Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 18, 2005 

STEPHEN W. WARDA, 

Plaintiff-Appellee, 

v No. 125561 

CITY COUNCIL OF THE CITY OF 

FLUSHING AND CITY OF FLUSHING, 

Defendants-Appellants. 

_______________________________ 

BEFORE THE ENTIRE BENCH 

MARKMAN, J. 

The question presented in this case is whether, 

pursuant to MCL 691.1408(2), Michigan courts possess the 

authority to review a city council’s discretionary decision 

to grant or deny reimbursement of private attorney fees 

incurred by a city police officer. Because the city 

council’s decision under this statute constitutes a 

discretionary act of a separate branch of government, the 

judiciary is without authority to review it. Accordingly, 

we reverse the judgment of the Court of Appeals and remand 
 

this matter to the circuit court for entry of an order 

dismissing plaintiff’s claims. 

I. Facts and Procedural History 

Plaintiff was a Flushing police officer for 

approximately twenty years. Early in his career, at the 

suggestion of the chief of police, plaintiff obtained 

special training from the Secretary of State that certified 

him to inspect "salvage vehicles."1 Plaintiff's employer 

paid for the training, and plaintiff received his regular 

pay while he attended the salvage vehicle inspection 

course. 

At all times relevant to this case, an inspection fee 

of $25 was established by statute. MCL 257.217c(7). On 

the occasions that plaintiff conducted inspections in 

Flushing, plaintiff turned over this fee to the city, which 

deducted taxes and then remitted the balance to plaintiff 

along with his regular pay. On those occasions plaintiff 

conducted inspections outside Flushing, neither the police 

department nor the city of Flushing received any part of 

1

 MCL 257.217c concerns the acquisition and transfer of

distressed vehicles. In general, a seriously damaged 

vehicle (i.e., a “distressed vehicle” as defined by MCL

257.12a) must be issued a salvage certificate of title.

The process of obtaining such a title requires an 

inspection and certification of certain matters by a 

specially trained officer. The specially trained officer

must be a police officer and must be certified by the

Secretary of State. MCL 257.217c(25), (26). The Secretary

of State is responsible for overseeing the conduct of

specially trained officers, and may suspend, revoke, or

deny an officer's certification. MCL 257.217c(26).

2 
 

the associated fees. Plaintiff conducted the vast majority 

of his inspections outside his regular duty shift hours. 

Plaintiff characterized his inspection work as 

"moonlighting" and as providing "supplementary income." 

On March 2, 1992, plaintiff completed two inspection 

reports related to salvage vehicle inspections he conducted 

in Macomb County.2 In these reports, plaintiff verified 

that certain repairs had been made when in fact they had 

not, and declared that the vehicles were roadworthy when in 

fact they were not. Following a criminal investigation, 

plaintiff was charged in April 1994 with false 

certification, a felony. MCL 257.903. The city discharged 

plaintiff on May 25, 1994, for violating department rules 

and regulations, including misconduct and lying about the 

inspections to a Michigan State Police investigator. 

However, in June 1997, a jury in Macomb County acquitted 

plaintiff of the criminal charge of false certification. 

Subsequently, plaintiff requested payment of $205,000 

from defendant for attorney fees incurred in defending the 

criminal charges. Plaintiff cited MCL 691.1408(2) as a 

basis for the city to reimburse such fees. By a resolution 

adopted at a meeting on September 8, 1997, the city council 

denied this request; it reiterated its position in a 

resolution adopted on June 22, 1998. The two resolutions 

2

 The city of Flushing is located in Genesee County. 

3 
explained that plaintiff's request for fees was denied 

because plaintiff's actions that had resulted in the fees 

were not for any "public purpose" of the city of Flushing 

and fell outside the scope of plaintiff's employment with 

the city. 

Plaintiff filed the instant complaint for declaratory 

relief and a motion for summary disposition, contending 

that the city abused its discretion in denying his request 

for attorney fees. Following a two-day bench trial in 

October 2001, the trial court found that: (1) while 

performing salvage vehicle inspections, plaintiff was 

acting in the course of his duties as a Flushing police 

officer; (2) the city council did not "offer one credible 

or acceptable reason" for denying plaintiff's fee request; 

and (3) a reasonable attorney fee was $109,200. 

In a divided opinion, the Court of Appeals affirmed. 

Unpublished opinion per curiam, issued December 23, 2003 

(Docket No. 241188). The majority concluded that the 

circuit court had not clearly erred in finding that 

plaintiff acted within the scope of his employment when he 

inspected salvage vehicles, or in finding that the city 

abused its discretion when it denied plaintiff 

reimbursement of his attorney fees. The dissenting judge 

would have reversed, concluding that the circuit court had 

clearly erred in finding that plaintiff's work as a salvage 

4
 
vehicle inspector fell within the scope of his employment 

as a Flushing police officer. 

We granted oral argument on whether to grant 

defendants’ application for leave to appeal pursuant to MCR 

7.302(G)(1), and directed the parties to include among the 

issues briefed “whether the city council's decision is 

subject to judicial review.” Warda v Flushing City 

Council, 471 Mich 907 (2004). 

II. Standard of Review 

This dispute requires us to determine whether the 

judiciary has the authority pursuant to the Constitution 

and MCL 691.1408(2) to review the city council’s denial of 

plaintiff’s request for reimbursement. We review these 

issues de novo. Lapeer Co Clerk v Lapeer Circuit Judges, 

465 Mich 559, 566; 640 NW2d 567 (2002); Jeffrey v Rapid 

American Corp, 448 Mich 178, 184; 529 NW2d 644 (1995). 

III. Analysis 

The question presented here concerns the extent to 

which the decision of a municipality to deny reimbursement 

for attorney fees under MCL 691.1408(2) is subject to 

judicial review. Michigan has long recognized that a 

municipality may indemnify a police officer for costs, 

including attorney fees, incurred because of the discharge 

of the officer's official duties. Messmore v Kracht, 172 

Mich 120, 122; 137 NW 549 (1912). This principle is 

5
 
reflected in § 8 of the governmental immunity act, MCL 

691.1408. As for the costs incurred by an officer in 

defending a criminal action based on conduct of the officer 

in the course of his employment, MCL 691.1408(2) provides: 

When a criminal action is commenced against

an officer or employee of a governmental agency

based upon the conduct of the officer or employee

in the course of employment, if the employee or

officer had a reasonable basis for believing that

he or she was acting within the scope of his or

her authority at the time of the alleged conduct,

the governmental agency may pay for, engage, or

furnish the services of an attorney to advise the

officer or employee as to the action, and to

appear for and represent the officer or employee

in the action. An officer or employee who has

incurred legal expenses after December 31, 1975

for conduct prescribed in this subsection may

obtain reimbursement for those expenses under 

this subsection. [Emphasis added.] 

For purposes of the statute, “governmental agency” is 

defined as “the state or a political subdivision.” MCL 

691.1401(d). “Political subdivision” is further defined: 

“Political subdivision” means a municipal 

corporation, county, county road commission,

school district, community college district, port

district, metropolitan district, or 

transportation authority or a combination of 2 or

more of these when acting jointly; a district or

authority authorized by law or formed by 1 or

more political subdivisions; or an agency,

department, court, board, or council of a 

political subdivision. [MCL 691.1401(b)

(emphasis added).] 

Thus, the Flushing city council constitutes a “governmental 

agency” for purposes of the governmental immunity act. 

The use of the word “may” in § 8 makes clear that the 

decision to pay an officer's attorney fees is a matter left

6 
to the discretion of the municipality. Further, we note 

that the statute does not limit or qualify the word “may” 

(with, for instance, a requirement of reasonableness) or 

provide any other standards by which that discretion is to 

be exercised. As such, the Flushing city council had full 

discretion under MCL 691.1408(2) in choosing whether to 

reimburse plaintiff’s attorney fees. 

The question, then, is the nature of this Court's 

power to review a purely discretionary action taken by a 

governmental agency. In Veldman v Grand Rapids, 275 Mich 

100; 265 NW 790 (1936), we were faced with the question 

whether the plaintiffs, a group of Grand Rapids taxpayers, 

could sue to prevent the city’s purchase of a power plant, 

where such purchase had been approved by that city’s 

legislative body, the city commission. This Court 

observed: 

If the city commission had legal authority

to do what it did do, that ends the matter. The

question of whether the commissioners acted 

wisely or unwisely is not for the consideration

or determination of this court. 

* * * 

If the charter of the city of Grand Rapids

is constitutional, and of this there seems to be

no question, and the State has thus conferred

upon the city commission the power which it 

exercised and left the exercise of it to the 

judgment and discretion of the commissioners,

then their action is conclusive. [Id. at 112-

113.] 

7
 
 

 

In the instant case, the state, through § 8 (the 

constitutionality of which has not been challenged), has 

clearly “conferred upon the city [council] the power which 

it exercised and left the exercise of it to the judgment 

and discretion” of the city council. Veldman, supra at 

113. While the statute affords the city council the 

discretion to decide whether to reimburse a claim for 

attorney fees, the statute says nothing about the limits 

within which that discretion is to be exercised, let alone 

by which an appellate court would be guided in its review 

of a decision made pursuant to that discretion. As such, 

the Flushing city council’s action to deny reimbursement of 

attorney fees is conclusive. Whether the council acted 

wisely or unwisely, prudently or imprudently, is not for 

the consideration or determination of this Court.3 

3

 We stress that this opinion only precludes the

judiciary from reviewing the discretionary decision-making

of legislative and executive agencies. Where decisionmaking falls outside the scope of such discretion, such

decision-making would be fully subject to judicial review. 

For instance, MCL 691.1408(2) confers discretionary

decision-making authority on a governmental agency if three

criteria are met: (1) a criminal action has been commenced

against an employee; (2) the criminal action is based on

the conduct of the employee occurring in the course of

employment; and (3) the employee has a reasonable basis for

believing that he or she was acting within the scope of his

or her authority at the time of the conduct. If any of

these three criteria are not satisfied, a legislative or

executive agency would lack the statutory discretion to

award attorney fees. Therefore, if a legislative or 

executive agency chose to award attorney fees to a 

nonemployee, for example, the discretion afforded the 

8 
 

As a result, we see no need to take sides in the 

matter addressed and resolved, both by the trial court and 

the Court of Appeals, regarding whether plaintiff's work as 

a salvage vehicle inspector fell within the scope of his 

employment as a Flushing police officer. 

The following passage from People v Gardner, 143 Mich 

104, 106; 106 NW 541 (1906), succinctly summarizes both 

the role of the judiciary and the appropriate form of 

relief available to a plaintiff in a matter of this sort:4 

“The general rule is well established that

courts will not inquire into the motives of 

legislators where they possess the power to do 

the act, and it has been exercised as prescribed

by the organic law. In such case the doctrine is 

that the legislators are responsible alone to the

people who elect them. And this principle is

generally applied to purely legislative acts of

municipal corporations.” [Citation omitted.] 

agency under MCL 691.1408(2) would not preclude the courts

from reviewing such a decision, because the preconditions

giving rise to the discretionary authority would not have

been met. 

4

 In the past this Court has considered whether such

discretionary actions are subject to judicial review and 

have concluded that they are not. See, e.g., Schwartz v 

City of Flint, 426 Mich 295, 305-313; 395 NW2d 678 (1986).

These cases are predicated on the doctrine of separation of

powers that is set forth in Const 1963, art 3, § 2, which

provides that “[t]he powers of government are divided into

three branches: legislative, executive and judicial,” and

further provides that “[n]o person exercising powers of one

branch shall exercise powers properly belonging to another

branch except as expressly provided in this constitution.”

We have recognized that the doctrine of the separation of

powers applies to municipalities when exercising the powers

delegated to them by the Legislature pursuant to Const

1963, art 7, §§ 21 and 22. 

9 
 

 

So long as the power to govern the city and control 

its affairs is vested by the people of Flushing in an 

elected city council, neither this Court nor any other may 

assume to direct the local policy of the city of Flushing. 

See Veldman, supra at 111; Huse v East China Twp Bd, 330 

Mich 465, 470-471; 47 NW2d 696 (1951). Here, the city 

council concluded that the reimbursement of plaintiff’s 

attorney fees would not serve the “public purposes” of the 

city of Flushing, and chose not to reimburse such fees. 

While such a decision might be one with which reasonable 

people would disagree, its wisdom is ultimately to be 

judged by the voters of the city of Flushing, and not by 

the judiciary of this state. Accordingly, because the 

statute provides no limits within which the city council’s 

discretion is to be exercised, let alone by which an 

appellate court would be guided in its review of an 

exercise of that discretion, MCL 691.1408(2) affords 

plaintiff no basis for relief.5 

Moreover, in enacting MCL 691.1408(3), which precludes 

governmental liability under this act, the Legislature 

demonstrated an appreciation of this limitation on judicial 

5

 Plaintiff here does not identify any other statute

pertinent to defendants that would render their conduct

either illegal or ultra vires. See People v Ford, 417 Mich

66, 91; 331 NW2d 878 (1982). Obviously, the fact that one

statute does not render conduct unlawful does not mean that 

another statute may not do so. 

10
 
power. MCL 691.1408(3), then, is not inharmonious with the 

separation of powers considerations that we have set forth. 

However, while we conclude that there is no statutory 

basis for our review of the city council’s decision, that 

conclusion does not end the inquiry. Even a discretionary 

action of a governmental agency must still comport with the 

constitutions of this state and the United States. As we 

have noted elsewhere: 

[T]he power of judicial review does not 

extend only to invalidating unconstitutional 

statutes or other legislative enactments, but 

also to declaring other governmental action 

invalid if it violates the state or federal 

constitution. [Sharp v City of Lansing, 464 Mich

792, 810-811; 629 NW2d 873 (2001).] 

The decisions of a governmental agency, for example, 

to award attorney fees on the basis of race, religion, or 

nationality might implicate the equal protection guarantees 

of the federal and state constitutions, while decisions 

influenced by corruption might implicate the due process 

guarantees of these same constitutions. See Huse, supra at 

470-471. 

However, plaintiff here does not suggest that the city 

council’s decision was unconstitutional in any way. Nor is 

there any evidence in the record that would suggest such 

unconstitutionality. Rather, the record reflects that the 

city council was faced with a discretionary decision that 

required it to choose among several permissible outcomes, 

11
 
 

and it chose accordingly. The gravamen of plaintiff’s 

argument is simply that he is unhappy with the option the 

city council selected. Yet his dissatisfaction, however 

reasonable to this Court, does not call into question an 

otherwise valid decision of a governmental agency.6 Where, 

6

 While the exercise of discretion at issue here (a

city council resolution) was legislative in nature, our

holding extends equally to encompass discretionary actions

undertaken by the executive branch in the absence of a

guiding standard. In Sutherland v Governor, 29 Mich 320,

321 (1874), the Governor was empowered by statute to issue

a certificate of approval “when he shall be satisfied that

certain work has been done in conformity with the law.”

The parties performing the work brought a mandamus action

to compel the Governor to issue such a certificate. This 

Court declined, for lack of jurisdiction, to entertain the

application for mandamus. We observed: 

The law must leave the final decision upon

every claim and every controversy somewhere, and

when that decision has been made, it must be

accepted as correct. The presumption is just as

conclusive in favor of executive action as in 

favor of judicial. The party applying for 

action, which, under the constitution and laws,

depends on the executive discretion, or is to be

determined by the executive judgment, if he fails

to obtain it, has sought the proper remedy and

must submit to the decision. [Id. at 330-331.] 

See also Midland Co Bd of Supervisors v Auditor General, 27

Mich 165, 166 (1873) (“the exercise of an official 

discretion belonging to an executive department of the

State government, is not subject to review judicially, and

cannot, therefore, be examined upon certiorari from this 

Court”). 

Where the executive carries out a function that is 

part of the inherent executive power and for which there

are no constitutional or other standards, the judiciary is

equally without power to review executive action. See, 

e.g., United States v Curtiss-Wright Export Corp, 299 US

304, 320; 57 S Ct 216; 81 L Ed 255 (1936) (noting that the

President’s inherent power to handle international 

12 
 

as here, a statute empowers a governmental agency to 

undertake a discretionary decision, and provides no limits 

to guide either the agency’s exercise of that discretion or 

the judiciary’s review of that exercise, the decision is 

not subject to judicial review absent an allegation that 

the exercise of that discretion was unconstitutional. 

In reaching a contrary conclusion, the Court of 

Appeals relied on Exeter Twp Clerk v Exeter Twp Bd, 108 

Mich App 262; 310 NW2d 357 (1981), and Bowens v City of 

Pontiac, 165 Mich App 416; 419 NW2d 24 (1988). In Exeter, 

a township clerk hired private counsel in connection with a 

primary election after the township attorney declined to 

advise her on the legality of certain nominating petitions. 

When the township board refused to reimburse the clerk for 

relations “does not require as a basis for its exercise an

act of Congress, but . . . must be exercised in 

subordination to the applicable provisions of the 

Constitution”); Cunningham v Neagle, 135 US 1; 10 S Ct 658;

34 L Ed 55 (1890). 

Where an executive branch action constitutes action 

taken pursuant to a legislative grant of authority and in

accordance with standards set forth by the Legislature—a 

realm of action that encompasses virtually all 

administrative agency actions—it would normally be subject

to judicial review. In such cases, there would be a

legislatively set standard that a court of law would apply

in reviewing such an action. See Dep't of Natural 

Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206

(1976). 

13
 
 

 

her attorney fees and costs, she filed a mandamus action to 

obtain reimbursement under MCL 691.1408.7 

The Exeter panel recognized that there were “no 

statutory guidelines demonstrating any legislative intent 

to answer the question of legal fee indemnification or 

reimbursement,” and no cases directly on point. Exeter, 

supra at 268. The panel also recognized the wide 

discretion afforded to a municipality under the statute: 

[A] municipality, such as a township, in

general possesses the discretion to determine 

whether (1) counsel for the township shall 

represent a township official sued in his or her

capacity, (2) to approve retention of private

counsel paid for by the township, (3) to 

indemnify the official for expenses incurred in

defending the action, including attorneys fees,

or (4) the township board may decline to provide

legal representation or indemnification for such

official. [Id. at 269.] 

However, in spite of this recognition, the Exeter 

panel disregarded the latitude statutorily afforded to the 

7

 We note that while plaintiff in the instant case did

not label his complaint as one for mandamus, he was in

essence seeking a writ of mandamus from the circuit court

to compel the city council to pay him his attorney fees.

However, a writ of mandamus will be issued only where a

plaintiff can prove that he has a “‘clear legal right to

performance of the specific duty sought to be compelled’ 

and that the defendant has a ‘clear legal duty to perform 

such act . . . .’” In re MCI Telecom Complaint, 460 Mich

396, 442-443; 596 NW2d 164 (1999) (citation omitted). 

While this rule may have prompted the Court in Exeter to 

create its “pressing necessity” exception, there is simply

no statutory basis for such an exception. Accordingly,

because MCL 691.1408(2) provides only that a governmental

agency “may” reimburse attorney fees, plaintiff has not

shown that he had a “clear legal right” to reimbursement,

nor that the city council had a “clear legal duty” to 

reimburse him. In re MCI, supra. 

14 
 

municipality. The panel overlooked the fact that MCL 

691.1408 provided no guidance regarding what standards an 

appellate court might employ in reviewing the township's 

decision; instead, it simply reviewed the decision for an 

abuse of discretion. Id. 

The Exeter panel then proceeded to create a “pressing 

necessity” exception from statutory language, MCL 691.1408, 

that contained no such exception: 

Where it is factually demonstrated that 

pressing necessity or emergency conditions 

warrant a municipal official in employing legal

counsel in a matter of official, public concern

and legal services are provided without consent

of the governing body, the courts may hold a

municipal corporation liable for such legal

services. [Exeter, supra at 269-270.] 

The Court of Appeals later extended this exception to 

apply to legal expenses incurred in the course of defending 

criminal charges. In Bowens, supra, a city councilman who 

went “undercover” to investigate illegal gambling within 

his district was wrongly implicated in a gambling 

enterprise, and incurred legal expenses defending against 

the resulting criminal charges. The Court of Appeals 

concluded that the plaintiff acted reasonably, in good 

faith, and for a public purpose in doing what he did, and 

that the Exeter exception applied because the “plaintiff 

had been faced with an emergency in immediately requiring 

the services of a skilled criminal attorney.” Bowens, 

supra at 420. 

15
 
 

We believe that the Court of Appeals panels in Exeter 

and Bowens misapprehended the limited role afforded to the 

judiciary in cases involving discretionary decisions of a 

governmental agency. To the extent that MCL 691.1408(2) 

sets forth no limits on the exercise of a governmental 

agency’s discretion to reimburse attorney fees, it 

concomitantly sets forth no standards by which the decision 

of such agency can be reviewed meaningfully by the 

judiciary. The exercise of the "judicial power" by this 

Court, Const 1963, art 6, § 1, contemplates that there will 

be standards—legally comprehensible standards—on the basis 

of which agency decisions can be reviewed. Whether such 

standards consist of the provisions of the constitution, or 

the provisions of other pertinent laws, a judicially 

comprehensible standard is required in order to enable 

judicial review.8 Here, there is no such standard. As a 

result, there is no basis upon which a court of law can 

properly review the actions of defendants under MCL 

691.1408(2). Absent a comprehensible standard, judicial 

review cannot be undertaken in pursuit of the rule of law, 

but only in pursuit of the personal preferences of 

8

 Cf. Baker v Carr, 369 US 186, 217; 82 S Ct 691; 7 L

Ed 2d 663 (1962)(referring in the context of the political

question doctrine to the impropriety of courts resolving 

matters in which there is a “lack of judicially

discoverable and manageable standards”).

16 
individual judges. The latter pursuit falls outside the 

“judicial power” in Michigan. 

The Court of Appeals, relying on Exeter and Bowens, 

erred in concluding that decisions made pursuant to MCL 

691.1408(2) are reviewable under an abuse of discretion 

standard. Absent a showing that the governmental agency 

exercised its discretion in an unconstitutional manner, the 

courts are without the power to review such decisions. 

Accordingly, we overrule Exeter and Bowens. 

Because the Court of Appeals erred in reviewing the 

discretionary decisions involved in Exeter and Bowens, it 

follows that the exceptions to MCL 691.1408(2) the Court 

invented as a product of such review are also erroneous. 

However, even if the governmental agency decisions in those 

cases had been properly subject to judicial review, the 

exceptions invented therein still cannot stand. MCL 

691.1408(2) specifies that a “governmental agency may pay 

for, engage, or furnish the services of an attorney 

. . . .” It says nothing about “pressing necessity” or 

“emergency.” Where statutory language is clear, “‘no 

further judicial construction is required or permitted, and 

the statute must be enforced as written.’” Gladych v New 

Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 

(2003)(citation omitted). Because the exceptions adopted 

in Exeter and Bowens not only lack a statutory basis but 

17
 
also violate the clear language of MCL 691.1408(2) that a 

government agency “may” reimburse attorney fees, those 

exceptions cannot stand. 

IV. Conclusion 

Because MCL 691.1408(2) places the decision whether to 

reimburse the attorney fees at issue within the discretion 

of the Flushing city council, the legislative branch of the 

local government, the judiciary is not empowered to review 

such decision absent a constitutional violation or other 

illegality. Where a statute permits a governmental agency 

to undertake a discretionary decision, and provides no 

limits to guide either the agency’s exercise of that 

discretion or the judiciary’s review of that exercise, the 

decision is not subject to judicial review absent an 

allegation that the exercise of discretion was in some way 

unconstitutional. To the extent that they are contrary to 

this rule, the Court of Appeals decisions in Exeter and 

Bowens are overruled. 

The decision of the Court of Appeals is reversed. 

This matter is remanded to the circuit court for entry of 

an order dismissing plaintiff’s claims. 

Stephen J. Markman

Clifford W. Taylor

Maura D. Corrigan

Robert P. Young, Jr. 

18
 
_______________________________ 

v 

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

SUPREME COURT 

STEPHEN W. WARDA, 

Plaintiff-Appellee, 

No. 125561 

CITY COUNCIL OF THE CITY OF 

FLUSHING AND CITY OF FLUSHING, 

Defendants-Appellants. 

WEAVER, J. (dissenting). 

I would grant leave to appeal in this case rather than 

issue a final opinion at this time. This case is currently 

before the Court on an application for leave to appeal. 

The Court ordered oral arguments to help it decide if it 

should grant leave, deny leave, or take some peremptory 

action. 

In its opinion, the majority addresses the broad 

question of judicial power, an issue raised by the Court, 

not the parties. Such an important and far-reaching 

question should not be decided without granting leave to 

appeal and receiving the benefit of full oral argument and 

full briefing, including inviting amicus briefing. 

In granting leave to appeal, I would also ask the 

parties to address whether the plaintiff has a legal remedy 
under MCL 691.1408, or whether subsection 3 of the statute 

prohibits the imposition of liability on a governmental 

agency for a decision made pursuant to subsection 2. MCL 

691.1408, at the time applicable here, stated in relevant 

part: 

(2) When a criminal action is commenced 

against an officer or employee of a governmental

agency based upon the conduct of the officer or

employee in the course of employment, if the

employee or officer had a reasonable basis for

believing that he or she was acting within the

scope of his or her authority at the time of the

alleged conduct, the governmental agency may pay

for, engage, or furnish the services of an 

attorney to advise the officer or employee as to

the action, and to appear for and represent the

officer or employee in the action. An officer or

employee who has incurred legal expenses after

December 31, 1975 for conduct prescribed in this

subsection may obtain reimbursement for those 

expenses under this subsection. 

(3) This section shall not impose any

liability on a governmental agency. [Emphasis

added.] 

Thus, the question would be whether the Legislature has 

specifically provided that a suit seeking to impose on a 

governmental agency liability based on MCL 691.1408, such 

as the suit here, could not be brought. 

Elizabeth A. Weaver 

Michael F. Cavanagh

Marilyn Kelly 

2