Oakland County v. State of Mich.

Mallett, C.J.

{concurring in part and dissenting in part). I join in parts i and n of the lead opinion. I dissent, however, from the lead opinion’s determination that this case should be remanded in order to determine if monetary damages are appropriate. In this case, I believe that declaratory relief is the only proper remedy.

In Durant v Michigan, 456 Mich 175, 204; 566 NW2d 272 (1997), this Court stated that “monetary relief typically will not be necessary in future § 29 cases.” In that case, however, we awarded some monetary relief because of the defendants’ “prolonged recalcitrance.” Id. In Durant, despite losses up and down the appellate ladder, defendants consistently refused to properly fund the activities in question. In fact, defendants refused to honor the decision of the Court of Appeals for nearly seven years.

Certainly, we cannot say that defendants have demonstrated “prolonged recalcitrance” in this case. Before today, no court had determined that the child care fund amendment¹ violated the Headlee Amendment.² The fact that defendants have won every judicial battle before this one precludes any finding that defendants acted in bad faith.

Because I would not award monetary damages, I believe that it is unnecessary to determine the appropriate statute of limitation.

Brickley, J., concurred with Mallett, C.J.

1 1980 PA 328, MCL 400.117a(4); MSA 16.490(27a)(4).

2 Const 1963, art 9, § 29.