of an injunction or money damages; indeed, only a handful of the 27 sections of the Declaration
of Rights mention remedies at all.
3. While the Constitution vests the legislative power of the state in the Senate and House
of Representatives, granting them the right to make laws and to alter or repeal them, it exclusively
vests the judicial power of the state in the Court, which retains all judicial power not ceded to the
federal government. The Separation of Powers Clause of Michigan’s Constitution requires courts
to recognize and redress constitutional violations; in that regard, the Michigan Supreme Court has
primary responsibility for interpreting and enforcing the Constitution absent an explicit
constitutional provision limiting its authority to redress constitutional violations. Stated
differently, vindication of constitutional rights is not dependent on legislative action unless the
Constitution specifically delegates that power to the Legislature. The scope of the Legislature’s
authority to regulate tort liability created by statute has no bearing on whether the Legislature has
authority to restrict rights codified in the Constitution, let alone whether those rights remain
undeveloped without legislative enactment. Further, Legislative silence on the issue of remedies
for a due-process violation under Const 1963, art 1, § 17 does not signal the ratifiers’ intent to
preclude any mechanism of enforcement. However, while the Legislature may not trump the
Constitution, it may enact a remedial scheme to provide a way in which to vindicate a
constitutional right equal to that which the Court could afford. Thus, if the Legislature already
provides an adequate mechanism to remedy a constitutional tort—i.e., one that is at least as
protective of a particular constitutional right as a judicially recognized cause of action would be—
the Court is not required to duplicate the effort. Absent those considerations, the Court retains
authority to vindicate the rights guaranteed by the state’s Constitution, including by recognizing
actions seeking money damages. Accordingly, money damages are an available remedy for
constitutional torts unless (1) enforcement of the constitutional right was delegated to another
branch of government by the Constitution or (2) the Court considers adequate the remedy provided
by another branch of government. By adopting this test, the Court rejected Justice BOYLE’s
multifactor approach in Smith. The Court’s inherent judicial authority requires the Court to afford
a remedy for all constitutional violations, not just those it deems wise or justified. Further, unlike
Justice BOYLE’s test, the standard of liability in a constitutional-damages claim is not limited to a
direct standard of liability; people who have been deprived of a constitutional right may seek
redress through the courts, regardless of whether their harm was inflicted pursuant to state custom
or policy.
4. The Due Process Clause of Michigan’s Constitution, which is part of the Declaration of
Rights, provides that no person shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law. The right of all
individuals, firms, corporations, and voluntary associations to fair and just treatment in the course
of legislative and executive investigations and hearings shall not be infringed. The language of
the Due Process Clause does not confer authority on another branch of government to provide a
remedy for a violation of that right; thus, courts may infer a damages remedy under that provision
if another branch of government has not provided an adequate remedy.
5. In this case, plaintiffs asserted that defendant’s use of MiDAS deprived them of their
property without adequate process and an opportunity to be heard. The Due Process Clause did
not confer authority on another branch of government to provide a remedy for violation of that
right. MESA did not provide a remedy for plaintiffs because they did not challenge the