                         STATE OF MICHIGAN

                          COURT OF APPEALS



JOHN DOES 11-18 and JANE DOE 1/all others             FOR PUBLICATION
similarly situated,                                   March 27, 2018

              Plaintiffs-Appellees,

v                                                     No. 332536
                                                      Washtenaw Circuit Court
DEPARTMENT OF CORRECTIONS,                            LC No. 13-001196-CZ
GOVERNOR, FORMER DIRECTOR
DEPARTMENT OF CORRECTIONS, FORMER
DEPUTY DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER CHIEF DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, WARDEN OF CHARLES
EGELER RECEPTION AND GUIDANCE
CENTER, WARDEN OF E C BROOKS
CORRECTIONAL FACILITY, FORMER
WARDEN OF RICHARD A. HANDLON
CORRECTIONAL FACILITY, WARDEN OF
RICHARD A. HANDLON CORRECTIONAL
FACILITY, FORMER WARDEN OF OAKS
CORRECTIONAL FACILITY, WARDEN OF
THUMB CORRECTIONAL FACILITY,
WARDEN OF CHIPPEWA CORRECTIONAL
FACILITY, WARDEN OF KINROSS
CORRECTIONAL FACILITY, WARDEN OF
NEWBERRY CORRECTIONAL FACILITY, and
WARDEN OF MICHIGAN REFORMATORY
CORRECTIONAL FACILITY,

              Defendants-Appellants.


JOHN DOES 1-10/all others similarly situated,

              Plaintiffs-Appellees,

v                                                     No. 335440
                                                -1-
                                         Washtenaw Circuit Court
DEPARTMENT OF CORRECTIONS,               LC No. 15-001006-CZ
GOVERNOR, DIRECTOR DEPARTMENT OF
CORRECTIONS, FORMER DIRECTOR
DEPARTMENT OF CORRECTIONS, DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER CHIEF DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, WARDEN OF IONIA
CORRECTIONAL FACILITY, FORMER
WARDEN OF E C BROOKS CORRECTIONAL
FACILITY, WARDEN OF GUS HARRISON
CORRECTIONAL FACILITY, FORMER
WARDEN OF RICHARD A. HANDLON
CORRECTIONAL FACILITY, FORMER
WARDEN OF CARSON CITY
CORRECTIONAL FACILITY, FORMER
WARDEN OF OAKS CORRECTIONAL
FACILITY, WARDEN OF OAKS
CORRECTIONAL FACILITY, FORMER
WARDEN OF THUMB CORRECTIONAL
FACILITY, WARDEN OF CHIPPEWA
CORRECTIONAL FACILITY, WARDEN OF
MARQUETTE CORRECTIONAL FACILITY,
WARDEN OF BELLAMY CREEK
CORRECTIONAL FACILITY, WARDEN OF
KINROSS CORRECTIONAL FACILITY,
WARDEN OF NEWBERRY CORRECTIONAL
FACILITY, FORMER WARDEN OF WOMEN’S
HURON VALLEY CORRECTIONAL
FACILITY, WARDEN OF WOMEN’S HURON
VALLEY CORRECTIONAL FACILITY,
WARDEN OF MICHIGAN REFORMATORY
CORRECTIONAL FACILITY, and WARDEN
OF SAGINAW CORRECTIONAL FACILITY,

          Defendants-Appellants.

                                   -2-
JOHN DOES 1-10/all others similarly situated,

              Plaintiffs-Appellees,

v                                                     No. 335527
                                                      Washtenaw Circuit Court
DEPARTMENT OF CORRECTIONS,                            LC No. 15-001006-CZ
GOVERNOR, DIRECTOR DEPARTMENT OF
CORRECTIONS, FORMER DIRECTOR
DEPARTMENT OF CORRECTIONS, DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER CHIEF DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, WARDEN OF IONIA
CORRECTIONAL FACILITY, FORMER
WARDEN OF E C BROOKS CORRECTIONAL
FACILITY, WARDEN OF GUS HARRISON
CORRECTIONAL FACILITY, FORMER
WARDEN OF RICHARD A. HANDLON
CORRECTIONAL FACILITY, FORMER
WARDEN OF CARSON CITY
CORRECTIONAL FACILITY, FORMER
WARDEN OF OAKS CORRECTIONAL
FACILITY, WARDEN OF OAKS
CORRECTIONAL FACILITY, FORMER
WARDEN OF THUMB CORRECTIONAL
FACILITY, WARDEN OF CHIPPEWA
CORRECTIONAL FACILITY, WARDEN OF
MARQUETTE CORRECTIONAL FACILITY,
WARDEN OF BELLAMY CREEK
CORRECTIONAL FACILITY, WARDEN OF
KINROSS CORRECTIONAL FACILITY,
WARDEN OF NEWBERRY CORRECTIONAL
FACILITY, FORMER WARDEN OF WOMEN’S
HURON VALLEY CORRECTIONAL
FACILITY, WARDEN OF WOMEN’S HURON
VALLEY CORRECTIONAL FACILITY,
                                                -3-
WARDEN OF MICHIGAN REFORMATORY
CORRECTIONAL FACILITY, and WARDEN
OF SAGINAW CORRECTIONAL FACILITY,

               Defendants-Appellants.


Before: O’CONNELL, P.J., and MURPHY and K. F. KELLY, JJ.

O’CONNELL, P.J. (dissenting).

       I respectfully dissent.

        Plaintiffs’ artfully drafted complaint seeks to hold these state defendants vicariously
liable for criminal actions of third parties while plaintiffs were incarcerated in the state prison
system. Plaintiffs’ complaint seeks to avoid governmental immunity, seeks to declare 1999 PA
202 unconstitutional, and seeks to wrest money damages from these state defendants.

        Plaintiffs’ primary complaint is that if these state officials had instituted better policies
with regard to youthful prisoners, these plaintiffs may not have been victims of crimes by
unnamed third parties while incarcerated in the prison system. The basket that plaintiffs place all
of their eggs into is Article 3 of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et
seq. But Article 3 does not place any affirmative duties on these state defendants. No Michigan
Article 3 ELCRA case has ever recognized a cause of action based upon an allegation of a
failure to discriminate. Allowing plaintiffs to use the ELCRA in this innovative manner places
an impossible burden on public service providers and is antagonistic to current state law. In
addition, plaintiffs have numerous other remedies for the respite they are seeking.

         For the reasons stated in this opinion, I would reverse the summary disposition orders of
the trial court and remand for further proceedings consistent with this opinion.

                                 I. FACTS AND NATURE OF CASE

        As a result of being convicted of serious criminal offenses, plaintiffs are incarcerated in
the state prison system. Plaintiffs’ theory of the case is that defendants’ former policy of housing
youthful offenders with non-youthful offenders resulted in plaintiffs’ abuse, harassment, or other
unlawful treatment by other prisoners or correctional staff. Plaintiffs claim that the state’s
policies, customs, and practices discriminate against youthful offenders by failing to separate
youthful offenders from adult offenders. Plaintiffs seek to hold state officials, such as the
Governor, wardens, former wardens, directors, former deputy and chief directors, and all state
officials associated with the prison system, accountable for failing to institute better policies that
may have better protected youthful offenders while serving sentences in the state prison system.
Plaintiffs cogitate that their civil rights were violated; as a result, plaintiffs speculate, or are at
least hopeful, that they may be entitled to monetary damages from these state defendants.

       Plaintiffs have alleged violations of Article 3 of the ELCRA, MCL 37.2301, which
prohibits discrimination in places of public accommodation or in the delivery of public services,
                                                 -4-
MCL 37.2302(a). Plaintiffs allege four separate violations of Article 3 of the ELCRA: (I)
creating a sexually hostile prison environment, (II) failing to prevent and remedy a sexually
hostile prison environment, (III) aiding and abetting violations of the ELCRA, and (IV) age
discrimination.

        In three separate orders, the trial court denied the state defendants’ request to dismiss this
lawsuit. This case presents three significant issues: (1) whether governmental immunity applies
to a claim brought under Article 3 of the ELCRA, (2) whether 1999 PA 202 is constitutional, and
(3) whether plaintiffs have stated a cognizable cause of action under Article 3 of the ELCRA.

   II. THE MAJORITY’S ERRONEOUS AND HISTORICALLY WRONG CONCLUSION
       THAT GOVERNMENTAL IMMUNITY IS NOT APPLICABLE TO THIS CASE

       Plaintiffs and the majority opinion theorize that Article 3 of the ELCRA operates as a
waiver of governmental immunity under the government tort liability act (GTLA), MCL
691.1401 et seq. I respectfully disagree. Nothing in the language of Article 3 of the ELCRA
provides for a waiver of governmental immunity for state officials acting in their official
capacity. Hence, state officials acting in their official capacity retain governmental immunity.

         The GTLA grants absolute immunity from tort liability to “the elective or highest
appointive executive official of all levels of government . . . if he or she is acting within the
scope of his or her . . . executive authority.” MCL 691.1407(5); Beaudrie v Henderson, 465
Mich 124, 139 n 11; 631 NW2d 308 (2001). Other state officials have immunity from tort
liability when all of the following conditions are met:

       (a) The officer [or] employee . . . is acting or reasonably believes he or she is
       acting within the scope of his or her authority.

       (b) The governmental agency is engaged in the exercise or discharge of a
       governmental function.

       (c) The officer’s [or] employee’s . . . conduct does not amount to gross negligence
       that is the proximate cause of the injury or damage. [MCL 691.1407(2).]

        To survive a motion for summary disposition based on governmental immunity, plaintiffs
must plead in avoidance of governmental immunity and “allege facts warranting the application
of an exception to governmental immunity.” Plunkett v Dep’t of Transp, 286 Mich App 168,
180; 779 NW2d 263 (2009). Plaintiffs’ complaint hypothesizes that defendants’ policies or lack
of policies caused the maltreatment of these plaintiffs. Remarkably, plaintiffs do not claim that
any of the named defendants perpetrated any of the alleged abuse or harassment. Rather, the
alleged criminal acts were committed by other prisoners or other non-parties. Even taking all of
plaintiffs’ allegations as true, see McLean v Dearborn, 302 Mich App 68, 72-73; 836 NW2d 916
(2013), plaintiffs failed to plead any facts in their complaint that Article 3 of the ELCRA waives
immunity for state officials acting in their official capacity when making policy decisions for the



                                                 -5-
State of Michigan. No such waiver exists in the ELCRA or the GTLA. The GTLA provides
immunity for the state defendants acting in their official capacity in regards to policy decisions.1
That should be the end of this issue.

        Moreover, these state actors cannot be held vicariously liable for the criminal acts of third
parties, or in a few instances, criminal acts of unnamed correctional officers who were clearly
acting outside the scope of their authority. In Hamed v Wayne Co, 490 Mich 1, 5; 803 NW2d
237 (2011), the Supreme Court addressed “whether Wayne County and its sheriff’s department
may be held vicariously liable for a civil rights claim under MCL 37.2103(i) based on a criminal
act of a deputy sheriff committed during working hours but plainly beyond the scope of his
employment.” The Supreme Court rejected liability for these state actors, explaining that
“permitting liability against defendants under these circumstances would impose too great a
burden on public-service providers and on society in general, which is clearly contrary to the
Legislature’s intent.” Id. at 30.

       In furtherance of preventing the burdensome consequences of holding state actors
vicariously liable for the acts of their employees, the Supreme Court warned against artfully
pleading a civil rights claim to bypass the GTLA:

              Artful pleading would also allow a plaintiff to avoid governmental
       immunity under the [GTLA]. A school district, for example, could not be
       vicariously liable in tort for a teacher’s sexual molestation of a student because
       the GTLA would bar the claim. However, if the plaintiff styled its claim as a
       CRA action, the school district could be vicariously liable under a theory of quid
       pro quo sexual harassment affecting public services. Plaintiff’s preferred
       approach, under which public-service providers would be strictly liable for
       precisely the same conduct as that for which they would typically be immune, is
       inherently inconsistent with the Legislature’s intent. If the Legislature had
       intended such a result, it should have clearly abrogated the common-law rule for
       purposes of the CRA. [Id. at 29 n 74.]

        Hamed clearly holds that plaintiffs cannot avoid the GTLA by simply alleging a violation
of the ELCRA. Plaintiffs, to their innovative credit, have artfully pleaded a cause of action
exactly as the Supreme Court cautioned in Hamed should not be done.

         I would also note that the GTLA, which grants immunity to state officials acting in their
official capacity, MCL 691.1407, amended in 1986, is the later statutory enactment. See Jones v
Bitner, 300 Mich App 65, 76; 832 NW2d 426 (2013). “It is a well-known principle that the
Legislature is presumed to be aware of, and thus to have considered the effect on, all existing
statutes when enacting new laws.” Walen v Dep’t of Corrections, 443 Mich 240, 248; 505


1
  Plaintiffs have sued the state defendants in both their individual capacity and in their official
capacity, but plaintiffs’ complaint does not make any allegations against the individual
defendants acting in their individual capacity.

                                                -6-
NW2d 519 (1993). “Courts cannot assume that the Legislature inadvertently omitted from one
statute the language that it placed in another statute, and then, on the basis of that assumption,
apply what is not there.” Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76
(1993). If the Legislature intended to waive the historical grant of immunity to state officials
acting in their official capacity, it is incumbent on the Legislature to expressly state that such a
waiver exists. No such waiver is found in the ELCRA or the GTLA. This Court cannot by dicta
infer such a waiver. We are required to follow the GTLA, as the later and the more specific act.

        If the aforementioned law is not sufficient, I would additionally note that the majority
opinion cites three Article 2 employment cases2 for the alleged proposition that governmental
immunity is not a defense to a civil rights action. Surprisingly, I concur with this singular,
isolated, and irrelevant statement of the law—the GTLA is not an affirmative defense to any
cause of action. See Mack v Detroit, 467 Mich 186, 200-203; 649 NW2d 47 (2002).
Accordingly, plaintiffs must plead in avoidance of the GTLA.

        I find the majority’s short and incomplete analysis of the law in regards to governmental
immunity to be disturbing. The majority opinion makes no attempt to discern if plaintiffs have
pled their case in avoidance of governmental immunity, to discern which statute is the latest in
time, or to cite any Article 3 cases that have held that governmental immunity is a defense to a
civil rights action under Article 3. Plaintiffs have not pleaded in avoidance of governmental
immunity. Therefore, the state actors acting in their official capacity retain governmental
immunity as set forth in the GTLA.

        III. THE MAJORITY’S MISGUIDED CONCLUSION THAT 1999 PA 202 IS
                             UNCONSTITUTIONAL

        The majority opinion, without any discernable statutory analysis and without any
accepted constitutional analysis, declares that the Legislature acted outside the scope of its
constitutional authority when it enacted 1999 PA 202 (the amendment). I humbly suggest that it
is the majority opinion that has acted outside the scope of its authority, not the Legislature.

                             A. HISTORY OF THIS LITIGATION

        In the words of George Santayana, “Those who cannot remember the past are condemned
to repeat it.”

       This case and its predecessors, including Neal v Dep’t of Corrections, 230 Mich App
202; 583 NW2d 249 (1998) (Neal I), and Neal v Dep’t of Corrections (On Rehearing), 232
Mich App 730; 592 NW2d 370 (1998) (Neal II), has a 20-year history. In 1998, this Court
decided Neal I, 230 Mich App at 209-215, in which a majority held that prisons were not a place
of public accommodation or a place of public service, as defined by the ELCRA, MCL
37.2301(b). On rehearing, one judge reversed her position, and the majority concluded that


2
 Article 2 of the ELCRA only pertains to employee-employer relationships. Article 2 does not
apply to this case because plaintiffs are not employees of defendants.

                                                -7-
prisons provided a public service on the basis of the statutory definition of “public service,” MCL
37.2301(b). Neal II, 232 Mich App at 735-736.3 In response to a statement in Neal II, 232
Mich App at 740, that the Legislature did not explicitly exclude prisoners from the ELCRA,
the Legislature passed the 1999 amendment to do just that. If that were not sufficient
precedent to uphold the amendment, I note that a 2000 conflict panel of this Court gave the same
advice to the Legislature in Doe v Dep’t of Corrections, 240 Mich App 199, 201; 611 NW2d 1
(2000), stating that the Legislature should draft the statute to reflect its intent that the statute does
not apply to prisoners and prisons.

        When viewed in its correct context, it is obvious that 1999 PA 202 clarified the
definition of “public service” found in MCL 37.2301(b). The amendment was not meant to
deprive any person of any rights guaranteed under our constitution; it simply amended the
definition of the term “public service.”

        Paradoxically, the Legislature did exactly as two panels of this Court advised it to do.
Today, the majority opinion rebukes the advice of two prior panels of this Court and declares
1999 PA 202 unconstitutional. Such an action by a panel of this Court is unprecedented in the
history of this Court, especially when prisons do not provide a public service as that term is
defined in Article 3 of the ELCRA.

                                   B. STANDARD OF REVIEW

         The majority opinion has set forth a constitutional barrier to the 1999 amendment and,
unsurprisingly, found the legislation unable to surmount that barrier. The majority opinion fails
to set forth a standard of review for its analysis of the 1999 amendment. Appellate courts cannot
strike down a legislative enactment on the basis of a nonexistent standard of review.

        A constitutional challenge to the validity of a statute can be brought in one of two ways,
by either a facial challenge or an as-applied challenge. “The party challenging the
constitutionality of the statute has the burden of proving the law’s invalidity.” Gillette
Commercial Operations North America & Subsidiaries v Dep’t of Treasury, 312 Mich App 394,
414-415; 878 NW2d 891 (2015) (citation and quotation marks omitted). The challenging party
must overcome a heavy burden because “[s]tatutes are presumed to be constitutional, and we
have a duty to construe a statute as constitutional unless its unconstitutionality is clearly
apparent.” Mayor of Cadillac v Blackburn, 306 Mich App 512, 516; 857 NW2d 529 (2014)
(citation and quotation marks omitted).


3
  I note that the majority opinion, in Neal II, took a wrong turn at its discussion of the decision in
Pennsylvania Dep’t of Corrections v Yeskey, 524 US 206; 118 S Ct 1952; 141 L Ed 2d 215
(1998). See Neal II, 232 Mich App at 735-736. Yeskey, 524 US at 209-210, held that the
definition of a “public entity” in the Americans with Disabilities Act of 1990 (ADA), 42 USC
12131(1)(B), applied to prisons and prisoners because it contained no exceptions excluding
prisons. The ELCRA, on the other hand, does have such an exception, including the 1999
amendment as set forth in MCL 37.2301(b), which specifically excludes prisons and prisoners.

                                                  -8-
        Plaintiffs do not address which type of challenge they bring to the 1999 amendment. At
best, plaintiffs’ allegation could be considered an as-applied challenge, meaning that the claimant
has alleged “ ‘a present infringement or denial of a specific right or of a particular injury in
process of actual execution’ of government action.” Bonner v City of Brighton, 495 Mich 209,
223 n 27; 848 NW2d 380 (2014), quoting Village of Euclid, Ohio v Amber Realty Co, 272 US
365, 395; 47 S Ct 114; 71 L Ed 303 (1926). “The practical effect of holding a statute
unconstitutional ‘as applied’ is to prevent its future application in a similar context, but not to
render it utterly inoperative.” Ada v Guam Society of Obstetricians & Gynecologists, 506 US
1011, 1012; 113 S Ct 633; 121 L Ed 2d 564 (1992) (SCALIA, J., dissenting).

                     C. TRADITIONAL CONSTITUTIONAL ANALYSIS

        “The Equal Protection Clauses of the United States and Michigan Constitutions provide
that no person shall be denied the equal protection of the law.” Electronic Data Sys Corp v Flint
Twp, 253 Mich App 538, 551; 656 NW2d 215 (2002), citing US Const, Am XIV; Const
1963, art 1, § 2. “To comply with the Equal Protection Clause . . . , defendant is required to
exercise equal treatment of similarly situated” individuals. Lear Corp v Dep’t of Treasury,
299 Mich App 533, 538; 831 NW2d 255 (2013) (citation and quotation marks omitted). If the
state has a “rational basis” for treating similarly situated individuals differently, the state action
will survive a constitutional equal protection challenge. See Lear Corp, 299 Mich App at 538-
539. The rational basis test applies only when the equal protection challenge does not allege a
claim based on a suspect classification or a fundamental right or an intermediate classification,
such as gender. Phillips v Mirac, Inc, 470 Mich 415, 432; 685 NW2d 174 (2004).

        The majority declares that 1999 PA 202 must be struck down because Const 1963, art 1,
§ 2 contains a mandate. The constitutional provision upon which the majority relies to strike
down the amendment states that the “legislature shall implement this section by appropriate
Legislation.” Const 1963, art 1, § 2 (emphasis added.) The majority opinion states, “the
legislature was constitutionally mandated to implement protections to any and all persons and
lacked authority to exclude anyone[,]” ante at 8, meaning that if any legislation treats any person
differently than any other person, that legislation must be struck down as unconstitutional.
Putting aside the question of what, if any, law would pass such a contrived test, I would simply
state that the law provides that a party challenging the facial constitutionality of an act “must
establish that no set of circumstances exists under which the [a]ct would be valid. The fact that
the [act] might operate unconstitutionally under some conceivable set of circumstances is
insufficient to render it wholly invalid[.]” United States v Salerno, 481 US 739, 745; 107 S Ct
2095; 95 L Ed 2d 697 (1987) (emphasis added).

        The primary error of the majority opinion is its adoption of plaintiffs’ assertion that
prisoners and non-prisoners are similarly situated in all aspects of this case. “Resident inmates
are obviously members of the public in a general sense[,]” but “[t]he rights of . . . inmates are
severely restricted while they are incarcerated.” Martin v Dep’t of Corrections, 424 Mich 553,
565; 384 NW2d 392 (1986) (CAVANAGH, J., dissenting). Prisoners and non-prisoners have never
been similarly situated, are not currently similarly situated, and hopefully will never be similarly
situated. That a rational basis exists for treating prisoners differently from free citizens is
obvious.

                                                 -9-
        I conclude the 1999 amendment has a rational basis for its existence. In this regard, I
concur with Judge Riordan’s opinion in Doe v Dep’t of Corrections, 312 Mich App 97, 134;
878 NW2d 293 (2015), vacated in part 499 Mich 886 (2016), that “the deterrence of meritless
lawsuits and the preservation of scarce resources through the reduction of costs associated with
resolving those lawsuits” reflects a legitimate government interest. Prisoners file an
unprecedented number of lawsuits. The cost to the state has skyrocketed. In one instance, one
prisoner has filed 5,813 lawsuits and counting. 4 The Legislature recognized that including
prisons in the definition of “public service,” MCL 37.2301(b), is problematic. Prisoners could
sue for loss of their right to vote or for the loss of their Second Amendment right to carry a gun
in prison. Therefore, there exists a rational basis for excluding prisons from the definition of
“public service” in Article 3 of the ELCRA.5

       Even assuming prisoners are in some respects similarly situated to non-prisoners, the
Legislature can make special provisions for prisoners based upon their circumstances. In this
case, plaintiffs make no allegations that certain prisoners were treated differently than other
prisoners. As long as the Legislature does not discriminate within the unique class of individuals
known as prisoners, no equal protection violation occurs.

        Equal protection is not premised on an underlying independent right to a service or
privilege; it prohibits the invidious discrimination among potential recipients of benefits or rights
after the decision has been made to establish the right. See Arnett v Kennedy, 416 US 134, 163;
94 S Ct 1633; 40 L Ed 2d 15 (1974). Even if we were to assume that the definition of “public
service” in Article 3 of the ELCRA applies to prisons and prisoners, plaintiffs’ complaint does
not allege any invidious discrimination among potential recipients of any prison services. More
importantly, it does not discriminate based upon a prisoner’s status as a prisoner, but treats all
prisoners the same and has a rational basis for its realistic goal.

                               D. LEGISLATIVE PREROGATIVE

       Our Constitution provides that “[n]o person exercising powers of one branch [of
government] shall exercise powers properly belonging to another branch . . . .” Const 1963, art
3, § 2. As I stated in my dissent in Council of Organizations & Others for Education About


4
  See https://www.usatoday.com/story/news/nation/2014/08/14/inmate-has-filed-5813-lawsuits--
and-counting/14092317/.
5
  The unintended ramifications of the majority opinion are significant. The majority opinion
allows prisoners, who are already the largest group of litigators in the state, to sue all state
officials, including prosecutors, judges, the governor and all state officials acting in their official
capacity, for ordinary decisions that these officials make each day. If a prisoner is not satisfied
with a bond determination, a sentencing decision, or a prisoner classification, a prisoner can now
sue for an Article 3 civil rights violation, and the GTLA is inapplicable. Any and all decisions
made by prosecutors, state officials, and judges will now be subject to prisoner lawsuits claiming
a violation of their civil rights, including all judicial sentencing decisions and all prosecutorial
charging decisions. The floodgates are now open.

                                                 -10-
Parochiaid v Governor, 216 Mich App 126, 135; 548 NW2d 909 (1996) (O’CONNELL, J.,
dissenting), “the judiciary has no legislative powers, and, thus, it cannot act as a ‘super
legislature’ to sit in review of the policy choices made by coordinate branches of government
acting within their respective spheres of authority.” It is the Legislature that makes the laws.
The Court’s job is to interpret the law. In my opinion, the majority has encroached on the sphere
of authority reserved to our Legislature, thereby violating the doctrine of separation of powers.

        The scope or purview of a legislative act is reserved to the Legislature. This case is
similar to Will v Mich Dep’t of State Police, 491 US 58, 71; 109 S Ct 2304; 105 L Ed 2d 45
(1989), in which the United States Supreme Court held that “neither a State nor its officials
acting in their official capacities are ‘persons’ under [42 USC] 1983.” In rejecting plaintiff’s
claim that the state and state officers were persons for the purpose of a 42 USC 1983 civil rights
action, the Supreme Court explained that the language of § 1983 did not signal clear
congressional intent to subject the states to liability. Id. at 64-65.

        In the present case, the Legislature is simply defining the scope of its own legislative
enactment. I simply repeat what the Legislature has stated in the enabling act to the 1999
amendment that prisons are not within the purview of “public service” as defined by Article 3 of
the ELCRA. See 1999 PA 202, enacting § 1. The 1999 amendment’s purpose was to define the
scope of the term “public service,” MCL 37.2301(b), consistent with the Legislature’s task to
define what “appropriate legislation” is, Const 1963, art 1, § 2. Article 3 of the ELCRA only
applies to establishments that are “open to the public[.]” See MCL 37.2303. Furthermore, MCL
37.2302 states, “[e]xcept where permitted by law,” thereby providing discretion to the
Legislature to decide the scope of Article 3. When read in context, there is nothing
unconstitutional in the language of 1999 PA 202.

        The Legislature’s intent was to state that those parts of prisons that do not deal with the
public do not fall within the purview of Article 3 of the ELCRA’s definition of “public service.”
The why is simple—that part of prisons that houses prisoners does not provide a public service
as defined in the Act. Prisoners do not perform a public service; they do not deal with the public.
Additionally, that part of prisons that houses prisoners was not intended to interact with the
public. In fact, it is just the opposite; prisoners by their own behaviors are a tremendous burden
on society. Hence, prisoners do not fall within the purview of Article 3 of the ELCRA.

        Plaintiffs claim that they are being denied the right of access to the courts. Plaintiffs cite
Furman v Georgia, 408 US 238, 290; 92 S Ct 2726; 33 L Ed 2d 346 (1972) (BRENNAN, J.,
concurring), for the proposition that prisoners retain a fundamental “right of access to the
courts.” No doubt that access to the courts is a fundamental right, but the 1999 amendment’s
purpose was to define the scope of the term “public service,” not to deny anyone access to the
courts. This lawsuit is exhibit one that plaintiffs have not been denied access to the courts.

       Because the Legislature drafted the ELCRA, it can and should clearly define the scope of
its own statutory enactment. Despite this, the majority not only usurps the prerogative that our
Constitution grants the Legislature in this context of defining the scope of the amendment but
then proceeds to strike down the Legislature’s definition of the scope of Article 3’s definition of
“public service.”

                                                -11-
      IV. PLAINTIFFS’ FAILURE TO SET FORTH A COGNIZABLE CAUSE OF ACTION
                       UNDER MICHIGAN’S CIVIL RIGHTS ACT

        This case does not require this Court to declare an act of the Legislature unconstitutional.
Courts must avoid constitutional issues if a case can be resolved on the basis of statutory
interpretation. English v Blue Cross Blue Shield of Mich, 263 Mich App 449, 455; 688 NW2d
523 (2004). I believe this case can be resolved on statutory grounds. There is no need to
interfere with the responsibilities of another branch of government.

                             A. WHAT THIS CASE IS NOT ABOUT

        Prior to addressing the substance of plaintiffs’ allegations, this Court has the
responsibility of deciding if plaintiffs’ cause of action is cognizable under Article 3 of the
ELCRA. Plaintiffs’ sophisticated complaint is similar to a Gordian knot that must be unwound
to fully understand the gravity of plaintiffs’ allegations. Before engaging in an analysis of
plaintiffs’ allegations, for clarification purposes, it may be easier to state what principles are not
involved in the present case.

        First: Plaintiffs’ complaint does not allege a constitutional tort. Our Supreme Court has
defined a constitutional tort as an allegation “that the state, by virtue of custom or policy, has
violated a right conferred by the Michigan constitution . . . .” Smith v Dep’t of Public Health,
428 Mich 540, 544; 410 NW2d 749 (1987), aff’d sub nom Will, 491 US 58. Plaintiffs do not
allege a cause of action under Michigan’s Equal Protection Clause, Const 1963, art 1, § 2. It
should also be noted that had plaintiffs filed an action under Const 1963, art 1, § 2, plaintiffs
would not be entitled to money damages. See Sharp v Lansing, 464 Mich 792, 800 n 9; 629
NW2d 873 (2001). Our Supreme Court has declined to infer a damages remedy from the Equal
Protection Clause because the authority to allow money damages for an equal protection
violation belongs to the Legislature. Lewis v Michigan, 464 Mich 781, 786-789; 629 NW2d 868
(2001).

        Second: Plaintiffs’ complaint does not allege a cause of action under the United States
Constitution’s Equal Protection Clause, US Const, Am XIV. Nor do plaintiffs allege a
constitutional claim under the Eighth Amendment of the United States Constitution. See Carlton
v Dep’t of Corrections, 215 Mich App 490, 502-504; 546 NW2d 671 (1996). Furthermore, the
state and its officials acting in their official capacity cannot be sued for monetary damages under
42 USC 1983. See Will, 491 US at 71. Also, states are immune “from suit in state and federal
courts.” Ernst v Rising, 427 F3d 351, 358 (CA6, 2005).6



6
    The Sixth Circuit neatly summarized the source and scope of sovereign immunity:
                From birth, the States and the Federal Government have possessed certain
         immunities from suit in state and federal courts. For the Federal Government,
         that immunity flows not from any one provision in the Constitution but is derived
         by implication from the nature of sovereignty itself. For the States, that immunity

                                                -12-
        Third: Plaintiffs do not allege that the state defendants committed any traditional torts.
To impose tort liability on a state official, the official must be “the proximate cause” of the
injury, “meaning the one most immediate, efficient, and direct cause preceding an injury.”
Robinson v Detroit, 462 Mich 439, 458-459; 613 NW2d 307 (2000). Plaintiffs do not allege in
their complaint that the named defendants, in their official capacity or in their individual
capacity, committed any traditional torts.

        Fourth: Plaintiffs do not allege that this case is an employment action under Article 2 of
the ELCRA. Plaintiffs’ complaint does a nice job at attempting to conflate an Article 2
employment cause of action with an Article 3 public service cause of action, but, suffice it to say,
no Michigan cases have recognized such a conflated cause of action. The fact that prisons are a
hostile environment, or as plaintiffs state, a sexually hostile prison environment, has never been
recognized as an Article 3 cause of action in a published case.

        Fifth: Plaintiffs do not allege that the ELCRA is co-extensive with Michigan’s equal
protection clause. The ELCRA is best described as a codification of the equal protection clause
but “broadened to include categories not covered under the constitution, such as age, sex and
marital status.” Neal II, 232 Mich App at 739.7 For this reason, the trial court’s and plaintiffs’
citation to Mason v Granholm, unpublished opinion of the United States District Court for the
Eastern District of Michigan, issued January 23, 2007 (Docket No. 05-73943), is misguided.
Mason’s other conclusion “that the 1999 amendment was not curative” is also wrong. The
amendment’s enabling act explicitly provides, in plain English, that the 1999 amendment “is
curative and intended to correct any misinterpretation of legislative intent in the court of appeals
decision [Neal II,]” 1999 PA 202, enacting § 1. The enabling act stated the Legislature’s
“original intent . . . that an individual serving a sentence of imprisonment in a state or county
correctional facility is not within the purview of this act.” Id. Ironically, if they were co-
extensive, plaintiffs may not be entitled to monetary damages.

     But, if plaintiffs can artfully allege a valid public service claim under Article 3 of the
ELCRA, they would be entitled to monetary damages. See Hamed, 490 Mich at 29 n 74. At




       flows from the nature of sovereignty itself as well as the Tenth and Eleventh
       Amendments to the United States Constitution. The States’ immunity from suits
       in federal court applies to claims against a State by citizens of the same State as
       well as to claims against a State by citizens of another State. The immunity also
       applies to actions against state officials sued in their official capacity for money
       damages. [Ernst, 427 F3d at 358 (citations and quotation marks omitted).]
7
 Although Neal II stated that the ELCRA was co-extensive with Michigan’s Equal Protection
Clause, Neal II quickly corrected itself to describe ELCRA as a codification of the Equal
Protection clause but broadened to include classifications not included in the Constitution. See
Neal II, 232 Mich App at 739.

                                               -13-
issue in this case is whether such a cause of action exists under Michigan law and whether
plaintiffs’ complaint has set forth such a cause of action.8

                     B. SEXUALLY HOSTILE PRISON ENVIRONMENT

       In their complaint, plaintiffs allege that defendants’ “acts and omissions constitute sexual
harassment and violate Plaintiffs’ rights under the ELCRA[.]” The ELCRA’s definition of
sexual harassment underscores a fatal flaw with plaintiffs’ case. The ELCRA defines sexual
harassment as follows:

              Discrimination because of sex includes sexual harassment. Sexual
       harassment means unwelcome sexual advances, requests for sexual favors, and
       other verbal or physical conduct or communication of a sexual nature under the
       following conditions:

              (i) Submission to the conduct or communication is made a term or
       condition either explicitly or implicitly to obtain employment, public
       accommodations or public services, education, or housing.

               (ii) Submission to or rejection of the conduct or communication by an
       individual is used as a factor in decisions affecting the individual’s employment,
       public accommodations or public services, education, or housing.

              (iii) The conduct or communication has the purpose or effect of
       substantially interfering with an individual’s employment, public
       accommodations or public services, education, or housing, or creating an
       intimidating, hostile, or offensive employment, public accommodations, public
       services, educational, or housing environment. [MCL 37.2103(i).]

        Nothing in plaintiffs’ complaint alleges, either explicitly or implicitly, that a term or
condition of plaintiffs’ receipt of public services is submission to conduct or communication of


8
  In this regard, plaintiffs’ attorneys are a creative lot. They are attempting to create causes of
action that have never previously existed or been recognized by existing law. In my opinion,
courts should act as gatekeepers and scrutinize these complaints to determine if the alleged
(manufactured) constitutional torts (civil rights torts) have any basis in law or fact or if they are
subsumed by statutory claims. See Mays v Governor, ___ Mich App ___; ___ NW2d ___ (2018)
(Docket Nos. 335555, 335725, 335726), and Boler v Earley, 865 F3d 391 (CA6, 2017).
        In the present case, alleging that prisons are a “sexually hostile prison environment” as a
basis for a cause of action against state officials is nonsensical. Prisons house murderers, rapists,
pedophiles, and individuals who have established that they cannot conform to society’s
minimum standards of behavior or accountability. Plaintiffs suggest that we reward all prisoners
for their involuntary participation in “a sexually hostile prison environment.” No amount of
governmental oversight can change prisons into a nonhostile environment.

                                                -14-
a sexual nature. In addition, plaintiffs’ complaint fails to allege that these state defendants
committed any “unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct or communication of a sexual nature” in the provision of public services.

       Moreover, the vast majority of hostile environment civil rights act cases involve
employment cases under Article 2 of the ELCRA. Plaintiffs have not cited a published hostile
environment case that involves a prison setting as it relates to the term “public services” as
found in Article 3 of the ELCRA. No such case exists. I conclude that no reason exists to
extend hostile environment cases beyond employment cases. For that reason alone, plaintiffs’
complaint fails to state a hostile environment cause of action under Article 3 of the ELCRA.

        If plaintiffs are correct, then every single prisoner in the State of Michigan can sue the
state for being placed in a sexually hostile prison environment. I for one will not be the first
judge to extend the hostile environment line of cases to state prisons. That is a public policy
question best left to the Legislature or the Supreme Court.

                                   C. AGE DISCRIMINATION

        Plaintiffs allege that the state’s customs and policies discriminated against youthful
offenders, but, when read in context, plaintiffs’ actual complaint is that the state defendants
should have treated youthful offenders differently than non-youthful offenders. The difficulty
with such a cause of action is that Article 3 of the ELCRA does not impose any affirmative
duties upon these state defendants to draft new policies. The only duty imposed by Article 3 is
that the state shall not discriminate when delivering public services. Plaintiffs’ complaint is
devoid of any allegations that the state or its officials affirmatively discriminated against these
youthful offenders when delivering a public service. In short, plaintiffs want this Court to
recognize an Article 3 cause of action for failing to treat prisoners differently.

         Defendants cannot be liable under Article 3 of the ELCRA just because there may be a
better way to achieve a goal or a better way to run a prison. No Michigan case law and no
statutory language support the concept that failure to institute different policies, customs, or
practices can provide a basis for imposing liability on a governmental agenc y. See
Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 181-184; 615 NW2d 702 (2000) (holding that
the “highway exception” to governmental immunity does not impose a duty on the state or county
road commissions “to install additional traffic signs or signals that might conceivably have made
the intersection safer”). While, as in this case, a decision to adopt new policies, customs, or
practices may be prudent and advisable, those decisions are best left to the executive or
legislative branch. Article 3 of the ELCRA does not provide a cause of action for such a claim.
These state defendants did not deny these plaintiffs a public service on the basis of plaintiffs’ age
or other suspect classification or as a term or condition of getting a specific public service.

                                     D. OTHER REMEDIES

        It is important to note that plaintiffs are not left without a remedy if this Court determines
that plaintiffs’ claims do not fall within the scope of Article 3 of the ELCRA. Youthful
offenders and other prisoners have remedies under statutory enactments and other provisions of
the Michigan Constitution, including the Equal Protection Clause, 1963 Const, art 1, § 2. The
                                                -15-
Equal Protection Clause does not carry a damages remedy, however, because the authority to
allow money damages for an equal protection violation belongs to the Legislature.

        To be candid, the hidden issue in this case is monetary damages. Plaintiffs have filed a
claim in federal court, in part, alleging violations of 42 USC 1983. Plaintiffs’ attorney admits
that “monetary damages” are not available in federal court because “federal rules bar the
collection of damages from the state or state agencies.” Hence, plaintiffs have filed a duplicate
action in state court alleging a violation of Article 3 of the ELCRA. 9 Plaintiffs’ only avenue to
collect monetary damages against the state or state agencies is to awkwardly attempt to fit their
claim into an ELCRA action, but plaintiffs’ cause of action does not fit into the scriptures of an
Article 3 civil rights violation.

        Plaintiffs allege egregious acts perpetrated against them by third parties that, if true, are
significant and deserve remediation under the law. However, the remedy is not for this
Court, based upon a visceral response, to reengineer the law to discard governmental
immunity for state actors or to conclude that prisoners and non-prisoners are similarly
situated for purposes of an equal protection argument.

                                        V. CONCLUSION

        In essence, plaintiffs seek money damages against the state for failing to institute better
safeguards in prison. But plaintiffs have not pleaded in avoidance of governmental immunity.
Furthermore, this case can be decided on statutory grounds. There is no need to declare 1999 PA
202 unconstitutional. Even if I were to decide this case on constitutional grounds, plaintiffs make
no claim that they were treated differently than a similarly situated class of prisoners. Prisoners
and non-prisoners are not members of the same class for purposes of this lawsuit. Plaintiffs’
actual claim is that the state should have discriminated in favor of youthful offenders. That
claim is a policy decision for the executive branch or the legislative branch to resolve.
Because of the separation of powers doctrine, courts should not be involved in the day-to-
day operation of the duties or responsibilities of other branches of government.10




9
   See http://www.bridgemi.com/children-families/are-teen-prison-rapes-violation-civil-rights-
michigan-court-about-decide.
10
   When the ELCRA was drafted by the Legislature in 1977, its central purpose was to define the
term civil rights as it is applicable to the public. As such, the ELCRA sets the parameters and
guidelines for eligible civil rights claims that were not originally included in the Michigan
Constitution.
In 1977, and again in 1999, the Legislature decided that prisons and prisoners are not within the
scope of Article 3 causes of action. It must be emphasized that prisoners are not entitled to the
same freedoms as non-prisoners. I doubt if any prisoner would refer to his jail cell as a “public
accommodation” in the same manner that a non-incarcerated individual refers to a stay at a
Holiday Inn, or that any prisoner would claim that a prison is performing a public service by

                                                -16-
       The truth of the matter is that prisons are a dangerous place. No matter what rules,
customs, practices or policies are instituted in state prisons, the state cannot prevent all misdeeds
by perpetrators of criminal behavior. The majority’s desire to cure all wrongs by eviscerating the
doctrine of governmental immunity, while well-intentioned, is fraught with the law of
unintended consequences. Depriving governmental officials of governmental immunity when
making policy decisions, when making sentencing decisions, and when running the government,
would certainly cause most of us to rethink the traditional notion of public service.

      For the reasons stated in this opinion, I would reverse the decision of the trial court and
remand this case for further proceedings consistent with this opinion.

                                                              /s/ Peter D. O’Connell




involuntary incarcerating him. I simply note it is the Legislature that has the responsibility to
define the scope of the ELCRA.
Plaintiffs can still bring a cause of action under Articles 1, 2, 4, 5, and 6 of the ELCRA.
Plaintiffs are not being denied their civil right, as they claim, to bring a cause of action under the
ELCRA. The issue in this case is very narrow. Simply stated, prisons and prisoners do not
provide a public service as that term is defined by the Legislature in Article 3 of the ELCRA.

                                                -17-
