Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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, issu**  **ed 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 p**  **ursuant 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 requi**  **rement 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 decision**  **** **making 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 69 1.1408(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 t**  **ownship 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 revi ewing 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 impr opriety 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**

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