAVANAGH’s allegation, we have not disregarded “the
 

foundational principles of our adversarial system of
 

adjudication.” Post at 1. Rather, addressing a controlling
 

legal issue despite the failure of the parties to properly
 

frame the issue is a well understood judicial principle. See
 

Legal Services Corp v Velazquez, 531 US 533, 549, 558; 121 S
 

Ct 1043; 149 L Ed 2d 63 (2001) (majority and dissent both
 

stating that whether to address an issue not briefed or
 

contested by the parties is left to discretion of the Court);
 

Seattle v McCready, 123 Wash 2d 260, 269; 868 P2d 134 (1994)
 

(indicating that the court “is not constrained by the issues
 

as framed by the parties if the parties ignore a
 

constitutional mandate, a statutory commandment, or an
 

established precedent”). In fact, all three dissenters
 

recently signed or concurred in an opinion where this Court
 

decided an issue not raised or briefed by any party.
 

Federated Publications, Inc v Lansing, 467 Mich ___; ___ NW2d
 

___ (2002) (resolving a standard of review issue).
 

Accordingly, we find no merit in the dissents’ criticism of
 

our opinion on the ground that the parties did not brief the
 

issue themselves and interpret their dissenting statements as
 

an indication of their reluctance to address the core legal
 

questions before us.
 

In his dissent, Justice CAVANAGH has fired his standard
 

shot: this Court overrules cases capriciously. Now he has
 

23
 
added a fusillade, suggesting that the majority “tees up”
 

issues it wants the parties to brief, and somewhat
 

inconsistently, that the majority decides matters without
 

briefing by the parties. While we recognize that following
 

the law as enacted by our Legislature is sometimes at odds
 

with our dissenting colleague’s personal policy preferences,
 

our constitutional duty demands that we follow the rule of
 

law. While Justice CAVANAGH chooses to characterize his policy
 

frustrations as the majority’s judicial disobedience, neither
 

the law, this Court’s history, nor Justice CAVANAGH’s own
 

judicial history supports his characterization.
 

On the so-called briefing issue, we think Justice CAVANAGH
 

wants it both ways. In this case, where the controlling legal
 

issue was discovered after the parties had submitted their
 

briefs, Justice CAVANAGH complains. In other cases, when the
 

Court has believed there might be a controlling issue on which
 

it wanted the benefit of the parties’ briefing, Justice
 

CAVANAGH also complains. See, e.g., Robinson v Detroit, 462
 

Mich 439; 613 NW2d 307 (2000) (a case cited in his footnote
 

9), wherein Justice CAVANAGH dissented, criticizing the
 

majority for flagging in its grant order a legal issue the
 

Court specifically wanted briefed by the parties. 461 Mich
 

1201.22
 

22For example, Justice CAVANAGH cites People v Hardiman,


465 Mich 902; 638 NW2d 744 (2001), as an example of this Court
 

24
 
Apart from Justice CAVANAGH’s desire to have it both ways
 

on the issue of party “briefing,” no one can seriously
 

question the right of this Court to set forth the law as
 

clearly as it can, irrespective whether the parties assist the
 

Court in fulfilling its constitutional function. The
 

jurisprudence of Michigan cannot be, and is not, dependent
 

upon whether individual parties accurately identify and
 

elucidate controlling legal questions.


 Concerning Justice CAVANAGH’s habitual assertion that
 

this Court casually disregards stare decisis, we note that
 

Justice CAVANAGH himself is no stranger to overruling
 

precedent. See, e.g., DiFranco v Pickard, 427 Mich 32; 398
 

NW2d 896 (1986), overruling Cassidy v McGovern, 415 Mich 483;
 

asking the parties if a precedent should be overruled, People
 

v Atley, 392 Mich 298; 220 NW2d 465 (1974). We note that
 

Justice CAVANAGH agreed that Atley should be overruled in his
 

partial concurrence in Hardiman. 465 Mich 417, 432; 646 NW2d


744 (2002).
 

Similarly, Justice CAVANAGH criticizes this Court for
 

asking the parties to brief whether the federal subjective


entrapment test should be adopted in Michigan in our grant


order in People v Johnson, ___ Mich ____; ___ NW2d ___ (2002).
 

465 Mich 911 (2001). However, when Justice CAVANAGH was in the
 

majority, the Court asked the parties to do the very same


thing in People v Jamieson, 436 Mich 61; 461 NW2d 884 (1990).
 

433 Mich 1226 (1989).
 

Finally, we note that in regard to the majority deciding


issues not briefed by the parties, Justice CAVANAGH recently


authored the opinion in Stanton v Battle Creek, 466 Mich ___;


___ NW2d ___ (2002), in which this Court decided an issue that


was never briefed by the parties. That is, applying the


common meaning of “motor vehicle” to determine whether the


term encompasses a forklift.
 

25
 
330 NW2d 22 (1982); AFSCME v Highland Park Bd of Ed, 457 Mich
 

74; 577 NW2d 79 (1998), overruling Ensley v Associated
 

Terminals, Inc, 304 Mich 522; 8 NW2d 161 (1943); Haske v
 

Transport Leasing, Inc, 455 Mich 628, 652; 566 NW2d 896
 

(1997), overruling Rea v Regency Olds/Mazda/Volvo, 450 Mich
 

1201; 536 NW2d 542 (1995); W T Andrew Co v Mid-State Surety,
 

450 Mich 655; 545 NW2d 351 (1996), overruling Weinberg v Univ
 

of Michigan Regents, 97 Mich 246; 56 NW 605 (1893); People v
 

Kevorkian, 447 Mich 436; 527 NW2d 714 (1994), overruling
 

People v Roberts, 211 Mich 187; 178 NW 690 (1920); In re
 

Hatcher, 443 Mich 426; 505 NW2d 834 (1993), overruling Fritts
 

v Krugh, 354 Mich 97; 92 NW2d 604 (1958); Mead v Batchlor, 435
 

Mich 480; 460 NW2d 493 (1990), overruling (to the extent
 

inconsistent) Sword v Sword, 399 Mich 367; 249 NW2d 88 (1976);
 

Albro v Allen, 434 Mich 271; 454 NW2d 85 (1990), overruling
 

unidentified prior Supreme Court cases; Schwartz v Flint, 426
 

Mich 295; 395 NW2d 678 (1986), overruling Ed Zaagman, Inc v
 

Kentwood, 406 Mich 137; 277 NW2d 475 (1979); McMillan v State
 

Hwy Comm, 426 Mich 46; 393 NW2d 332 (1986), overruling Cramer
 

v Detroit Edison Co, 296 Mich 662; 296 NW 831 (1941), and
 

Dawson v Postal Telegraph-Cable Co, 265 Mich 139; 251 NW 352
 

(1933).
 

More important, we emphasize that this stout defense of
 

stare decisis by Justices CAVANAGH and KELLY is their standard
 

26
 
argument when they are unhappy with the result of an opinion.
 

See Sington v Chrysler Corp, 467 Mich ___; ___ NW2d ___ (2002)
 

(KELLY, J., dissenting). Their charge is that the new
 

composition of this Court is the explanatory variable for a
 

deteriorating respect for precedent. Sington provides the
 

latest example of their argument, but it also demonstrates how
 

statistically insignificant are the occasions when this Court
 

(as opposed to its pre-1999 predecessor) has overturned its
 

prior cases.
 

In Sington, Justice KELLY states that, in the five years
 

from 1993 to 1997, twelve cases were overturned by this Court
 

whereas in the four and a half years from 1998 to July, 2002,
 

twenty-two cases were overturned. During the 1993 to 1997
 

period, the Court overruled precedent at a rate of about onetwelfth of one percent (12 of 13,682 cases disposed of), while
 

during the 1998 to 2002 period, the Court overruled precedent
 

at about a rate of one-fifth of one percent (22 of 11,190).
 

The contrast is one-twelfth of one percent in the Court’s
 

“good ole days” versus one-fifth of one percent in the new
 

world of the current Court, even counting against the current
 

Court the six cases decided in 1998 before this majority came
 

into existence. Viewed in this context, no neutral
 

commentator would conclude that the majority has a complete
 

disregard for stare decisis, but that the dissenters are
 

strict adherents. In other words, Justice KELLY and Justice
 

27
 
CAVANAGH’s records do not reflect a previous hard line
 

adherence to stare decisis and their dissatisfaction is not
 

with our alleged lack of adherence to stare decisis, but in
 

their inability to reach the policy choice they prefer given
 

the majority’s commitment to follow the laws enacted by our
 

Legislature.
 

I think it is fair to say that the cases Justice CAVANAGH
 

cites in footnote 9 more probably reveal his desire that this
 

Court never address a controlling legal issue. Yet, we
 

welcome Justice CAVANAGH’s newly announced repudiation of
 

“judicial activism in any form.” We question whether his new
 

judicial philosophy includes the obligation to respect and
 

follow the law, even where it is inconvenient to one’s policy
 

preferences or even when the parties fail to bring the
 

controlling law to the Court’s attention.
 

V. Conclusion
 

We hold that regardless whether the charter attempted to
 

create a private cause of action against the city for sexual
 

orientation discrimination, it could not do so without
 

contravening governmental immunity law. Accordingly, this
 

Court is without authority to act on plaintiff’s request to
 

recognize such a cause of action.
 

In addition, we hold that, governmental immunity being a
 

characteristic of government, a party suing a unit of
 

government must plead in avoidance of governmental immunity.
 

28
 
We overrule McCummings to the extent it holds otherwise. 


Plaintiff did not plead in avoidance of governmental
 

immunity in her complaint. Accordingly, the Court of Appeals
 

holding is reversed, and the trial court’s order for summary
 

disposition in favor of defendant is reinstated with regard to
 

the sexual orientation discrimination claim. Because the city
 

did not appeal the Court of Appeals resolution of the sex
 

discrimination claim, we remand that issue to the Court of
 

Appeals for reconsideration in light of this opinion.
 

CORRIGAN, C.J., and TAYLOR and MARKMAN, JJ., concurred with
 

YOUNG, J.
 

29
 
 

___________________________________ 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

LINDA MACK,
 

Plaintiff-Appellee,
 

v No. 118468
 

THE CITY OF DETROIT,


a Michigan Municipal Corporation,
 

Defendant-Appellant.
 

CAVANAGH, J. (dissenting).
 

I respectfully disagree with the majority’s conclusion
 

that a cause of action created by defendant’s city charter and
 

brought against the city of Detroit would contravene the
 

governmental tort liability act (GTLA), MCL 691.1407. I
 

further object to the majority’s assertion that plaintiff must
 

plead in avoidance of governmental immunity.
 

In reaching its holding, the majority disregards the
 

foundational principles of our adversarial system of
 

adjudication. As protectors of justice, we refrain from
 

deciding issues without giving each party a full and fair
 
 

opportunity to be heard. But not for this concern, the
 

judicially created doctrine of standing would be discarded, as
 

it ensures “concrete adverseness which sharpens the
 

presentation of issues upon which the court so largely depends
 

for illumination . . . .” Baker v Carr, 369 US 186, 204; 82
 

S Ct 691; 7 L Ed 2d 663 (1962) (Brennan, J.). However, the
 

majority has disregarded such considerations, misconstruing
 

the proper scope of its authority, by making dispositive an
 

issue never argued or briefed by the parties. Neither of the
 

parties has had the benefit of sharing with this Court their
 

thoughts on the effect of the tort immunity act on this case,
 

though the implications of the majority’s holding are vast.
 

Never before have I witnessed such overreaching conduct from
 

members of this Court.
 

I. THE GTLA DOES NOT NULLIFY PRIVATE ACTIONS CREATED BY A CITY 


In the majority’s haste to apply the GTLA, it fails to
 

adequately consider several foundational issues. First, the
 

majority neglects to properly address a dispositive
 

preliminary issue: is an action alleging a violation of a city
 

charter a tort? Neither plaintiff nor defendant considered
 

this claim a tort. Further, because a charter is a city’s
 

“constitution,” Bivens v Grand Rapids, 443 Mich 391, 401; 505
 

NW2d 239 (1993), this action does not resemble our typical
 

understanding of a tort. It is far from clear that the
 

2
 
Legislature intended that the GTLA preclude such actions, and
 

the majority’s reference to Donajkowski v Alpena Power Co, 460
 

Mich 243, 247; 569 NW2d 574 (1999), which proclaimed in the
 

most cursory fashion that a statutory violation sounds in
 

tort, does not aid in this determination. At the very least,
 

briefing and argument on this issue could have clarified the
 

nature of the debate. 


Moreover, the majority’s claim that the scope of the GTLA
 

nullifies any attempt by a city to create a cause of action
 

that could be brought against a governmental agency ignores
 

the fact that the tort immunity act does not bar gross
 

negligence claims against government officers, MCL
 

691.1407(2), nor does it prohibit actions brought against
 

government entities for injuries arising out of actions not
 

related to the discharge of a “government function.” MCL
 

691.1407(1). Thus, even if one concludes that plaintiff’s
 

claim against the city properly sounds in negligence, a cause
 

of action created by the Detroit charter could be brought
 

under the theory of gross negligence against government
 

officers or against the city when not engaged in a government
 

function. Therefore, the majority errs in concluding that any
 

action created by a city’s charter that could be brought
 

against a governmental entity would violate the GTLA.
 

3
 
 

II. THE CHARTER CREATES A CAUSE OF ACTION
 

Having demonstrated why the issue is not “irrelevant,” in
 

spite of the majority’s assertions otherwise, I believe it is
 

necessary to clarify that the plain language of the charter
 

creates a cause of action.1
 

The Detroit citizenry clearly has the right to be free
 

from discrimination on the basis of, inter alia, sexual
 

orientation:
 

The city has an affirmative duty to secure the


equal protection of the law for each person and to


insure equality of opportunity for all persons. No
 

person shall be denied the enjoyment of civil or


political rights or be discriminated against in the


exercise thereof because of race, color, creed,


national origin, age, handicap, sex, or sexual


orientation. [Charter, Declaration of Rights,


§ 2.]
 

Defendant city of Detroit, however, claims the plain language
 

of the charter prescribes an exclusive administrative remedy
 

for this broadly pronounced right, prohibiting enforcement by
 

its citizenry:
 

The city may enforce this declaration of


rights and other rights retained by the people.


[Id. at § 8.]
 

Defendant’s cursory assertion that this provision prohibits
 

individual enforcement of the rights granted in the charter
 

1 See Detroit v Walker, 445 Mich 682, 691; 520 NW2d 135


(1994) (“The prevailing rules regarding statutory construction


are well established and extend to the construction of home
 

rule charters.”) 


4
 
results from an erroneous interpretation of the plain language
 

of the text.2 Certainly this provision grants the city the
 

authority to enforce the rights proclaimed in the charter.
 

However, this grant of authority is not exclusive. The
 

drafters gave the city the power to enforce the declaration of
 

rights and other rights retained by the people. If one
 

accepts defendant’s claim that this text gives the city the
 

exclusive authority to enforce the declaration of rights, the
 

drafters also would have granted to the city the exclusive
 

authority to enforce “other rights retained by the people.”
 

In other words, with the adoption of the charter as
 

constructed by defendant, the people of Detroit purportedly
 

stripped themselves of their ability to bring civil actions to
 

enforce any “other right.” Even if the city had the authority
 

to enforce these rights, the text simply does not support such
 

an unprecedented grant of authority. 


Further, the drafters used “may,” not “shall,” in this
 

provision. “May” suggests that one “is permitted to” or has
 

discretion. Black’s Law Dictionary (7th ed). If the drafters
 

had intended to grant the city the exclusive authority to
 

enforce the charter, they certainly would have used “shall,”
 

mandating such action. Id. (“shall” implies a duty or
 

2 This Court has certainly consistently eschewed any


deviation from our “textualist” approach.
 

5
 
requirement). Moreover, the citizens of Detroit surely did
 

not intend to grant the city the discretionary and exclusive
 

power to enforce both the rights under the charter and all
 

others retained by the people. Thus, by use of the permissive
 

and discretionary term, the drafters indicated an intention to
 

permit enforcement mechanisms beyond those powers granted to
 

the city. Any other interpretation ignores the text of the
 

charter.
 

Reference to the city’s ordinances supports this
 

interpretation of the charter.3 In 1988, the city
 

deliberately clarified that those who experienced
 

discrimination on the basis of AIDS and conditions related to
 

AIDS could bring a civil action to enforce their rights
 

granted by the city. Chapter 27, article 7 prohibits such
 

discrimination in the employment, housing, business, and
 

educational arenas. See generally, §§ 27-7-1 to 27-7-90. In
 

particular, the charter prohibits discrimination in the
 

provision of public facilities or services. Section 27-7-7.
 

The enforcement provision includes the following subsection:
 

Any aggrieved person may enforce the
 

provisions of this article by means of a civil


action. [Section 27-7-10(a).]
 

3 Brady v Detroit, 353 Mich 243, 248; 91 NW2d 257 (1958)


(“Provisions pertaining to a given subject matter must be


construed together, and if possible harmonized. It may not be


assumed that the adoption of conflicting provisions was


intended.”)
 

6
 
 

Clearly, the city intended to create a civil cause of action
 

for the victims of such discriminatory practices. Assuming
 

drafters of the ordinance did not intend to contravene the
 

charter, which we must, we may only conclude that the
 

authority granted to the city in the declaration of rights,
 

§ 8, did not give the city the sole right to enforce the
 

charter. 


Although defendant correctly referenced ordinance 27-7­

10, it draws the wrong conclusion. As noted, article 7 of
 

chapter 27 was enacted in 1988. Detroit Ordinance § 24-88,
 

July 14, 1988; see also Detroit Ordinance § 33-88, September
 

21, 1988. In contrast, the enabling ordinances at issue here
 

were enacted in 1979. Detroit Ordinance § 303-H, January 24,
 

1979. It is entirely reasonable to conclude that the city
 

simply intended to clarify that a private cause of action
 

could be had under the charter when enacting § 27-7-10, as had
 

been authorized implicitly by the charter.
 

The inclusion of § 27-2-10 was particularly appropriate
 

because of the circuit courts’ treatment of similar claims.
 

In this case, for example, the court noted that this issue had
 

arisen in the past. Without direction from the Court of
 

Appeals, the trial court refused to recognize a cause of
 

action. Certainly an ordinance or charter amendment that made
 

clear that a cause of action existed for a violation of any
 

7
 
right provided by the charter would have made this exercise
 

even simpler. However, its absence cannot force the
 

conclusion that an action only for AIDS-related discrimination
 

was intended. In this age of the overly rhetorical and often
 

vacuous concern over “special rights,” it is unreasonable to
 

presume the charter permits individual actions for AIDSrelated discrimination, but not for the other forms of
 

discrimination enumerated in the declaration of rights, § 2.
 

Therefore, though we often rely on the maxim that the
 

inclusion of one term implies the exclusion of another, that
 

inference loses force where the circumstances indicate
 

otherwise.4 In this case, the circumstances suggest the
 

opposite, i.e., that the express provision of a cause of
 

action for AIDS-related discrimination only clarifies that the
 

charter permitted such actions for all violations. 


Additional support for this conclusion can be found in
 

the drafters’ decision to include two provisions that suggest
 

that Detroit’s citizens retained the right to sue for
 

violations of the charter. The declaration of rights clearly
 

states:
 

The enumeration of certain rights in this
 

4

 See Luttrell v Dep’t of Corrections, 421 Mich 93, 102;


365 NW2d 74 (1984) (holding that “the effect of the rule


‘expressio unius est exclusio alterius,’ while a valid maxim,
 

[may be] so much at odds with the other [rules of
 

construction] that reason dictates it [may be] inapplicable”).
 

8
 
Charter shall not be construed to deny or disparage


others retained by the people. [Declaration of


Rights, § 7.]
 

In that same vein, the charter’s chapter on human rights ends
 

with the following proclamation: 


This chapter shall not be construed to
 

diminish the right of any party to direct any


immediate legal or equitable remedies in any court


or other tribunal. [Section 7-1007.] 


This evidence indicates an intention to create a scheme
 

whereby the administrative remedies supplement an individual’s
 

ability to bring a private cause of action.5 In light of this
 

analysis, a rational interpreter must conclude that neither
 

the drafters nor the citizenry intended to grant the city
 

exclusive, discretionary authority to remedy violations of the
 

rights granted in the charter. Therefore, I would hold that
 

the charter does, in fact, create a damages action for
 

discrimination based on sexual orientation.
 

III. IMMUNITY AS AN AFFIRMATIVE DEFENSE
 

The majority has opportunistically seized on the
 

5The charter’s preamble provides additional support for


the conclusion that the charter created both rights and


remedies to which the city itself must adhere:
 

We, the people of Detroit, do ordain and


establish this Charter for the governance of our


city, as it addresses the programs, services and


needs of our citizens; . . . pledging that all our
 

officials, elected and appointed, will be held
 

accountable to fulfill the intent of this 

Charter . . . . [Emphasis added.] 

9 
circumstances presented in this case to overrule decades of
 

sound precedent and unsettle an area of law that had finally
 

achieved some stability. In proclaiming that plaintiff must
 

plead in avoidance of immunity, the majority ignores not only
 

the value of precedent, but also the sound principles on which
 

McCummings v Hurley Medical Ctr, 433 Mich 404; 446 NW2d 114
 

(1989), was based. In McCummings, the Court held that the
 

entity claiming immunity must affirmatively plead the defense.
 

This unanimous pronouncement was based, in part, on the
 

doctrine’s statutory foundation. No longer could we solely
 

rely on the doctrine’s common-law history to determine the
 

parameters of the defense.6 Therefore, though the judiciary
 

traditionally considered sovereignty a “characteristic” of
 

government, this understanding was no longer dispositive of
 

procedural or substantive issues once the Legislature codified
 

the doctrine. This view is no less relevant today, and the
 

majority’s attempt to proclaim otherwise by once again relying
 

on outdated jargon adds little to our understanding of
 

governmental immunity. 


Having identified a flaw in the majority’s deceptively
 

useful rationale (i.e., because the Court has declared
 

6 See Const 1963, art 3, sec 7 (“The common law and the


statute laws now in force, not repugnant to this constitution,


shall remain in force until they expire by their own


limitations, or are changed, amended or repealed.”)
 

10
 
immunity a “characteristic” in the past, it is not an
 

affirmative defense), we must now turn to its substantive
 

conclusions. Does the governmental immunity statute require
 

that plaintiffs plead in avoidance of immunity? MCL 691.
 

1407(1) provides:
 

Except as otherwise provided in this act, a


government agency is immune from tort liability if


[it] is engaged in the exercise or discharge of a


governmental function.
 

Although this section makes clear that governmental entities
 

may claim immunity when performing a governmental function, it
 

does not, as the majority claims, create a textual presumption
 

in favor of the government. Rather, the statute identifies
 

the scope of immunity. The procedural duty to plead is simply
 

not mentioned, and as such, the text–as it pertains to
 

pleading–is silent.
 

Building on this Court’s pronouncement in Ross v
 

Consumers Power (On Rehearing), 420 Mich 567; 333 NW2d 641
 

(1984), which clarified that the Legislature intended that
 

immunity from tort liability exist only when an entity was
 

engaged in a governmental function, the McCummings Court
 

arrived at the most logical conclusion, i.e., that “[t]he
 

question whether a governmental agency was engaged in a
 

governmental function when performing the act complained of is
 

a question best known to the agency and best asserted by it.”
 

11
 
Id. at 411. 7 Furthermore, the McCummings Court correctly
 

noted that no valid reason to exempt agencies from the
 

pleading burden placed upon individuals could be discerned.
 

The source of immunity for both government bodies and
 

individuals is grounded in § 1407. Because the text makes no
 

distinction in this regard, a prudent observer will agree that
 

the majority’s reversal is based on its own policy
 

considerations, which ignore both the intent of the
 

Legislature and the judicially sound doctrine of stare
 

decisis. This is particularly true because, though the
 

Legislature revised the GTLA after McCummings in 1986, 1996,
 

and 1999, it failed to amend the statute to alter the rule
 

that placed the burden of pleading on the government.
 

Unfortunately, the majority dismisses this legislative
 

acquiescence, an indicator of its intent.
 

In sum, the fact remains that governmental immunity is a
 

defense to liability. Although the majority erroneously
 

declares that plaintiff must plead in avoidance of the
 

doctrine, the government continues to bear the onus of proof.
 

If a trial court finds the parties have equally carried the
 

7The Court in Ross undertook an almost impossible task,


clarifying more than a century’s worth of judicial and


legislative commentary on governmental immunity. It did not,


however, examine on which party the burden of pleading should


fall. Any reference to that burden in Ross does not, contrary


to the majority’s assertions, diminish the foundation on which


the Court in McCummings relied. 


12
 
burden of production concerning the applicability of the
 

doctrine, the court must find for the plaintiff. Any
 

indication to the contrary in the majority’s opinion may only
 

be referenced as dicta, as the issue this case presents is
 

limited to the sufficiency of the pleadings. 


Shockingly, without the issue being contemplated, let
 

alone raised by the parties, the majority concludes that
 

plaintiff’s claim should have been dismissed for its failure
 

to plead in avoidance of government immunity. Slip op at 2,
 

21-22, 26. However, our precedent and court rules had
 

expressly placed this burden on the government. I object to
 

the majority’s application of its holding, which placed the
 

burden of prescience on plaintiff.
 

IV. PRINCIPLES OF THE ADVERSARY SYSTEM
 

The majority’s disingenuous response to the dissenting
 

opinions requires clarification. The majority claims that any
 

briefing on the propriety of the rule in McCummings would be
 

a waste of time because “additional briefing would not assist
 

this Court in addressing this question of law.” Slip op at
 

22. This comment flies in the face of the foundations of our
 

adversarial system, in which the parties frame the issues and
 

arguments for a (presumably) passive tribunal. The
 

adversarial system ensures the best presentation of arguments
 

and theories because each party is motivated to succeed.
 

13
 
Moreover, the adversarial system attempts to ensure that an
 

active judge refrain from allowing a preliminary understanding
 

of the issues to improperly influence the final decision.
 

This allows the judiciary to keep an open mind until the
 

proofs and arguments have been adequately submitted.8 In
 

spite of these underlying concerns, the majority today claims
 

that the benefits of full briefing are simply a formality that
 

can be discarded without care. The majority fails to
 

comprehend how the skilled advocates in this case could have
 

added anything insightful in the debate over the proper
 

interpretation of a century’s worth of precedent. Whatever
 

its motivation, the majority undermines the foundations of our
 

adversarial system. 


The majority also implies that the “central question in
 

this case was whether the charter’s purported creation of a
 

cause of action for sexual orientation discrimination is
 

preempted” by the GTLA. Slip op at 23. However, the extent
 

of the parties’ preemption briefing focused solely on the
 

relevance of the Civil Rights Act vis-à-vis the chartercreated cause of action. Moreover, the questions by this
 

Court during oral argument do not substitute for proper
 

8 See Hazard, Ethics in the Practice of Law, pp 120-123,


126-129, 131-135, cited in Tidmarsh & Trangsrud, Complex
 

Litigation and the Adversary System, (New York: Foundation
 

Press, 1988).
 

14
 
 

briefing, but only illustrate how the Court pursues its own
 

end in a fashion unanticipated by the parties.
 

While occasionally a court may find it necessary to
 

resolve an issue not briefed by the parties, the frequency
 

with which the majority undertakes such activist endeavors
 

demonstrates its desire to arrive at its destination.9
 

9

 The majority frequently engages in at least three


distinct types of activist behavior: overruling precedent; in


grants of leave, directing parties to address issues not


initially raised or briefed by the parties in their
 

application for leave to appeal; and, as in this case, holding


dispositive issues neither raised nor argued before this


Court.
 

To review instances where this majority has overruled


precedent, see, e.g., People v Cornell, 466 Mich 335; ___ NW2d


___ (2002); Koontz v Ameritech Svcs, Inc, 466 Mich 304; 645


NW2d 34 (2002); Robertson v DaimlerChrysler Corp, 465 Mich


732; 641 NW2d 567 (2002); Pohutski v City of Allen Park, 465


Mich 675; 641 NW2d 219 (2002); Hanson v Mecosta Co Rd Comm'rs,


465 Mich 492; 638 NW2d 396 (2002); Brown v Genesee Co Bd of
 

Cmmr's, 464 Mich 430; 628 NW2d 471 (2001); People v Glass, 464
 

Mich 266; 627 NW2d 261 (2001); Nawrocki v Macomb Co Rd Comm,


463 Mich 143; 615 NW2d 702 (2000); Mudel v Great Atlantic &
 

Pacific Tea Co, 462 Mich 691; 614 NW2d 607 (2000); Stitt v
 

Holland Abundant Life Fellowship, 462 Mich 591; 614 NW2d 88
 

(2000); Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000);


People v Kazmierczak, 461 Mich 411; 605 NW2d 667 (2000);
 

McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999); People
 

v Lukity, 460 Mich 484; 596 NW2d 607 (1999); Ritchie-Gamester
 

v Berkley, 461 Mich 73; 597 NW2d 517 (1999).
 

For examples of grant orders which directed the parties’


to address issues the majority found relevant, see People v
 

Glass, 461 Mich 1005; 610 NW2d 872 (2000) (directing the


parties to address whether the prosecutor’s actions removed


the taint of alleged racial discrimination in the grand jury


selection process, whether MCR 6.112 conflicted with MCL


767.29, and whether the Court properly exercised its authority


over criminal procedure). See also People v Hardiman, 465
 

(continued...) 

15
 
(...continued)

Mich 902; 638 NW2d 744 (2001) (directing the parties to brief


whether “the inference upon inference rule of People v Atley,


392 Mich 298 (1974), was violated under the facts . . . and


whether that decision should be overruled”); People v Johnson,


465 Mich 911; 638 NW2d 747 (2001) (directing the parties to


brief whether this Court should adopt the federal subjective


entrapment defense); People v Reese, 465 Mich 851; 631 NW2d


343 (2001) (directing the parties to “specifically address


whether MCL 768.32 prevents this Court from adopting the


federal model for necessarily lesser included offense
 

instructions and, if it does, whether such prohibition


violates Const 1963, art 6, § 5. In all other respects, leave


to appeal is denied.”); People v Lett, 463 Mich 939, 620 NW2d


855 (2000) (rejecting the prosecutor’s concession concerning


the constitutional nature of the error and directing the


parties to address whether the trial court’s declaration of a


mistrial was based on manifest necessity; further ordering the


parties to address six additional issues, including whether


the defendant’s claim was forfeited or waived and the extent
 

to which the law might be clarified concerning presence of


manifest necessity).
 

I thank the majority for pointing out that I object both


when the parties have not had an opportunity to argue or brief


an issue, and when the majority has forced the disposition of


an issue not raised by either party. To clarify, it’s not that


I wish to have “it both ways,” but that I object to judicial


activism in any form. 


Further, the majority accurately documents that,


throughout my twenty-year tenure on this Court, I have, on


occasion, found it necessary to overrule precedent or request


briefing on an issue. The majority also clarifies that policy


considerations may influence one’s understanding of the


appropriate method by which to apply or interpret the law.


With this I do not disagree. Neither the majority nor I can


escape the fact that, as judges, we are not computers, but


human beings, doing our best to apply the law in an unbiased


fashion, in accord with our constitutional mandate and within


the strictures of the adversary system. Whether in the
 

majority or the dissent, every justice must recognize and


appropriately set aside such considerations in the execution


of their duties under the law.
 

16
 
V. CONCLUSION
 

Because a majority of this Court erroneously refuses to
 

recognize that the charter creates a cause of action and that
 

plaintiff need not plead in avoidance of immunity, there is no
 

need to thoroughly analyze the remaining issues. Suffice it
 

to say, I would hold that a municipality has the power, on the
 

basis of the police powers inherent in its home rule
 

authority, to protect its citizens from discrimination. No
 

state law preempts this protection, and governmental immunity
 

does not bar an action based not on a theory of tort
 

liability, but on a violation of the organic law of a city
 

granting its citizens fundamental rights. Therefore, for the
 

reasons noted, I would affirm the judgment of the Court of
 

Appeals.
 

KELLY, J., concurred with CAVANAGH, J.
 

17
 
 

_________________________ 

 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

LINDA MACK,
 

Plaintiff-Appellee,
 

v No. 118468
 

THE CITY OF DETROIT,


a Michigan Municipal Corporation,
 

Defendant-Appellant.
 

WEAVER, J. (dissenting)
 

I dissent from the majority decision.
 

The majority has decided important issues involving
 

governmental immunity that were not raised or briefed by the
 

parties and that are very significant to the people of Detroit
 

and all the people of Michigan. The majority should have
 

insured that it had briefing and heard argument on these
 

issues before deciding them. 


A
 

Without the benefit of briefing or argument, the majority
 
 

overrules settled precedent1 to hold that governmental
 

immunity cannot be waived because it is a characteristic of
 

government. In McCummings v Hurley Medical Ctr, 433 Mich 404,
 

411; 466 NW2d 114 (1989), this Court held that governmental
 

immunity must be pleaded as an affirmative defense. The
 

majority overrules McCummings and holds that immunity is an
 

unwaivable characteristic of government. The parties did not
 

raise or address in any court whether governmental immunity is
 

a characteristic of government or an affirmative defense.2
 

While the general concept of governmental immunity was
 

alluded to in questioning during oral argument before this
 

Court, the questioning did not reference the concept of
 

immunity as a characteristic of government and did not
 

foreshadow an intent to reconsider McCummings. The majority’s
 

decision to reach out and overrule a case that was not raised,
 

1The majority’s assertion that McCummings is an
 

“aberration” is their view. However, it was signed by six


justices with Justice Griffin concurring separately and has


been the law for fourteen years. See, e.g. Scheurman v Dep’t
 

of Trans, 434 Mich 619; 456 NW2d 66 (1990), and Tyrc v
 

Michigan Veterns’ Fund, 451 Mich 129; 545 NW2d 642 (1996).
 

2Although the city raised governmental immunity as an


affirmative defense at the trial court level, the city never


specifically addressed immunity relative to plaintiff’s


charter-based claim of sexual orientation discrimination at
 

any level. The only briefing regarding immunity in the trial


court was in response to plaintiff’s intentional infliction of


emotional distress claim. Plaintiff abandoned that claim in
 

the trial court and thereafter, the city abandoned its


immunity claim.
 

2
 
 

briefed, or argued is certainly efficient. However, the
 

majority’s efficiency in this case forsakes procedural
 

fairness. It is worth emphasis that the majority can only
 

conclude that the city has not waived governmental immunity by
 

overruling McCummings.
 

I decline the majority’s invitation to take a position
 

without briefing and argument on whether governmental immunity
 

is a characteristic of government, an affirmative defense, or
 

some other judicially determined hybrid. These
 

characterizations have significant procedural consequences.
 

It is the role of the Court to respond to issues properly
 

before it and to seek additional briefing and argument on
 

significant matters that may have been overlooked by the
 

parties. This is especially true where the issues are of
 

great importance, such as the issues not briefed or argued in
 

this case, which seriously affect the settled law of this
 

state.
 

The majority’s decision to address and resolve this issue
 

without briefing or argument is inappropriate. Before
 

deciding this significant change in the law of governmental
 

immunity, the Court should have had briefing and argument. 


B
 

The question whether a charter-created cause of action
 

for sexual orientation discrimination conflicts with the
 

3
 
governmental tort liability act (GTLA), MCL 691.1407, a
 

question that the majority concludes decides this case, was
 

not briefed or argued by the parties at any level.3 It is not
 

possible to agree with the majority contention that this
 

specific question was “squarely in front of the parties” when
 

neither party addressed it at any level. Ante at 24. The
 

conflict analysis of the parties and the courts below
 

addressed whether a charter-created cause of action for sexual
 

orientation discrimination conflicted with the Civil Rights
 

Act (CRA). Furthermore, the city only characterized the
 

question of conflict with CRA as one premised on the law of
 

preemption in its brief to this Court. It is again worthy of
 

note that it is only the majority’s overruling of McCummings
 

that allows the majority to shift the focus of the conflict
 

analysis from the CRA to the GTLA.
 

C
 

Although the majority asserts that whether the electors
 

of Detroit intended to create a cause of action to vindicate
 

the charter-created civil right to be free from sexual
 

orientation discrimination is an “irrelevant” inquiry, the
 

intent of the electors, as expressed in the charter is
 

3The Michigan Constitution and the Home Rule City Act


require that home rule city charters not conflict with state


law.
 

4
 
noteworthy.4 After all, the issue presented at the outset of
 

this case was whether the charter language created a cause of
 

action to vindicate the charter’s declaration of rights. 


The charter’s declaration of rights provides:
 

The city has an affirmative duty to secure the


equal protection of the law for each person and to


insure equality of opportunity for all persons. No
 

person shall be denied the enjoyment of civil or


political rights or be discriminated against in the


exercise thereof because of race, color, creed,


national origin, age, handicap, sex, or sexual


orientation. [ Section 2.]
 

The language of § 2 is not ambiguous. It, as would be
 

commonly understood by the ratifiers, secures a set of rights
 

to each person of Detroit. Furthermore, § 8 of the
 

declaration of rights provides:
 

The city may enforce this Declaration of


Rights and other rights retained by the people. 


While it can be argued that the permissive “may” of § 8
 

tempers the city’s otherwise “affirmative duty” under § 2 to
 

“insure the equality of opportunity for all persons,” it is by
 

no means clear that, pursuant to § 8, the ratifiers intended
 

to diminish the individual rights declared in § 2. More
 

importantly, the unambiguous language of the charter
 

demonstrates that the charter ratifiers, the electors of
 

4Further, it should be of interest to the people of


Detroit that the city’s position in this litigation seeks to


disclaim individual rights that its electors deemed worthy of


charter protection.
 

5
 
Detroit, intended that the people of Detroit have the
 

opportunity to seek enforcement of their charter-based rights
 

in the proper court or tribunal. Art 7, ch 10, § 7-1007
 

provides:
 

This chapter shall not be construed to
 

diminish the right of any party to direct any


immediate legal or equitable remedies in any court


or other tribunal.
 

By these words the ratifiers of the charter would have
 

expected that individuals could also vindicate their charterdeclared rights in the proper court or tribunal.5 In other
 

words, it was the express intent of the electors of Detroit to
 

raise the veil of immunity within the city limits with respect
 

to the civil rights declared in the charter’s declaration of
 

rights. 


The fact that the majority’s decision leaves a charterbased right with no remedy6 accentuates the inappropriateness
 

of the majority’s decision to dispose of this case on the
 

5As reiterated by the United States Supreme Court in


Davis v Passman, 442 US 228, 242; 99 S Ct 2264; 60 L Ed 2d 846


(1979), “‘The very essence of civil liberty,’ wrote Mr. Chief


Justice Marshall in Marbury v Madison, 5 US [1 Cranch] 137,


163; 2 L Ed 60 (1803), ‘certainly consists in the right of


every individual to claim the protection of the laws, whenever


he receives an injury. One of the first duties of government


is to afford that protection.’” 


6

Section 8 of the charter declares that the city “may”


enforce the declaration of rights, not that it “must” enforce


those rights. If the city opts not to enforce the declaration


of rights, as it may so choose to do under § 8, the individual


Detroiter would have a right with no remedy. 


6
 
basis of issues that were not raised, not briefed, and not
 

argued by the parties.
 

KELLY, J., concurred with WEAVER, J.
 

7