                         STATE OF MICHIGAN

                          COURT OF APPEALS



JOHN DOES 1-7, and all others similarly situated,                FOR PUBLICATION
                                                                 August 25, 2015
              Plaintiffs-Appellees,                              9:05 a.m.

v                                                                Nos. 321013; 321756
                                                                 Washtenaw Circuit Court
DEPARTMENT OF CORRECTIONS,                                       LC No. 13-001196-CZ
GOVERNOR, DEPARTMENT OF
CORRECTIONS DIRECTOR, CORRECTIONAL
FACILITIES ADMINISTRATION DEPUTY
DIRECTOR, CORRECTIONAL FACILITIES
ADMINISTRATION DEPUTY DIRECTOR
RETIRED, CORRECTIONAL FACILITIES
ADMINISTRATION CHIEF DEPUTY
DIRECTOR, CARSON CITY CORRECTIONAL
FACILITY WARDEN, GUS HARRISON
CORRECTIONAL FACILITY WARDEN,
RICHARD A. HANDLON CORRECTIONAL
FACILITY WARDEN, OAKS CORRECTIONAL
FACILITY WARDEN, THUMB
CORRECTIONAL FACILITY WARDEN,
CHIPPEWA CORRECTIONAL FACILITY
WARDEN, MARQUETTE BRANCH PRISON
WARDEN, BELLAMY CREEK
CORRECTIONAL FACILITY WARDEN,
CHARLES EGELER RECEPTION &
GUIDANCE CENTER WARDEN, E.C. BROOKS
CORRECTIONAL FACILITY WARDEN,

              Defendants-Appellants.


Before: RIORDAN, P.J., and DONOFRIO and BECKERING, JJ.

RIORDAN, J.

        Defendants, various government entities including the Department of Corrections and the
Governor, originally appealed by leave the trial court orders denying their motions for summary
disposition in this action initiated by plaintiffs, who are male prisoners.


                                              -1-
        In Docket No. 321013, defendants appealed the trial court order denying their motion for
summary disposition based on plaintiffs’ failure to comply with the Prison Litigation Reform Act
(PLRA), MCL 600.5501 et seq. In Docket No. 321756, defendants appealed the trial court order
denying their motion for summary disposition based on the prisoners’ substantive discrimination
claims.

        This Court initially denied defendants’ applications for leave to appeal. The Supreme
Court, in lieu of granting leave to appeal, remanded the case back to this Court for consideration
as leave granted. Doe v Dep’t of Corrections, __ Mich __; 854 NW2d 717 (2014). Now having
reviewed the issues raised on appeal, we reverse and remand for proceedings consistent with this
opinion.

                                       I. BACKGROUND

       Plaintiffs are seven, unidentified males who became imprisoned while under the age of
18, in Department of Corrections (DOC) facilities. Plaintiffs bring suit under the Elliott-Larsen
Civil Rights Act (ELCRA), MCL 37.2101 et seq., claiming that they had been subject to sexual
violence and harassment by adult male prisoners and female prison guards.

        Defendants eventually moved for summary disposition on several grounds. First, they
contend that plaintiffs failed to comply with MCL 600.5507(2), a provision of the PLRA
requiring that a prisoner filing a lawsuit concerning prison conditions disclose the number of
civil actions and appeals the prisoner previously initiated. Defendants alleged that plaintiffs’
disclosure was insufficient. Defendants further argued that, because MCL 600.5507(3) provides
that a court “shall” dismiss any action if the prisoner fails to comply with subsection (2),
plaintiffs’ complaint had to be dismissed without prejudice. MCR 2.116(C)(4). Plaintiffs
countered that MCL 600.5507 only applied to complaints filed on behalf of indigent prisoners,
which did not include the prisoners in this case. The trial court ultimately denied defendants’
motion for summary disposition.

        Defendants also moved for summary disposition under MCR 2.116(C)(8), contending
that plaintiffs failed to state a claim upon which relief can be granted because the plain language
of the ELCRA, as amended, provides that a “public service” does not include a state or county
correctional facility with respect to prisoners. Defendants further argued that the amendment did
not violate equal protections. Plaintiffs vigorously disputed this point, arguing that the
amendment was unconstitutional because it violated plaintiffs’ rights to equal protection, with no
legitimate justification. They also highlighted that a federal district court case had found the
amendment to be unconstitutional, and that decision was binding on the court.

        The crux of plaintiffs’ equal protection argument at this juncture is not based on the
allegation that their fundamental right to be free from sexual assault is being violated. Rather,
plaintiffs’ contention is that the ELCRA violates their right to equal protection because it
prohibits them from filing a lawsuit based on their status as prisoners, regardless of the type of
claim they seek to assert.

      The trial court ultimately denied defendants’ motion for summary disposition. It ruled
that MCL 37.2301(b), which excluded prisons as places of public services under the ELCRA,

                                                -2-
was unconstitutional because it violated the equal protection clauses of the Michigan and United
States Constitutions. Defendants now appeal in both dockets.

                                   II. STANDARDS OF REVIEW

        “The interpretation and application of statutes is a question of law that we review de
novo.” Ewin v Burnham, 272 Mich App 253, 255; 728 NW2d 463 (2006).1 We also review
constitutional issues de novo. Mahaffey v Attorney Gen, 222 Mich App 325, 334; 564 NW2d
104 (1997). “Statutes 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) (quotation marks and citation
omitted). Additionally, we review issues concerning the application of collateral estoppel de
novo. Barrow v Pritchard, 235 Mich App 478, 480; 597 NW2d 853 (1999).

                             III. PRISON LITIGATION REFORM ACT

                                         A. DISCLOSURE

        The PLRA “sets forth certain requirements that apply when a prisoner brings a civil
action concerning prison conditions.” Anderson v Myers, 268 Mich App 713, 715; 709 NW2d
171 (2005) (quotation marks omitted). A “prisoner” is defined as “a person subject to
incarceration, detention, or admission to a prison who is accused of, convicted of, sentenced for,
or adjudicated delinquent for violations of state or local law . . . .” MCL 600.5531(e). A “civil
action concerning prison conditions” is defined as “any civil proceeding seeking damages or
equitable relief arising with respect to any conditions of confinement or the effects of an act or
omission of government officials, employees, or agents in the performance of their duties . . . .”
MCL 600.5531(a). Plaintiffs do not dispute that each one of them is a “prisoner” and that the
present case is a “civil action concerning prison conditions.” Nor do the parties dispute that
plaintiffs are not indigent.

          MCL 600.5507, the provision in dispute, provides:

                 (1) A prisoner shall not claim indigency under [MCL 600.29632] in a civil
          action concerning prison conditions or an appeal of a judgment in a civil action
          concerning prison conditions or be allowed legal representation by an attorney
          who is directly or indirectly compensated for his or her services in whole or in
          part by state funds if the prisoner has, on 3 or more prior occasions, while
          incarcerated or detained in any prison, brought an action or appeal in a court of


1
  To the extent that the parties did not raise the issue of plaintiffs’ actual compliance with MCL
600.5507(2), we address this issue as all the facts necessary for a decision regarding this section
are before us and resolving the issue primarily is a question of law. Nuculovic v Hill, 287 Mich
App 58, 63; 783 NW2d 124 (2010). The same is true of the trial court’s failure to fully articulate
its finding regarding whether it was bound by a federal district court opinion.
2
    MCL 600.2963 deals more specifically with prisoners initiating civil suits.


                                                  -3-
       this state that was dismissed on the grounds that it was frivolous, unless the
       prisoner has suffered serious physical injury or is under imminent danger of
       suffering serious physical injury or has suffered or is under imminent danger of
       suffering conduct prohibited under . . . MCL 750.520b, 750.520c, 750.520d,
       750.520e, and 750.520g.

              (2) A prisoner who brings a civil action or appeals a judgment concerning
       prison conditions shall, upon commencement of the action or initiation of the
       appeal, disclose the number of civil actions and appeals that the prisoner has
       previously initiated.

               (3) The court shall dismiss a civil action or appeal at any time, regardless
       of any filing fee that may have been paid, if the court finds any of the following:

                (a) The prisoner’s claim of injury or of imminent danger under subsection
       (1) is false.

              (b) The prisoner fails to comply with the disclosure requirements of
       subsection (2).

        The primary goal of statutory interpretation is to ascertain and give effect to the intent of
the Legislature. Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 217; 801
NW2d 35 (2011). “The first criterion in determining intent is the language of the statute. If the
statutory language is clear and unambiguous, judicial construction is neither required nor
permitted, and courts must apply the statute as written.” Tevis v Amex Assurance Co, 283 Mich
App 76, 81; 770 NW2d 16 (2009). “Courts may not speculate regarding legislative intent
beyond the words expressed in a statute. . . . Unless defined in the statute, every word or phrase
should be accorded its plain and ordinary meaning, taking into account the context in which the
words are used.” Chico-Polo v Dep’t of Corrections, 299 Mich App 193, 198; 829 NW2d 314
(2013) (quotation marks and citation omitted). We also presume every word in a statute has
meaning, and avoid construing the statute in a way that would render any part surplusage or
nugatory. Griswold Props, LLC v Lexington Ins Co, 276 Mich App 551, 565; 741 NW2d 549
(2007). Furthermore, “[a] provision in a statute is ambiguous only if it irreconcilably conflicts
with another provision, or when it is equally susceptible to more than a single meaning.” Alvan
Motor Freight, Inc v Dep’t of Treasury, 281 Mich App 35, 39-40; 761 NW2d 269 (2008)
(quotation marks and citation omitted; emphasis in original)

       When filing this action, plaintiffs disclosed the following in their complaint:

               A civil action between these parties or other parties arising out of the
       transaction or occurrence alleged in the complaint has been previously filed in this
       court, where it was given docket number 13-1049-CZ and was assigned to Judge
       Kuhnke. The action is no longer pending.

               In addition, a civil action between these parties or other parties arising out
       of the transaction or occurrence alleged in the complaint has been previously filed
       in the Eastern District of Michigan and was assigned to Judge Cleland. The
       action remains pending.
                                                -4-
        There are several deficiencies in plaintiffs’ disclosures. First, subsection (2) requires a
prisoner to “disclose the number of civil actions and appeals that the prisoner has previously
initiated.” (Emphasis added). The language in plaintiffs’ complaint is that there were civil
actions “between these parties or other parties arising out of the transaction or occurrence
alleged in the complaint.”3 This disclosure is ambiguous regarding the identities of the parties in
the previous litigation, and leaves to speculation whether it was “the prisoner[s]” from this case
as a full group, partial group, or individually.

        Second, subsection (2) requires disclosure of “the number of civil actions and appeals
that the prisoner has previously initiated.” (Emphasis added). Even assuming that plaintiffs
initiated the two previously filed civil actions, their disclosure did not indicate whether those
were the only civil actions and appeals they previously initiated as a group or individually.
Instead, they disclosed only two previously filed actions “arising out of the transaction or
occurrence alleged in the complaint.” Yet, the plain language of subsection (2) requires that a
prisoner “shall . . . disclose the number of civil actions and appeals that the prisoner has
previously initiated.” MCL 600.5507(2). There is no limiting language that prisoners only
should disclose civil actions arising out of the transaction at issue in the present complaint. Here,
plaintiffs’ disclosure left open the possibility that any of the plaintiffs initiated civil actions or
appeals concerning prison conditions that did not arise out of the transaction or occurrence
alleged in the complaint. Further, “[t]he statute does not predicate the disclosure requirement
upon the prisoner having, in fact, previously filed civil actions or appeals.” Tomzek v Dep’t of
Corrections, 258 Mich App 222, 224; 672 NW2d 511 (2003). So, even if plaintiffs had not
initiated any other civil suits, the deficiency in a disclosure statement would not be cured.

        Accordingly, we reject any contention that plaintiffs’ complaint complied with subsection
(2) of MCL 600.5507

                                         B. INDIGENCY

       We now turn to plaintiffs’ argument under the PLRA, namely, that subsection (2) does
not apply to nonindigent prisoners. We find that it does.

        Subsection (2) provides, “A prisoner who brings a civil action . . . concerning prison
conditions shall . . . disclose the number of civil actions . . . that the prisoner has previously
initiated.” (Emphasis added). The words “the” and “a” have different meanings. Massey v
Mandell, 462 Mich 375, 382 n 5; 614 NW2d 70 (2000). “ ‘The’ is defined as ‘definite article. 1.
(used, [especially] before a noun, with a specifying or particularizing effect, as opposed to the
indefinite or generalizing force of the indefinite article a or an).’ ” Robinson v Lansing, 486
Mich 1, 14; 782 NW2d 171 (2010) (citation omitted).

        Subsection (2) employs the word “a” to describe the class of prisoners who must disclose
the number of civil actions previously filed. As defined supra, “a” has no specifying or
particularizing effect. Thus, the plain language of subsection (2) indicates that it applies to


3
    Ostensibly, this was an attempt to comply with MCR 2.113(C)(2).


                                                 -5-
prisoners, without limitation to indigent prisoners. Indeed, plaintiffs acknowledge that
subsection (2) does not expressly limit the requirement to indigent prisoners. Because the statute
is unambiguous, we are mindful that nothing may be read into the statute. Tevis, 283 Mich App
at 81.

        Nevertheless, as plaintiffs point out, it is true that a statutory provision cannot be read in
isolation. Robinson, 486 Mich at 15. See Hines v Volkswagen of America, Inc, 265 Mich App
432, 438; 695 NW2d 84 (2005) (“Although a phrase or a statement may mean one thing when
read in isolation, it may mean something substantially different when read in context.”).
However, the remaining language of MCL 600.5507 does not indicate that subsection (2) applies
only to indigent prisoners.4

       Subsection (1) pertains to the limitation for when a prisoner may claim indigency in a
civil action under MCL 600.2963.5 However, the legislature employed no language in
subsections (2) or (3) limiting the class of prisoners to those who are indigent, or to those listed
in subsection (1). Plaintiffs urge this Court to look at legislative history and the catch line
provision in the statute, which states, “Claim of indigency in civil actions concerning prison
conditions, prohibitions.” “However, the catch line of a statute is not part of the statute itself,
and should not be used to construe the section more broadly or narrowly than the text of the
section would indicate.” People v Mitchell, 301 Mich App 282, 292; 835 NW2d 615 (2013).
MCL 8.4b provides:

                  The catch line heading of any section of the statutes that follows the act
          section number shall in no way be deemed to be a part of the section or the
          statute, or be used to construe the section more broadly or narrowly than the text
          of the section would indicate, but shall be deemed to be inserted for purposes of
          convenience to persons using publications of the statutes.

         We also decline to rely upon legislative history. Legislative intent is discerned from the
words of the statute itself as that is what was enacted into law. Chico-Polo, 299 Mich App at
198. Furthermore, our interpretation of the statute “ensures that it works in harmony with the
entire statutory scheme.” Potter v McLeary, 484 Mich 397, 411; 774 NW2d 1 (2009); Bush v
Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009); Slater v Ann Arbor Pub Sch Bd of Ed,
250 Mich App 419, 429; 648 NW2d 205 (2002). Our interpretation is consistent with the
underlying purpose of the PLRA, which is to manage the overall number of suits prisoners
initiate. See, e.g., MCL 600.5503(1) (prohibiting a prisoner from filing an action concerning
prison conditions unless the prisoner has exhausted all available administrative remedies); MCL
600.5503(3) (prohibiting courts from appointing counsel paid for in whole or in part at taxpayer
expense to a prisoner for the purpose of filing an action concerning prison conditions); MCL


4
  Although plaintiffs attempt to draw an inference from federal law, namely 28 USC 1915,
regarding proceedings in forma pauperis, nothing in that statute is similar to MCL 600.5507(2)
and the language regarding disclosure.
5
    MCL 600.2963 deals more specifically with prisoners filing civil actions.


                                                 -6-
600.5505(1) and (2) (stating that MCL 600.2963 applies to civil actions concerning prison
conditions and requiring courts to dismiss a case at any time for several reasons); MCL 600.5509
(stating that a court shall review as soon as practical a civil action in which a prisoner seeks
redress from a government entity and requiring the court to dismiss the action if the complaint is
frivolous or seeks monetary relief from a defendant who is immune from the requested relief).

         Plaintiffs, however, advance an alternate interpretation of the statute. As discussed,
subsection (1) generally prohibits a prisoner from claiming indigency under MCL 600.2963 if
the prisoner has, on three or more occasions, while incarcerated or detained in any prison,
brought an action that was dismissed because it was frivolous. Plaintiffs contend that subsection
(2) is the mechanism for determining whether a prisoner has brought three or more civil actions
that have been dismissed as frivolous, thereby preventing them from claiming indigency under
subsection (1).

       Yet, plaintiffs fail to reference MCL 600.5529, which provides:

              (1) The state court administrative office shall compile and maintain a list
       of the civil actions concerning prison conditions brought by a prisoner that are
       dismissed as frivolous. The list shall include an account of the amount of unpaid
       fees and costs associated with each dismissed case. The list shall be made
       available to the courts of this state for the purpose of ascertaining the existence
       and number of civil actions concerning prison conditions filed by each prisoner,
       and any associated unpaid fees and costs, for the purposes described in this
       chapter.

               (2) A court in which a civil action concerning prison conditions is brought
       shall refer to the list described in subsection (1) to determine the number and
       existence of civil actions concerning prison conditions previously filed by a
       prisoner and any associated unpaid fees and costs. [Emphasis added.]

        Thus, pursuant to MCL 600.5529, a court determines whether claims have been
dismissed because of frivolity by consulting the list the State Court Administrative Office
compiles and maintains. The court does not perform this function based on a prisoner’s
disclosures under subsection (2). In fact, subsection (2) does not require a prisoner to disclose
how many of the civil actions and appeals were dismissed because they were frivolous. Rather,
it only requires a prisoner to “disclose the number of civil actions and appeals that the prisoner
has previously initiated.” Because the disclosure required by subsection (2) is not limited to
previous civil actions and appeals that were dismissed as frivolous, plaintiffs’ argument fails.

       Plaintiffs also rely on the rule of statutory construction known as the “absurd-results
rule.” See Detroit Intern Bridge Co v Commodities Export Co, 279 Mich App 662, 674; 760
NW2d 565 (2008). Under this rule, “a statute should be construed to avoid absurd results that
are manifestly inconsistent with legislative intent.” Id. (quotation marks and citation omitted).
In other words, “a statute need not be applied literally if no reasonable lawmaker could have
conceived of the ensuing result.” Id. at 675. Plaintiffs assert that absent a relationship between
subsections (1) and (2), the disclosure required by subsection (2) serves no purpose. However,
the premise of plaintiffs’ argument is that the disclosure requirement in subsection (2) serves the

                                                -7-
purpose of determining whether a prisoner may claim indigency. Yet, as explained supra,
plaintiffs are not required to disclose how many of the previous cases were dismissed based on
frivolity. Therefore, we reject plaintiffs’ argument based on the absurd-results rule.

        Furthermore, “[t]he wisdom of a statute is for the determination of the Legislature and the
law must be enforced as written.” Gilliam v Hi-Temp Prod Inc, 260 Mich App 98, 109; 677
NW2d 856 (2003). “The fact that a statute appears to be impolitic, unwise, or unfair is not
sufficient to permit judicial construction.” Id.

        Thus, we conclude that the disclosure requirement in MCL 600.5507(2) unambiguously
applies to all prisoners, not only those claiming indigency.

                                          C. REMEDY

       Alternatively, plaintiffs contend that the proper remedy for noncompliance with the
disclosure requirements is a remand to permit them to amend the complaint, rather than
dismissal. We disagree.

         Pursuant to MCL 600.5507(3)(b), “The court shall dismiss a civil action or appeal at any
time, regardless of any filing fee that may have been paid, if the court finds” that the “prisoner
fails to comply with the disclosure requirements of subsection (2).” Despite this clear directive,
plaintiffs contend that they should have been permitted to amend their compliant. See MCR
2.118(A)(2) (“Except as provided in subrule (A)(1), a party may amend a pleading only by leave
of the court or by written consent of the adverse party. Leave shall be freely given when justice
so requires.”). Defendants, however, posit that subsection (3) precludes amendment of the
complaint because that statute provides that the court shall dismiss a civil action if the prisoner
fails to comply with subsection (2) of the statute.

        The phrase “shall” is unambiguous and denotes “a mandatory, rather than discretionary
action.” Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 65; 642 NW2d 663 (2002). Consistent
with the plain language of the statute, in Tomzek v Dep’t of Corrections, 258 Mich App 222, 223;
672 NW2d 511 (2003), we found “that the statutory language mandates dismissal of the appeal,
without regard to how or when the issue was raised.” We also recognized the failure to disclose
the number of previous civil actions or appeals was fatal, even if that number is zero. Id. at 224-
225. Likewise, in Komejan v Dep’t of Corrections, 270 Mich App 398, 399-400; 715 NW2d 375
(2006), we held as follows:

               If a prisoner fails to disclose the number of previous suits, the statute
       explicitly instructs the court to dismiss the action. MCL 600.5507(3)(b). Plaintiff
       did not disclose the number of civil actions relating to prison conditions that he
       had previously pursued, so the trial court should have dismissed this suit. The
       fact that plaintiff had never pursued a civil action before does not excuse his lack
       of disclosure because a prisoner is obligated to disclose the number of civil
       actions and appeals he had previously initiated, even when that number is zero.
       Plaintiff's failure to disclose the number of previous civil actions he commenced
       mandates the dismissal of this case. [Quotation marks and citation omitted.]



                                                -8-
       Relying on federal case law, plaintiffs claim they should be given the opportunity to
amend the complaint. However, federal decisions are not binding on this Court. State Treasurer
v Sprague, 284 Mich App 235, 241; 772 NW2d 452 (2009). Nevertheless, plaintiffs cite to MCL
600.2301, which provides:

               The court in which any action or proceeding is pending, has power to
       amend any process, pleading or proceeding in such action or proceeding, either in
       form or substance, for the furtherance of justice, on such terms as are just, at any
       time before judgment rendered therein. The court at every stage of the action or
       proceeding shall disregard any error or defect in the proceedings which do not
       affect the substantial rights of the parties.

The applicability of MCL 600.2301 rests on a two-pronged test: (1) whether a substantial right
of a party is implicated; and (2) whether a cure is in furtherance of justice. Bush, 484 Mich at
177. Plaintiffs make no argument regarding either prong of this test. Ypsilanti Charter Twp v
Kircher, 281 Mich App 251, 287; 761 NW2d 761 (2008) (A party’s “failure to properly address
the merits of his assertion of error constitutes an abandonment of this issue on appeal.”).

        Furthermore, plaintiffs’ contention is contrary to a cardinal rule of statutory
interpretation: “If the language employed by the Legislature is unambiguous, the Legislature is
presumed to have intended the meaning clearly expressed, and this Court must enforce the
statute as written.” Ameritech Pub, Inc v Dep’t of Treasury, 281 Mich App 132, 136; 761 NW2d
470 (2008). The language of MCL 600.5507(3) is unambiguous. Consistent with our prior,
published caselaw, we apply the statute as written and find that dismissal is mandated.

        Because a plaintiff would be precluded by statute from going forward with this lawsuit,
ordinarily we would need not address plaintiffs’ additional claims. But, because it is not clear
whether any of the John Doe plaintiffs would be free, individually, in the future to bring the
claims they now allege under the ELCRA and equal protections, we will consider them here.
Further, the Michigan Supreme Court specifically remanded this case for consideration of the
issues raised on leave granted. Doe v Dep’t of Corrections, __ Mich at __; 854 NW2d 717
(2014).

                        IV. ELLIOTT-LARSEN CIVIL RIGHTS ACT

                                  A. BACKGROUND LAW

        Defendants contend that the trial court erred in denying their second motion for summary
disposition regarding plaintiffs’ substantive claims based on the ELCRA. Primarily, defendants
argue that the amendment to the ELCRA, which excluded prisoner lawsuits, is not a violation of
equal protections.

       The ELCRA provides:

              The opportunity to obtain employment, housing and other real estate, and
       the full and equal utilization of public accommodations, public service, and
       educational facilities without discrimination because of religion, race, color,
       national origin, age, sex, height, weight, familial status, or marital status as

                                               -9-
          prohibited by this act, is recognized and declared to be a civil right. [MCL
          37.2102(1).]

The statute further provides that “[e]xcept where permitted by law, a person shall not . . . Deny
an individual the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of a place of public accommodation or public service because of
religion, race, color, national origin, age, sex, or marital status.” MCL 37.2302(a).

       In Neal v Dep’t of Corrections (On Rehearing), 232 Mich App 730, 735-737; 592 NW2d
370 (1998), we held that prisons are places of “public service” under the ELCRA, so that
discrimination against inmates is prohibited. However, the Legislature then passed 1999 PA
202,6 which amended the definition of “public service” in the ELCRA. “Public service” now is
defined as:

                 (b) “Public service” means a public facility, department, agency, board, or
          commission, owned, operated, or managed by or on behalf of the state, a political
          subdivision, or an agency thereof or a tax exempt private agency established to
          provide service to the public, except that public service does not include a state or
          county correctional facility with respect to actions and decisions regarding an
          individual serving a sentence of imprisonment. [MCL 37.2301(b) (Emphasis
          added).]

        The amendment was “curative and intended to correct any misinterpretation of legislative
intent in the court of appeals decision Neal v Department of Corrections, 232 Mich App 730
(1998). This legislation further expresses the original intent of the legislature that an individual
serving a sentence of imprisonment in a state or county correctional facility is not within the
purview of this act.” 1999 PA 202, enacting § 1. On appeal, the parties do not dispute that the
1999 amendment’s definition of “public service” bars the prisoners’ lawsuit under the ELCRA.
Instead, plaintiffs attack the amendment directly, arguing that it violates their equal protection
rights.

        Plaintiffs also contend that a federal district court case, Mason v Granholm, unpublished
opinion of the Eastern District Court of Michigan, issued January 23, 2007 (Docket No. 05-
73943), precludes defendants from arguing otherwise. In Mason, virtually no factual
background regarding the plaintiffs or the case was provided in the court’s opinion. The court
briefly summarized Romer v Evans, 517 US 620, 633; 116 S Ct 1620; 134 L Ed 2d 855 (1996),
finding it to be an example of when the “Supreme Court struck down an amendment to the
Colorado Constitution that prohibited legislative, executive, or judicial action at any level of
state or local government designed to protect gays and lesbians.”7 The Mason court then opined:



6
    Although not effective until 2000, this will be referred to as the 1999 amendment.
7
    Unlike Amendment 2 to the Colorado Constitution in Romer, which prohibited any
governmental action designed to protect homosexuals, here the 1999 Amendment does not make
it more difficult for prisoners to seek aid from the government. More importantly, the 1999

                                                  -10-
               The MDOC does not argue that the ELCRA amendment advances
       legitimate penological interests, such as maintaining prison order. Rather, the
       MDOC contends that the ELCRA amendment does advance legitimate interests
       such as protecting the public fisc, preventing windfall awards, reducing judicial
       intervention in the management of prisons, deterring frivolous lawsuits by
       prisoners and reducing trivial or inconsequential suits. In support of its argument
       that the ELCRA amendment is constitutional, MDOC cites to several Sixth
       Circuit cases upholding challenges to the federal Prison Litigation Reform Act
       [PLRA], which placed some restrictions on prisoners’ ability to file civil rights
       claims.

               In contrast to the PLRA provisions upheld in . . . other cases, the ELCRA
       amendment paints with a much broader brush. Rather than placing some limits on
       prisoner litigation and deterring frivolous suits, the ELCRA amendment
       completely precludes prisoners from challenging the conditions of their
       confinement or the discriminatory practices of the MDOC under the ELCRA,
       while they are incarcerated or after their release, and whether their claims are
       meritorious or not. The amendment does not, like the PLRA amendments,
       essentially place prisoners in the same position with respect to filing suit as other
       citizens. Rather, the amendment forecloses the vindication of prisoners’ equal
       protection rights under Michigan law.

               Viewing the statute in the context of this case, the ELCRA amendment
       essentially permits the state to discriminate against female prisoners without fear
       of accountability under Michigan’s civil rights law. Given the state’s abhorrent
       and well-documented history of sexual and other abuse of female prisoners, the
       court finds this amendment particularly troubling. It appears that the state
       legislature has not attempted to deter frivolous lawsuits, but rather preclude
       meritorious ones.

               Moreover, while deterring frivolous suits and protecting the public
       treasury are legitimate government interests, the ELCRA amendment is too broad
       to be rationally related to these interests. The ELCRA amendment denies
       prisoners the basic protections against discrimination that all others are afforded
       under Michigan law, as required by Article I, Section Two of the Michigan
       Constitution, which provides that “The legislature shall implement this section by
       appropriate legislation.” There is no rational basis for denying all prisoners
       (including those who have been released)-and no one else-the ability to seek
       redress for illegal discrimination that occurred in prison. As the Romer court
       explained, “[a] law declaring that in general it shall be more difficult for one
       group of citizens than for all others to seek aid from the government is itself a
       denial of equal protection of the laws in the most literal sense.”

Amendment does not preclude prisoners from asking the government for protection from
discrimination. It only prohibits prisoners from filing a lawsuit under the ELCRA and seeking
damages.


                                               -11-
              Accordingly, the court concludes that the ELCRA amendment violates
       prisoners’ equal protection rights and is unconstitutional. [Internal citations and
       quotation marks omitted.]


        On appeal, both parties contest the effect Mason should have on this case and this Court.
For the following reasons, we conclude that Mason is not binding.

                               B. FEDERAL COURT DECISIONS

         “Although state courts are bound by the decisions of the United States Supreme Court
construing federal law, there is no similar obligation with respect to decisions of the lower
federal courts.” Abela v Gen Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004) (internal
citation omitted). In other words, while “lower federal court decisions may be persuasive, they
are not binding on state courts.” Id. at 607. Thus, we reject any argument that we are required to
find that the 1999 amendment to the ELCRA violates equal protection simply because a federal
district judge in a limited, unpublished opinion came to that conclusion.

        Plaintiffs nevertheless argue that a statute declared unconstitutional is void ab initio.
Stranton v Lloyd Hammond Produce Farms, 400 Mich 135, 144; 235 NW2d 114 (1977). See
also Norton v Shelby Co, 118 US 425, 442; 6 S Ct 1121; 30 L Ed 178 (1886) (“An
unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no
protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never
been passed.”). Relying on this rule, plaintiffs contend that because the 1999 amendment was
declared unconstitutional in Mason, it cannot be enforced against them. However, plaintiffs fail
to recognize that the courts of this state have equal responsibility to protect litigants’
constitutional rights, Steffel v Thompson, 415 US 452, 460-461; 94 S Ct 1209; 39 L Ed 2d 505
(1974), and that state courts are not bound by decisions of lower federal courts, Johnson v
Williams, ___ US ___; 133 S Ct 1088, 1098; 185 L Ed 2d 105 (2013); Abela, 469 Mich at 606.8

                                         C. PRECLUSION

                                    1. BACKGROUND LAW

       Plaintiffs next contend that even if the federal district court opinion in Mason was not
binding, per se, the court’s determination nevertheless has preclusive effect on defendants
because of collateral estoppel.9 “The preclusive effect of a federal-court judgment is determined


8
  Although plaintiffs rely on Dascola v Ann Arbor, F Supp 3d 736 (ED Mich, 2014), that case is
inapposite. In Dascola, the issue was not whether the previous federal ruling prevented the
defendants from arguing, in state court, that the statute was constitutional.
9
  We find no merit to defendants’ initial argument that the Sixth Circuit in Mason held that the
federal district court’s decision had no preclusive effect in subsequent lawsuits. The issue before
the Sixth Circuit in that matter was whether the defendants were entitled, at that point in time, to
appeal the federal district court’s decision. It viewed and rejected the defendants’ argument that


                                                -12-
by federal common law.” Taylor v Sturgell, 553 US 880, 891; 128 S Ct 2161; 171 L Ed 2d 155
(2008). See also Pierson Sand & Gravel, Inc v Keeler Brass Co, 460 Mich 372, 380-381; 596
NW2d 153 (1999) (“The state courts must apply federal claim-preclusion law in determining the
preclusive effect of a prior federal judgment.” (Quotation omitted)). “Under collateral estoppel,
once a court has decided an issue of fact or law necessary to its judgment, that decision may
preclude relitigation of the issue in a suit on a different cause of action involving a party to the
first case.” Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308 (1980).

       The application of collateral estoppel is conditioned on the fulfillment of four
requirements:

               (1) the precise issue raised in the present case must have been raised and
       actually litigated in the prior proceeding; (2) determination of the issue must have
       been necessary to the outcome of the prior proceeding; (3) the prior proceeding
       must have resulted in a final judgment on the merits; and (4) the party against
       whom estoppel is sought must have had a full and fair opportunity to litigate the
       issue in the prior proceeding. [Hamilton’s Bogarts, Inc v Michigan, 501 F3d 644,
       650 (CA 6, 2007) (quotation omitted).]

         Although mutuality originally was a requirement, federal courts have “allowed a litigant
who was not a party to a federal case to use collateral estoppel ‘offensively’ in a new federal suit
against the party who lost on the decided issue in the first case[.] But one general limitation the
Court has repeatedly recognized is that the concept of collateral estoppel cannot apply when the
party against whom the earlier decision is asserted did not have a ‘full and fair opportunity’ to
litigate that issue in the earlier case.” Allen, 449 US at 94-95. See also Perez v Aetna Life Ins
Co, 96 F3d 813, 820 (CA 6, 1996); Laborers’ Pension Trust Fund Detroit & Vicinity v Lange,
825 F Supp 171, 175-176 (ED Mich, 1993); In re Air Crash at Detroit Metro Airport, Detroit,
Mich on Aug 16, 1987, 776 F Supp 316, 322 (ED Mich, 1991).

        In the present case, plaintiffs seek to use offensive collateral estoppel, which occurs when
“a plaintiff [seeks] to estop a defendant from relitigating the issues which the defendant
previously litigated and lost against another plaintiff.” Parklane Hosiery Co, Inc v Shore, 439
US 322, 329; 99 S Ct 645; 58 L Ed 2d 552 (1979). Trial courts have broad discretion to
determine whether to permit the use of offensive collateral estoppel. Id. at 331. “The general
rule should be that in cases where a plaintiff could easily have joined in the earlier action or
where, either for the reasons discussed above or for other reasons, the application of offensive
estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive
collateral estoppel.” Id.

                             2. UNMIXED QUESTIONS OF LAW



the Mason decision “permanently enjoins the State Defendants from raising a valid defense to
this lawsuit and in subsequent lawsuits” in light of the standards for granting an interlocutory
appeal.


                                               -13-
        Defendants contend that the exception to collateral estoppel for “unmixed questions of
law in successive actions involving substantially unrelated claims” applies in this case. Montana
v United States, 440 US 147, 162; 99 S Ct 970; 59 L Ed 2d 210 (1979).10

       The United States Supreme Court has explained the exception as the following:

              Where, for example, a court in deciding a case has enunciated a rule of
       law, the parties in a subsequent action upon a different demand are not estopped
       from insisting that the law is otherwise, merely because the parties are the same in
       both cases. But a fact, question or right distinctly adjudged in the original action
       cannot be disputed in a subsequent action, even though the determination was
       reached upon an erroneous view or by an erroneous application of the law.

              Thus, when issues of law arise in successive actions involving unrelated
       subject matter, preclusion may be inappropriate. [Id. (emphasis in original;
       quotation marks and citation omitted).

        Further, “[t]his exception is of particular importance in constitutional adjudication.
Unreflective invocation of collateral estoppel against parties with an ongoing interest in
constitutional issues could freeze doctrine in areas of the law where responsiveness to changing
patterns of conduct or social mores is critical.” Id. at 162-163.

        But, plaintiffs argue that this exception does not apply here because rather than an
“unrelated subject matter,” the subject matter in Mason and the present case is identical. We
agree that the legal issue is identical, although due to the scarcity of facts presented in the Mason
decision, it is difficult to discern the degree of factual similarity in the two cases. While one
difference appears to be that the prisoners in Mason were females, as the Court explained in
United States v Stauffer Chem Co, 464 US 165, 172; 104 S Ct 575; 78 L Ed 2d 388 (1984),
factual differences must be of legal significance. Any factual differences between Mason and
the present case do not appear to be legally significant regarding whether the 1999 amendment is
constitutional.




10
     Defendants also raise several unpersuasive reasons for why collateral estoppel is not
applicable in this case. For example, they contend that the defendants in Mason lacked incentive
to litigate the constitutionality of the 1999 amendment. According to the United States Supreme
Court, “[i]f a defendant in the first action is sued for small or nominal damages, he may have
little incentive to defend vigorously, particularly if future suits are not foreseeble.” Parklane,
439 US at 330. Yet, in seeking a stay from the district court’s order, defendants argued that an
untold number of lawsuits would result. Thus, defendants appeared cognizant of the stakes in
Mason. Moreover, most of defendants’ arguments rest on their attempt to characterize this as an
issue regarding the authority of state courts to decide issues. That is a different issue than
collateral estoppel; collateral estoppel is concerned with whether a party should have a second
chance to litigate an issue. See Parklane Hosiery Co, 439 US at 326-327.


                                                -14-
        However, in Pharmaceutical Care Mgt Ass’n v District of Columbia, 522 F3d 443, 446;
380 US App DC 418 (2008), the court observed that “[l]ess is required for the exception to apply
in a case of non-mutual estoppel—such as this case.” The court explained that “[i]n a non-
mutual case, an issue is not precluded if it is one of law and treating it as conclusively
determined would inappropriately foreclose opportunities for obtaining reconsideration of the
legal rule upon which it was based.” Id. at 446-447 (quotation marks and citation omitted). The
federal court explained that applying collateral estoppel in such an instance would “freeze the
development of the law in an area of substantial public interest.” Id. at 447.

        We find this reasoning to be persuasive. The issue of whether prisoners can sue for relief
under the ELCRA, which is a pure legal question, is one of substantial public interest. It also
requires courts to venture into the hallowed domain of constitutional law. Applying collateral
estoppel in the present case, because one federal district court—in an unpublished case—ruled
that the 1999 amendment was unconstitutional, would freeze this area of law prematurely and
improperly.

                                   3. STATE AS A PARTY

       Also relevant is that defendants are state actors. In United States v Mendoza, 464 US
154, 158, 162; 104 S Ct 568; 78 L Ed 2d 379 (1984), the United States Supreme Court held that
nonmutual offensive collateral estoppel cannot be used against the federal government. It
explained its reasoning as follows:

                We have long recognized that the Government is not in a position identical
       to that of a private litigant, both because of the geographic breadth of government
       litigation and also, most importantly, because of the nature of the issues the
       government litigates. It is not open to serious dispute that the government is a
       party to a far greater number of cases on a nationwide basis than even the most
       litigious private entity[.] . . . Government litigation frequently involves legal
       questions of substantial public importance; indeed, because the proscriptions of
       the United States Constitution are so generally directed at governmental action,
       many constitutional questions can arise only in the context of litigation to which
       the government is a party. Because of those facts the government is more likely
       than any private party to be involved in lawsuits against different parties which
       nonetheless involve the same legal issues.

               A rule allowing nonmutual collateral estoppel against the government in
       such cases would substantially thwart the development of important questions of
       law by freezing the first final decision rendered on a particular legal issue.
       Allowing only one final adjudication would deprive this Court of the benefit it
       receives from permitting several courts of appeals to explore a difficult question
       before this Court grants certiorari. Indeed, if nonmutual estoppel were routinely
       applied against the government, this Court would have to revise its practice of
       waiting for a conflict to develop before granting the government's petitions for
       certiorari.



                                              -15-
               The Solicitor General’s policy for determining when to appeal an adverse
       decision would also require substantial revision. The Court of Appeals faulted the
       government in this case for failing to appeal a decision that it now contends is
       erroneous. But the government’s litigation conduct in a case is apt to differ from
       that of a private litigant. Unlike a private litigant who generally does not forego
       an appeal if he believes that he can prevail, the Solicitor General considers a
       variety of factors, such as the limited resources of the government and the
       crowded dockets of the courts, before authorizing an appeal. The application of
       nonmutual estoppel against the government would force the Solicitor General to
       abandon those prudential concerns and to appeal every adverse decision in order
       to avoid foreclosing further review.

                In addition to those institutional concerns traditionally considered by the
       Solicitor General, the panoply of important public issues raised in governmental
       litigation may quite properly lead successive Administrations of the Executive
       Branch to take differing positions with respect to the resolution of a particular
       issue. While the Executive Branch must of course defer to the Judicial Branch for
       final resolution of questions of constitutional law, the former nonetheless controls
       the progress of government litigation through the federal courts. It would be idle
       to pretend that the conduct of government litigation in all its myriad features,
       from the decision to file a complaint in the United States District Court to the
       decision to petition for certiorari to review a judgment of the Court of Appeals, is
       a wholly mechanical procedure which involves no policy choices whatever. [Id.
       at 159-161.]

       Defendants reason that, as nonmutual offensive collateral estoppel cannot be used against
the federal government, it likewise should not be applied against state governments. Although
some federal circuits have found that states are unlike the federal government, and therefore the
reasoning of Mendoza does not apply, see Benjamin v Coughlin, 905 F2d 571, 576 (CA 2, 1990),
we disagree. Instead, we find federal cases applying this rule to state courts to be more
persuasive and, thus, we will follow them.

        For example, in Hercules Carriers, Inc v Claimant State of Florida, Dep’t of Transp, 768
F2d 1558, 1579 (CA 11, 1985), the Eleventh Circuit held “that the rationale outlined by the
Supreme Court in Mendoza for not applying nonmutual collateral estoppel against the
government is equally applicable to state governments.” The court reasoned that Mendoza did
not differentiate between the interests of the federal government and state government, nor was
there anything in Mendoza to suggest that the concerns expressed by the court were peculiar to
the federal government. Id.11 Likewise, in State of Idaho Potato Comm v G&T Terminal




11
   Although plaintiffs focus on the fact that the court in Hercules noted that the case involved
different state agencies, that was only one additional reason the court provided. Further, we note
that all the defendants in this case do not appear to be identical to all of the defendants in Mason.


                                                -16-
Packaging, Inc, 425 F3d 708, 714 (CA 9, 2005), the Ninth Circuit held that the rationale in
Mendoza applied to state governments.12

         Like the federal government, state governments are subject to suit at a frequency that
even the most litigious private entity does not come close to reaching. Further, government
litigation frequently involves legal questions of substantial public importance, such as in this
case. We also agree that, because of differences between a state government and private
litigants, applying nonmutual collateral estoppel against a state government would thwart the
development of important questions of law. It would freeze as final the first decision rendered
on a particular legal question, most times prematurely. Mendoza, 464 US at 106. That is
especially so in this case, as plaintiffs are attempting to offensively apply nonmutual collateral
estoppel from an unpublished, limited federal district court case to the matter before us. This
application of collateral estoppel would prematurely prevent future courts from exploring these
complex and important legal issues as they would be perpetually frozen in time.

     Accordingly, defendants are not precluded, based on Mason, from arguing that the 1999
amendment to the ELCRA is constitutional.

                                   V. EQUAL PROTECTION

                                    A. BACKGROUND LAW

     Because Mason is not binding on us or defendants, we next address whether the 1999
amendment to the ELCRA is facially unconstitutional as violative of equal protection.

        Under the United States Constitution, no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” US Const, Am XIV. The Michigan Constitution
provides:

              No person shall be denied the equal protection of the laws; nor shall any
       person be denied the enjoyment of his civil or political rights or be discriminated
       against in the exercise thereof because of religion, race, color or national origin.
       [Const 1963, art 1, § 2.]

        The Equal Protection Clause in the Michigan Constitution is coextensive with the Equal
Protection Clause in the United States Constitution. Shepherd Montessori Ctr Milan v Ann


12
   See also Chambers v Ohio Dep’t of Human Servs, 145 F3d 793, 801 n 14 (CA 6, 1998),
wherein the Sixth Circuit opined, in the context of Ohio law, that “[a]lthough the Mendoza
rationale has not been definitively extended to apply to state governments, there is support for
that proposition. The same considerations set forth in Mendoza with respect to the federal
government may apply to state governments.” (Internal citations omitted). The Sixth Circuit
concluded that “[w]hile Ohio law is silent in this respect, given its restrictive views on mutuality,
we anticipate that the Ohio Supreme Court would not use offensive non-mutual issue preclusion
against the state.” Id.


                                                -17-
Arbor Charter Twp, 486 Mich 311, 318; 783 NW2d 695 (2010). “[T]he constitutional demand is
not a demand that a statute necessarily apply equally to all persons.” Rinaldi v Yeager, 384 US
305, 309; 86 S Ct 1497; 16 L Ed 2d (1966). “While the Equal Protection Clause ensures that
people similarly situated will be treated alike, it does not guarantee that people in different
circumstances will be treated the same.” In re Parole of Hill, 298 Mich App 404, 420; 827
NW2d 407 (2012) (quotation marks and citation omitted). The threshold inquiry is whether the
plaintiff was treated differently from a similarly situated entity. Shepherd Montessori Ctr Milan,
486 Mich at 318. Further,

       [t]o determine whether a legislative classification violates equal protection, the
       reviewing court applies one of three tests. If the legislation creates an inherently
       suspect classification or affects a fundamental interest, the “strict scrutiny” test
       applies. Other classifications that are suspect but not inherently suspect are
       subject to the “substantial relationship” test. However, social and economic
       legislation is generally examined under the traditional “rational basis” test.
       [Zdrojewski v Murphy, 254 Mich App 50, 79; 657 NW2d 721 (2002) (citations
       omtted).]

        It is well established that “prisoners” are not a suspect class. See People v Groff, 204
Mich App 727, 731; 516 NW2d 532 (1994). Plaintiffs’ argument that the 1999 amendment
“stripped all and only prisoners of any of ELCRA’s remedies for unquestionably unconstitutional
discrimination based on age, [disability,] race, and gender” is not availing. Importantly, the
classification in the 1999 amendment at issue is based on a person’s status as a prisoner, not
based on any of the suspect classifications of age, disability, race, or gender. In other words, the
1999 amendment applies to all prisoners, including males and females, the youth and aged, the
abled and disabled, and individuals of all different races. Those suspect classifications simply
are not the dividing lines in this case.

         Furthermore, plaintiffs have not sufficiently alleged that the 1999 ELCRA amendment
itself infringes upon a protected, fundamental right. Any right implicated emanates from the
statute, which declares that

       [t]he opportunity to obtain employment, housing and other real estate, and the full
       and equal utilization of public accommodations, public service, and educational
       facilities without discrimination because of religion, race, color, national origin,
       age, sex, height, weight, familial status, or marital status . . . is recognized and
       declared to be a civil right.” [MCL 37.2102(1) (emphasis added).]

        Plaintiffs cite to no authority that limits the Legislature’s authority to define what
constitutes (or does not constitute) a “public service” under the ELCRA. There is nothing in the
constitutional mandate regarding public accommodation or public service. Since the Legislature
created these civil rights,13 it naturally follows that it can define the scope of them. See Beech


13
  We note that these legislatively created rights are more expansive than the constitutionally
protected rights under Const 1963, art 1, § 2, which only covers discrimination on the basis of

                                               -18-
Grove Inv Co v Civil Rights Comm, 380 Mich 405, 426; 157 NW2d 213 (1968), quoting Roger C
Cramton, The Powers of the Michigan Civil Rights Commission, 63 Mich L Rev 5, 9 (1964)
(noting that civil rights were not specifically defined in the Constitution and that the Legislature
was to “define their scope, limits, and sanctions.”).

        The fact that this Court has determined that the pre-1999 amendment term “public
service” includes prisons does not stand for the proposition that the Legislature could never alter
the definition thereafter. See Doe v Dep’t of Corrections, 240 Mich App 199, 201; 611 NW2d 1
(2000) (“If it is the intent of the Legislature not to have these statutes applied to prisoners and
prisons, then it is incumbent on the Legislature to draft and enact statues that so provide.”).
Indeed, because of the fact that prisons are not “open to the public,” their exclusion as a place of
“public service” is reasonable. See id. at 206-207 (GRIBBS, J., dissenting) (noting that prisons
are not established to provide services to the public).

        Consequently, because no suspect class --based upon age, disability, race, or gender-- is
being singled out and no fundamental right is being affected, we apply the rational basis test to
determine whether the 1999 amendment violates equal protection.14 “Under the rational basis
test, legislation is presumed to be constitutional and will survive review if the classification
scheme is rationally related to a legitimate governmental purpose.” Zdrojewski, 254 Mich App
at 80. Further, “the burden of showing a statute to be unconstitutional is on the challenging
party, not on the party defending the statute.” Shepherd Montessori Ctr Milan, 486 Mich at 319
(emphasis in original; quotation marks and citation omitted). Thus, “[t]o prevail under this
highly deferential standard of review, a challenger must show that the legislation is arbitrary and
wholly unrelated in a rational way to the objective of the statute.” Harvey v State, Dep’t of
Management & Budget, Bureau of Retirement Servs, 469 Mich 1, 7; 664 NW2d 767 (2003)
(quotation marks and citation omitted). A classification reviewed under rational basis survives if
the legislative judgment is supported by any set of facts, either known or which could reasonably
be assumed, even if such facts are debatable. Id. As our Supreme Court has cautioned, rational
basis review does not test the need, wisdom, or appropriateness of the legislation, nor whether
the classification is made with mathematical nicety or whether it results in some inequity in
practice. Id. Rather, the statute is presumed constitutional, and the challenger bears a heavy
burden of rebutting this presumption. Id.

                                  B. SIMILARLY SITUATED

        Our Supreme Court has advised that, when reviewing an equal protection challenge to
state legislation, the threshold inquiry is whether the plaintiff was treated differently from a
similarly situated class of individuals. Shepherd Montessori Ctr Milan, 486 Mich at 318.
Defendants contend that prisoners are not similarly situated to nonprisoners. Plaintiffs make no
claim that prisoners are similarly situated to nonprisoners. Instead, they assert that a similarly
situated analysis is not applicable because that inquiry only applies to “class of one” claims.
“religion, race, color or national origin.” In fact, because plaintiffs’ claims allege discrimination
on the basis of sex, it is clear that the constitutional rights are not implicated.
14
   Although plaintiffs cite to Romer and contend that heightened scrutiny should apply, the Court
in Romer applied rational basis. Romer, 517 US at 632-635.


                                                -19-
However, even in cases that do not involve class of one claims, we have recognized that equal
protection requires only equal treatment for those who are similarly situated. See Schmude Oil,
Inc v Dep’t of Environmental Quality, 306 Mich App 35, 55; 856 NW2d 84 (2014); Brinkley v
Brinkley, 277 Mich App 23, 35; 742 NW2d 629 (2007); Crego v Coleman, 463 Mich 248, 258;
615 NW2d 218 (2000). Moreover, “[t]o be considered similarly situated, the challenger and his
comparators must be prima facie identical in all relevant respects or directly comparable . . . in
all material respects.” Demski v Petlick, __ Mich App __; __NW2d __ (Docket No. 322193,
issued March 5, 2015) (quotation marks and citation omitted); slip op at 30; Schmude Oil, Inc,
306 Mich App at 55 (quotation marks and citation omitted).

        Prisoners and nonprisoners are not similarly situated in the relevant respects in this case.
The most obvious difference is that prisoners lack liberty when receiving what plaintiffs argue
are public services. Prisoners are not receiving services from prisons as a result of an invitation
or a voluntary arrangement. Very few, if any, voluntarily avail themselves of residency in a
correctional facility. Rather, they are compelled to be there, and must be content, for the most
part, with the services provided. See Brown v Genesee Co Bd of Comm’rs (After Remand), 464
Mich 430, 439; 628 NW2d 471 (2001) (opinion of CORRIGAN, J.) (“an inmate does not visit a jail
as a potential invitee. Instead, inmates are legally compelled to be there[.]”) (Emphasis in
original). Thus, they are not receiving these alleged public services as some type of benefit but
instead as a necessary corollary of the punishment to which a court has sentenced them. Further,
while receiving these services, prisoners are not in the same position as the general public, as
many of their fundamental rights are severely curtailed. See Samson v California, 547 US 843,
848; 126 S Ct 2193; 165 L Ed 2d 250 (2006); Hudson v Palmer, 468 US 517, 525-526; 104 S Ct
3194; 82 L Ed 2d 393 (1984). See also People v Maxson, 181 Mich App 133, 135; 449 NW2d
422 (1989) (stating that “inmates and ordinary citizens are not similarly situated” in the context
of prosecutions for possession of metallic knuckles).15

        Therefore, especially in light of the fact that plaintiffs fail to offer a cognizable argument
that prisoners are similarly situated to nonprisoners, we find there is no genuine issue of material
fact regarding prisoners being similarly situated, i.e., identical in all relevant respects or directly
comparable in all material respects, to nonprisoners. Demski, __ Mich App at__; slip op at 30.16

                                      C. RATIONAL BASIS



15
   In various other contexts, courts have found that prisoners and nonprisoners are not similarly
situated. See Smith v Corcoran, 61 F Appx 919 (CA 5, 2003); Roller v Gunn, 107 F3d 227, 234
(CA 4, 1997); Scher v Chief Postal Inspector, 973 F2d 682, 683-684 (CA 8, 1992); Hrbek v
Farrier, 787 F2d 414, 417 (CA 8, 1986); Niemic v UMass Corr Health, __ F Supp 3d __ (D
Mass, 2015); Pratt v GEO Group, Inc, 802 F Supp 2d 1269, 1272 (WD Okla, 2011); Hertz v
Carothers, 174 P3d 243, 248 (Alas, 2008); McGuire v Ameritech Servs, Inc, 253 F Supp 2d 988,
1001 (SD Ohio, 2003); Rudolph v Cuomo, 916 F Supp 1308, 1323 (SD NY, 1996).
16
   Because we agree that prisoners are not similarly situated, we decline to address defendants’
alternate arguments regarding this issue.


                                                 -20-
        However, even if we were to find that prisoners are similarly situated to nonprisoners, or
even if we were not required to engage in such an analysis, plaintiffs’ claim still fails because
plaintiffs have failed to show how the 1999 amendment was not rationally related to a legitimate
governmental interest.

        Defendants offer several purposes behind the 1999 amendment, the first being prison
order and management. Generally, it is true that the maintenance of order in a prison is an
essential goal that could require limiting or retracting the rights of a prisoner. Bell v Wolfish, 441
US 520, 546; 99 S Ct 1861; 60 L Ed 2d 447 (1979). But, we fail to see how prohibiting
prisoners from suing for damages for discrimination under the ELCRA serves the purpose of
maintaining prison order. Accordingly, we conclude that this purpose is not rationally related to
a legitimate governmental interest.

       However, the second purpose defendants offer is the deterrence of meritless lawsuits and
the preservation of scarce resources through the reduction of costs associated with resolving
those lawsuits. Several courts have already recognized that the preservation of scarce
governmental resources from frivolous prisoner actions is a legitimate government interest.

       In Proctor v White Lake Twp Police Dep’t, 248 Mich App 457; 639 NW2d 332 (2001),
the plaintiff argued that the provisions under the Freedom of Information Act (FOIA), MCL
15.231 et seq., which excluded incarcerated prisoners from obtaining public records, violated
equal protection. Id. at 468. This Court disagreed. Id. at 469-470. We found “that the
Legislature’s FOIA exclusions singling out incarcerated prisoners rationally relate to the
Legislature’s legitimate interest in conserving the scarce governmental resources squandered
responding to frivolous FOIA requests by incarcerated prisoners.” Id. at 469.

        In Morales v Mich Parole Bd, 260 Mich App 29; 676 NW2d 221 (2003), the plaintiff
argued that MCL 791.234, which precluded prisoners from appealing the decision of a parole
board, violated equal protection. However, we found that the exclusion was “rationally related
to the Legislature’s legitimate interest in saving public funds in response to innumerable
frivolous requests by incarcerated prisoners for the review of the Parole Board’s denials of
parole.    We recognize the government’s legitimate interest in conserving the scarce
governmental resources[.]” Id. at 52.

       In cases involving the federal PLRA, the deterrence of meritless lawsuits likewise has
been recognized as a legitimate governmental interest. In Hampton v Hobbs, 106 F3d 1281,
1281 (CA 6, 1997), the plaintiff argued that the fee requirements of the federal PLRA, which
required all prisoners to pay an initial filing fee, violated equal protection. The Sixth Circuit
found that “[d]eterring frivolous prisoner filings in the federal courts falls within the realm of
Congress’s legitimate interests, and the specific provisions in question are rationally related to
the achievement of that interest.” Id. at 1287.

       In Hadix v Johnson, 230 F3d 840, 840 (CA 6, 2000), the plaintiff argued that the attorney
fee cap provision in the federal PLRA violated equal protection. The Sixth Circuit disagreed,
finding that the “cap does appear to be rationally related to the very similar goal of decreasing
marginal or trivial lawsuits.” Id. at 845-846. The court explained that “in lowering the fee
recoverable if the claim succeeds, attorneys are likely to demand a more meritorious claim to

                                                -21-
make the representation worthwhile.” Id. at 845. The Sixth Circuit also found that Congress, by
reducing marginal or frivolous lawsuits, “could also rationally be seeking to protect the state and
federal treasuries, from which the majority of prisoner civil rights awards are paid.” Id.

        In Walker v Bain, 257 F3d 660, 669 (CA 6, 2001), the Sixth Circuit found that the
PLRA’s cap on the defendants’ liability for attorney fees did not violate equal protection. Like
Haddix, the court found the “twin goals of decreasing marginal lawsuits and protecting the
public fisc are legitimate government interests, and that decreasing an attorney fee award in the
context of prisoner civil rights litigation serves both of these interests.” Id.

        As the foregoing cases indicate, it is well established that deterring frivolous prisoner
lawsuits furthers a legitimate governmental interest. Not only can the Legislature impose limits
on how prisoners interact with the courts, it can wholly preclude them from filing certain claims.
See Proctor, 248 Mich App at 469-470. Even if defendants did not provide any evidence that
prisoners have a history of excess filings of frivolous discrimination claims, this fact does not
make the 1999 amendment invalid. That is because legislation subject to rational basis review
“passes constitutional muster if the legislative judgment is supported by any set of facts, either
known or which could reasonably be assumed, even if such facts may be debatable.” Harvey,
469 Mich at 7 (quotation marks and citation omitted). Thus, the Legislature could reasonably
assume that prisoners frequently file frivolous lawsuits in general. Scarce resources are
preserved when fewer lawsuits are filed against correctional facilities and prison officials. And
even though prisoners with meritorious claims of discrimination are precluded by virtue of the
1999 amendment, under the rational basis test, courts do not inquire into whether the legislation
results in some inequity. Id. Nor do we test the need, wisdom, or appropriateness of the
legislation. Id. Rather, we remain vigilant in our limited role, which is to presume that the
statute is constitutional and to hold the challenger to its heavy burden of rebutting this
presumption. Id.

        Because the 1999 amendment is rationally related to the legitimate interests of deterring
frivolous lawsuits and preserving scarce public resources, we hold that the amendment passes the
rational basis test and is constitutional. Accordingly, defendants were entitled to summary
disposition because, with the state correctional facilities in this case not being areas of “public
service” under the ELCRA, plaintiffs have failed to state a claim on which relief could be
granted. MCR 2.116(C)(8).

        Therefore, the trial court erred in denying defendants’ motion for summary disposition on
this ground. Because our analysis disposes of the lawsuit, we decline to address defendants’
alternate arguments regarding plaintiffs’ failure to state a claim.17

      In essence, plaintiffs’ suit here is about whether prisoners can seek a remedy under the
ELCRA. We do not pass judgment on the validity of the underlying claims of this lawsuit.
Although the ELCRA may not be among the avenues through which plaintiffs can seek monetary


17
   Because we agree that prisoners are not similarly situated, we decline to address defendants’
alternate arguments regarding this issue.


                                               -22-
redress for their alleged injuries, as discussed supra, this fact alone does not render the statute
unconstitutional, nor does it preclude plaintiffs from pursuing remedies available to them
through other legal avenues.

        Plaintiffs’ claim that each of them was sexually assaulted while in a correctional facility
would, if proven, amount to extremely egregious and reprehensible conduct by defendants. But,
this case concerns only plaintiffs’ ability to sue for damages under the ELCRA, as opposed to
addressing their grievances pursuant to other civil or constitutional remedies that may exist.18

       In fact, plaintiffs already have initiated a companion case in a federal court action under
42 USC § 1983. In addition, plaintiffs could again choose to seek relief under the PLRA.
Additionally, they could seek injunctive relief pursuant to a constitutional action, or initiate
individual tort claims. Sharp v Lansing, 464 Mich 792, 801; 629 NW2d 873 (2001). Thus,
while prisoner lawsuits relating to correctional facilities as places of public service are precluded
under the ELCRA, plaintiffs’ inability to sue under this statute does not preclude them from
seeking redress for the serious wrongs they are alleging through any other avenues that may be
available to them.19 Nor are plaintiffs, or others, precluded from seeking a legislative change to
the ELCRA to allow prisoner public service lawsuits under the statute.20

                                        VI. CONCLUSION

        In Docket No. 321013, we agree with defendants that the trial court erred in failing to
grant them summary disposition regarding plaintiffs’ failure to comply with the disclosure
requirements of MCL 600.5507. In Docket No. 321756, we likewise agree with defendants that
the trial court erred in failing to grant them summary disposition regarding plaintiffs’ claims
under the ELCRA. We have reviewed all remaining issues and find them to be without merit or


18
  Although plaintiff’s allegations relate to the fundamental right to be free from sexual assault,
as discussed supra, at its essence, the matter before us is about the right of prisoners to sue for
money damages under the ELCRA. Furthermore, the right to be free from sexual assault rests in
substantive due process, and plaintiffs have asserted only an equal protection challenge to the
1999 amendment. Doe v Claiborne Co, Tenn By & Through Claiborne Co Bd of Ed, 103 F3d
495, 506 (CA 6, 1996). See also Albright v Oliver, 510 US 266, 272; 114 S Ct 807; 127 L Ed 2d
114 (1994); Ingraham v Wright, 430 US 651, 673; 97 S Ct 1401; 51 L Ed 2d 711 (1977); Union
Pacific R Co v Botsford, 141 US 250, 251; 11 S Ct 1000; 35 L Ed 734 (1891).
19
   In their briefing, plaintiffs refer to their fundamental right to access the courts. However, in
light of the many actions plaintiffs remain free to assert, their right to access to the courts is not
foreclosed by our decision in this matter. See Michigan Deferred Presentment Services Ass’n v
Comm’r of Office of Fin & Ins Regulation, 287 Mich App 326, 336; 788 NW2d 842 (2010);
Stevenson v Reese, 239 Mich App 513, 518-519; 609 NW2d 195 (2000); American States Ins Co
v State Dep’t of Treasury, 220 Mich App 586, 595-596; 560 NW2d 644 (1996).
20
   While the dissent claims that plaintiffs would be hard pressed to find attorneys to represent
them if they are not permitted to sue under the ELCRA, that conclusion is purely speculative and
not based on anything in the record before us.


                                                -23-
unnecessary for the disposition of this appeal. We reverse and remand for entry of summary
disposition in favor of defendants. We do not retain jurisdiction.

                                                       /s/ Michael J. Riordan
                                                       /s/ Pat M. Donofrio




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