                          STATE OF MICHIGAN

                           COURT OF APPEALS



JOHN DOES 1-7, and all others similarly situated,                  FOR PUBLICATION
                                                                   August 25, 2015
              Plaintiffs-Appellees,

v                                                                  No. 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.

BECKERING, J. (concurring in part and dissenting in part).

        This case is about the alleged rape, sexual harassment, and physical assault of minors
who are confined in adult prisons operated by the Michigan Department of Corrections. At issue
in this appeal is the Legislature’s attempt to shield the State from liability for its conduct in
allegedly condoning, perpetuating, and even participating in such grievances—and any other

                                               -1-
civil rights violations for that matter—upon our state’s incarcerated individuals. Because I find
that the Legislature’s amendment of the Elliot-Larson Civil Rights Act (ELCRA), MCL 37.2101
et seq., specifically MCL 37.2301(b), by excluding prisoners from the scope of the act, is
unconstitutional, I would affirm the trial court’s denial of defendants’ motion for summary
disposition on this issue. Because I find that plaintiffs have stated a claim, I would also affirm
the trial court’s denial of defendants’ motion for summary disposition pursuant to MCR
2.116(C)(8). Finally, because I am bound by precedent, I must concur with the majority’s ruling
with respect to plaintiffs’ failure to comply with the disclosure requirements of the Prisoner
Litigation Reform Act (PRLA), specifically MCL 600.5507(2), although dismissal would be
without prejudice. Were I not bound by precedent, I would allow plaintiffs to file an amended
complaint in compliance with MCL 600.5507(2).

                           I. PRISON LITIGATION REFORM ACT

        Defendants contend that plaintiffs failed to meet the disclosure requirements set forth in
the Prison Litigation Reform Act (PLRA), MCL 600.5501, specifically MCL 600.5507(2), which
provides that “[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.” The majority
agrees with defendants, and so do I. And I am bound by precedent to agree that dismissal is the
proper remedy.

      When filing suit in this case, plaintiffs identified the following on the face of 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 previously been filed
       in the Eastern District of Michigan and was assigned to Judge Cleland. The
       action remains pending.

         I agree with the majority’s opinion that the above disclosure has all the earmarks of a
disclosure in accordance with MCR 2.113(C)(2), rather than an effort to comply with MCL
600.5507(2). Despite plaintiffs’ assertions that the disclosure satisfies the PLRA requirements,
like the majority, I must disagree. The disclosure failed to identify the parties of the previous
litigation and left no clues as to how many other lawsuits plaintiffs previously initiated. The
statute unambiguously mandates the disclosure of the number of civil actions previously
initiated, “even when that number is zero.” Tomzek v Dep’t of Corrections, 258 Mich App 222,
225; 672 NW2d 511 (2003).




                                                -2-
        Although plaintiffs argue that the disclosure requirements of MCL 600.5507(2) apply
only to civil actions filed by prisoners seeking indigency status, I agree with the majority that
subsection (2) is not so limited. It broadly imposes the disclosure requirements on “[a] prisoner
who brings a civil action” and does not qualify such language as applying only to a certain class
of prisoner litigants. See Barrow v Detroit Election Comm, 301 Mich App 404, 414-415; 836
NW2d 498 (2013) (the Legislature’s use of the indefinite article “a” refers to a general item, not
a particular item). And for reasons that are adequately explained by the majority, there is no
merit to plaintiffs’ argument that either the context of the statute or the act’s legislative history
require a different result.

       I write separately to voice my concerns about the proper interpretation of MCL
600.5507(3) concerning whether and when dismissal of a lawsuit is required. MCL 600.5507(3)
provides in pertinent part that:

               (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:

                                                ***

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

As the majority notes, employment of the phrase “shall dismiss” deems an action mandatory, and
this Court in Tomzek, 258 Mich App at 223, held that such phrase “mandates dismissal” “without
regard to how or when the issue was raised.” In light of Tomzek, I must concur in the result
reached by the majority, although I would note that the dismissal is without prejudice.1 My
concern, however, is that this interpretation ignores the present tense aspect of subsection (3)(b),
wherein it states that dismissal is required if the prisoner “fails to comply” with the disclosure
requirements of subsection (2). Such phrase could be interpreted one of two ways in the context
of the statute. One could conclude, as does Tomzek and the majority, that subsection (3) requires
a civil action to be dismissed if the plaintiff failed to provide the necessary disclosure
information in keeping with the temporal requirement of subsection (2), being “upon
commencement of the action or initiation of the appeal.” 2 However, one could also conclude
that subsection (3) only requires dismissal if the plaintiff “fails to” comply with the disclosure
requirement, meaning that he or she has not provided the disclosure information, and thus, he or
she is subject to dismissal as a consequence of such failure.3 The former interpretation is quite


1
  Given the majority’s corresponding substantive rulings, the nature of dismissal with respect to
the PRLA issue is rendered immaterial.
2
  MCR 2.101(B) describes “Commencement of Action” as follows: “[a] civil action is
commenced by filing a complaint with a court.”
3
  The present tense of a verb is used to “express present time” and to “make a statement that is
true at all times.” Sabin, The Gregg Reference Manual (11th ed) (New York: Glenco McGraw–
Hill, 2011), p 313. A court is to interpret and enforce statutes as written, and “[t]his includes,

                                                -3-
literal, and begets a “Simon Says” procedural requirement. The latter is more logical and
comports with the present tense verb provided in subsection (3), as there is no discernible reason
why a case should be dismissed if the plaintiff filed the disclosure, albeit not on the face of the
initial complaint, but did in fact make the disclosure.4 What is the point of dismissal if the
plaintiff has complied and defendant has the necessary information required by subsection (2)?
It would be a purely punitive measure, as dismissing a lawsuit even after the plaintiff has filed
the necessary disclosure information would serve no other purpose, especially since subsection
(2), as it applies to nonindigent prisoners, serves no apparent purpose.

        Interpreting MCL 600.5507(3) as does the majority and Tomzek also creates fertile
ground for gamesmanship. For instance, if a plaintiff fails to comply with the statute, nothing
would prevent a defendant from waiting a year or two after the lawsuit is filed to raise the issue
and gain dismissal of the suit. In fact, a defendant could litigate the matter on the merits, and
upon receiving an unfavorable verdict, simply invoke the plaintiff’s failure to timely comply
with MCL 600.5507(2) as a post-judgment parachute. Given the present interpretation, dismissal
would be required years into the litigation, even if the plaintiff had filed his or her disclosure
shortly after filing the complaint. Put simply, MCL 600.5507, as previously interpreted by this
Court, creates an escape hatch or “get out of jail free” card to be used at the leisure of the
defendant. Had this Court not already interpreted the meaning of subsection (3), I would permit
plaintiffs to file an amended complaint with the requisite disclosures under MCL 600.5507(2)
such that dismissal would not be required.5 MCR 7.215(C)(2).

                           II. ELCRA AND CONST 1963, ART 1, § 2

        “[W]hen you take away the freedom of equality or justice of any individual, you all
suffer.” Statement of Mr. Dade, 1 Official Record, Constitutional Convention 1961, p 743.
Somewhat befitting of the present controversy, this statement was made in relation to the
adoption of Const 1963, art 1, § 2, the provision at issue in this case. Yet, despite a clear
constitutional mandate that the enabling legislation to be implemented in compliance with Const
1963, art 1, § 2, apply to all citizens, without limitation, in 1999 the Legislature attempted to take
away the rights of prisoners who seek redress under the ELCRA. It is this exclusion from


without reservation, the Legislature’s choice of tense.” Holland v Consumers Energy Co, 308
Mich App 675, __ NW2d __ (2015), slip op at 5.
4
  One could also interpret more generally the phrase “upon commencement of the action,” as
used in MCL 600.5507(2), as meaning at the outset of the case, rather than necessarily being tied
to the actual filing of the complaint.
5
  I note that plaintiffs were without the option of voluntarily dismissing the complaint in order to
re-file and comply with the disclosure requirements because they had already voluntarily
dismissed once, and a second voluntary dismissal would have operated as an adjudication on the
merits. MCR 2.504(A)(1). I also note that the trial court, before ruling on defendants’ motion
for summary disposition based on the disclosure requirements, stated that it would give plaintiffs
leave to amend if they wished. It does not appear that plaintiffs took the opportunity to amend at
that time.


                                                 -4-
protection under the ELCRA that, in my opinion, renders the 1999 amendment to the ELCRA
unconstitutional.

                                  A. STANDARD OF REVIEW

        At issue in this case is the constitutionality of a 1999 amendment to the ELCRA, a
question that we review de novo. See Mich Dep’t of Treasury v Tomkins, 481 Mich 184, 190-
191; 749 NW2d 716 (2008).6 In my view, the constitutionality of the 1999 amendment turns on
an examination of Const 1963, art 1, § 2 and the directive to the Legislature contained therein.
“When interpreting the Constitution, our task is to give effect to the common understanding of
the text[.]” Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 155; 665 NW2d 452 (2003).

                   B. DEVELOPMENT OF CIVIL RIGHTS LEGISLATION

    1. THE MICHIGAN CONSTITUTION GUARANTEES PROTECTION TO ALL CITIZENS

        Michigan’s equal protection clause, set forth in Const 1963, art 1, § 2, 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.
        The legislature shall implement this section by appropriate legislation. [Const
        1963, art 1, § 2 (emphasis added).]

The second clause in the first sentence of Const 1963, art 1, § 2 guarantees certain civil rights to
all, as it provides that “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.” This guarantee is made to “any person,” without exclusion or qualification.
The official record of the constitutional convention demonstrates that it was unquestionably the
intent of the ratifiers that civil rights protections be extended to any and all persons.7 Indeed, the
record emphasized that art 1, § 2 was in line with the “distinct trend in state constitutions” that
“civil rights clauses apply to all persons . . . .” 1 Official Record, Constitutional Convention
1961, p 740 (emphasis added). A committee report from the constitutional convention states that
the ratifiers intended

        that each of our citizens, all of our citizens, shall enjoy equal protection of the law
        in all areas of living which involve fundamental human rights, fundamental civil
        rights in this our beloved state of Michigan.



6
  In reviewing the constitutionality of the statute, this Court is to presume that the statute is
constitutional, and we are “to construe a statute as constitutional unless its unconstitutionality is
clearly apparent.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 6; 658 NW2d 127 (2003).
7
  “Records of the constitutional convention may be consulted to ascertain the intent of the
provision” at issue. Kuhn v Secretary of State, 228 Mich App 319, 324; 579 NW2d 101 (1998).


                                                 -5-
               Such intent, the intent that each of Michigan’s citizens have “equal access”
       to the “fundamental rights in our complex society” . . . should in our opinion be
       stated simply and clearly . . . .” [1 Official Record, Constitutional Convention,
       1961, p 741 (emphasis added).8]

        While the second clause of the first sentence mandates to whom protections are to apply,
the second sentence of art 1, § 2 imposes a mandate on the Legislature: “[t]he legislature shall
implement this section by appropriate legislation.” The directive given to the Legislature is a
mandatory one. See Co Rd Assoc of Mich v Governor, 260 Mich App 299, 306; 677 NW2d 340
(2004), aff’d in part 474 Mich 11 (2005) (when interpreting a provision of the Michigan
Constitution, “[i]t is well-established that the use of the word ‘shall’ rather than ‘may’ indicates a
mandatory, rather than discretionary, action.”). Thus, when read in combination, Const 1963, art
1, § 2 provides that the Legislature must enact legislation protecting the rights of any or all
persons, without limitation. In short, art 1, § 2 required the enactment of legislation designed to
protect the civil rights of all, and the mandatory nature of such language makes apparent that the
Legislature was without authority to exclude anyone from protection under the resulting
legislation.

           2. THE LEGISLATURE COMPLIES WITH MANDATORY ENABLING
                             ACT REQUIREMENTS

        In response to the mandate imposed by our Constitution, the Legislature enacted the Civil
Rights Act, now known as the Elliot-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.
The act was intended to “centralize and make uniform the patchwork of then-existing civil rights
statutes” in the private sector and to “broaden the scope of the then-existing civil rights statutes
to include governmental action.” Neal v Department of Corrections (Neal II), 232 Mich App
730, 738; 592 NW2d 370 (1998). See also Forton v Waterford Twp Dep’t of Parks &
Recreation, 425 Mich 173, 186; 387 NW2d 821 (1986). The ELCRA provides that a person
shall not

       “[d]eny 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) (emphasis added).




8
  Although various drafts of art 1, § 2 were proposed throughout the process of drafting the
Constitution, the notion that “each person” was entitled to civil rights protection or that “no
person” shall be denied civil rights was maintained throughout the constitutional convention. 1
Official Record, Constitutional Convention 1961, p 739-742, 749, 995; 2 Official Record,
Constitutional Convention 1961, p 2887-2889.


                                                 -6-
MCL 37.2301(b), as enacted in 1976, defined “public service” as

       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.


The above definition of public service remained unchanged for over 20 years.

        In the mid 1990s, a group of women housed in facilities operated by the MDOC filed a
class-action suit against the MDOC alleging that male corrections personnel were
systematically engaging in a pattern of sexual harassment of female inmates. Neal v Dep’t of
Corrections, 230 Mich App 202; 583 NW2d 249 (1998) (Neal I). Specifically, plaintiffs
complained that

       the MDOC assigns male officers to the housing units at all women's facilities
       without providing any training related to cross-gender supervision; that women
       are forced to dress, undress, and perform basic hygiene and body functions in the
       open with male officers observing; that defendants allow male officers to observe
       during gynecological and other intimate medical care; that defendants require
       male officers to perform body searches of women prisoners that include pat-
       downs of their breasts and genital areas; that women prisoners are routinely
       subjected to offensive sex-based sexual harassment, offensive touching, and
       requests for sexual acts by male officers; and that there is a pattern of male
       officers' requesting sexual acts from women prisoners as a condition of retaining
       good-time credits, work details, and educational and rehabilitative program
       opportunities. [Id at 205.]

In Neal I, this Court initially held that prisons were not a place of “public service” as the term is
used in the ELCRA. Id. at 215. However, on rehearing, this Court held that prisons are places of
“public service” and that the ELCRA was intended to protect prisoners, among others. Neal II,
232 Mich App at 736-738.

     3. IN RESPONSE TO NEAL, THE LEGISLATURE ATTEMPTS TO CARVE OUT
 PRISONERS FROM ALL CIVIL RIGHTS PROTECTIONS UNDER THE ENABLING ACT

        In response to Neal II, in 1999 the Legislature attempted to carve out from protection
under the ELCRA one subset of individuals—persons in our state who are incarcerated. To do
so, the Legislature amended the definition of “public service” as the term is used in the ELCRA.
The term “public service” is now defined in the statute to mean:

       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).]


                                                -7-
As if there were any doubt that the 1999 amendment was intended to specifically exclude
prisoners, 1999 PA 202 stated that the amendment to the ELCRA 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.

In light of that clear intention to exclude prisoners from the scope of the ELCRA’s protections, it
is undisputed that the 1999 amendment would prohibit the instant litigation. The remaining
inquiry, in my mind, should focus on whether the Legislature had authority to enact such an
exclusion in the first instance.

        C. THE 1999 AMENDMENT VIOLATES A CONSTITUTIONAL MANDATE

         The parties and the majority frame the issue at hand as one calling for a determination of
whether the 1999 amendment to the ELCRA violates equal protection by denying prisoners, as a
class, protections under the ELCRA. In my opinion, this focus is directed at the wrong section of
Const 1963, art 1, § 2. I believe that the analysis misses a more significant and dispositive issue.
That is, whether the Legislature has authority, given the constitutional directive in Const 1963,
art 1, § 2 pertaining to all citizens, to carve out a particular class of individuals and exclude them
from the protections of the ELCRA.

       I would hold that the Legislature acted outside of its constitutional authority by removing
prisoners from the scope of the ELCRA and thereby denying protection to all. Where the
analysis in this case should start, and end, in my opinion, is with the idea that Const 1963, art 1,
§ 2 contains more than just the guarantee of equal protection of the laws; it contains a directive to
the Legislature to implement legislation that protects the rights of all citizens. Again, that clause
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. The
       legislature shall implement this section by appropriate legislation. [Const 1963,
       art 1, § 2 (emphasis added).]

As noted, the necessary corollary of the phrase “nor shall any person be denied the enjoyment of
his civil rights” is that all persons, without exclusion, are entitled to have certain civil rights
protected by “appropriate legislation.” The problem with the 1999 amendment to the ELCRA is
that, by excluding a certain class of individuals—prisoners—from the protections of the ELCRA,
the Legislature has acted in a way that is contrary to Const 1963, art 1, § 2.9



9
 From the outset, the 1999 amendment was a legislative attempt to exclude prisoners from
ELCRA protection, following the State being held accountable for the assault of female prisoners

                                                 -8-
         Thus, rather than honoring the constitutional mandate to implement civil rights legislation
as to “all,” the 1999 amendment expressly excludes prisoners from any protection under the
ELCRA. The mandates and directives of Const 1963, art 1, § 2 could not have been clearer.
Const 1963, art 1, § 2 did not state that the Legislature “shall implement” the civil rights
guarantees provided to those whom it deems worthy of receiving such protection. Rather, the
constitution clearly and explicitly provides that “[n]o person” shall be denied equal protection”
“nor shall any person be denied” the enjoyment of his civil rights. Such language leaves no
room for reservation or qualification. The Legislature cannot ignore that plain, unambiguous
constitutional mandate. Indeed, “[a] fundamental and indisputable tenet of law is that a
constitutional mandate cannot be restricted or limited by the whims of a legislative body through
the enactment of a statute.” AFSCME Council 25 v Wayne Co, 292 Mich App 68, 93; 811
NW2d 4 (2011). Given that the resulting civil rights legislation was to apply to “any person”
without limitation, the Legislature could no sooner enact an amendment to the ELCRA excluding
prisoners from the scope of the statute as it could decide to exclude from the act blue-eyed
individuals, African-Americans, or anyone named “Steve.” See id. See also Durant v State Bd
of Ed, 424 Mich 364, 392; 381 NW2d 662 (1985) (“The state may not avoid the clear
requirements [of a constitutional mandate] either by specific statute or by implementation of
definitions adverse to the mandate of the people.”). To the extent a statute infringes on a
constitutional directive, the statute must “succumb to the primacy of the Michigan Constitution.”
AFSCME Council 25, 292 Mich App at 95. Because the 1999 amendment excluding prisoners
from protection under the ELCRA is incongruous with the directives contained in Const 1963,
art 1, § 2, it violates the Michigan Constitution and cannot stand.10 Where the ratifiers saw fit to
extend the protections under Const 1963, art 1, § 2, to “any person,” the Legislature was without
authority to enact legislation denying those protections to a particular group of individuals. See
id.

       To this end, the instant situation is analogous to our Supreme Court’s decision in Midland
Cogeneration Venture Ltd Partnership v Naftaly, 489 Mich 83; 803 NW2d 674 (2011). That
case concerned whether MCL 211.34c(6) could prevent aggrieved parties from appealing a
decision of the state tax commission regarding classification complaint decisions. Id. at 87-88.
The constitutional provision at issue, Const 1963, art 6, § 28, guaranteed judicial review of
administrative decisions—assuming the administrative decision met certain requirements—and
provided that those decisions “shall be subject to direct review by the courts as provided by law.”

in Neal II. Indeed, as noted, 1999 PA 202 was never shy about the notion that it expressly
intended to exclude prisoners from the scope of protection under the ELCRA. The act stated that
“[t]his 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.”
10
   In this regard, it matters not whether prisoners, although they are excluded from the
protections of the ELCRA, can obtain injunctive or declaratory relief for certain civil rights
violations under Const 1963, art 1, § 2. Instead, what matters is what the constitution requires—
that the Legislature enact statutes protecting the civil rights of all—and what the Legislature
did—it enacted statutes protecting the civil rights of all, except for prisoners. The decision to
exclude prisoners violated the “any person” mandate and is unconstitutional.


                                                 -9-
(Emphasis added). The defendants in that case argued that the “as provided by law” language
meant that the Legislature could implement limited judicial review. Midland Cogeneration
Venture Ltd Partnership, 489 Mich at 93. This Court agreed. See Iron Mt Info Mgt, Inc v State
Tax Comm, 286 Mich App 616, 621; 780 NW2d 923 (2009). However, our Supreme Court
reversed, holding that while “as provided by law” meant that the Legislature could enact
legislation as to the manner in which judicial review occurred, it could not preclude judicial
review, as such judicial review was mandated by the Constitution. Midland Cogeneration
Venture Ltd Partnership, 489 Mich at 94. The Court held that “[t]he Legislature may not
eradicate a constitutional guarantee in reliance on the language” in the same constitutional
amendment granting certain implementation authority to the Legislature. Id. Further, the Court
explained that the implementing language at issue in that case did “not grant the Legislature the
authority to circumvent the protections that the section guarantees. If it did, those protections
would lose their strength because the Legislature could render the entire provision mere
surplusage.” Id. at 95.

        Turning back to the instant case, the Legislature is not permitted, pursuant to the
implementation language contained in Const 1963, art 1, § 2, to define the persons to whom civil
rights are guaranteed. The Constitution already answers that question, unequivocally
guaranteeing that legislation to protect civil rights must be extended to all, without reservation or
limitation. Any implementation language contained in Const 1963, art 1, § 2 should not be
construed as giving the Legislature “the authority to circumvent the protections that the section
guarantees.” See id. If it did, just as the Court cautioned in Midland Cogeneration Venture Ltd
Partnership, the protection of “any person” would “lose [its] strength” and the Legislature would
render meaningless such protection. See id. Consequently, I would find that the 1999
amendment, by eradicating a constitutional guarantee, violates Const 1963, art 1, § 2.

        Moreover, our Supreme Court in Sharp v Lansing, 464 Mich 792; 629 NW2d 873 (2001),
has recognized that the implementation mandate found in Const 1963, art 1, § 2 does not confer
discretion on the Legislature to change the mandated protections found in art 1, § 2. Despite the
fact that it was given authority to implement the constitutional protections at issue, the
Legislature was not given authority to define those protections in a manner that was inconsistent
with the Constitution.

       While the second sentence of art 1, § 2 commits its affirmative “implementation”
       to the Legislature, the first sentence of this constitutional provision commands
       that “[n]o 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.”
       The duty imposed on the Legislature by the second sentence of art 1, §
       2 to implement art 1, § 2 is not a power to ultimately define the substantive
       meaning of the first sentence. [Sharp, 464 Mich at 801-802.]

Here, the Legislature went beyond its authority of implementing art 1, § 2 by “appropriate
legislation” and attempted to define the meaning of the constitutional mandate by narrowing the
scope of protected individuals. Where the constitution mandated that the Legislature was to
provide “by appropriate legislation” certain protections to everyone, without reservation or
limitation, the Legislature was not justified in excluding some from that protection.

                                                -10-
       As further illustration of the constitutional violation occasioned by the 1999 amendment,
I compare the instant constitutional provision to Const 1963, art 4, § 52, which provides for the
preservation of natural resources and requires the Legislature to take action to do so:

       The conservation and development of the natural resources of the state are hereby
       declared to be of paramount public concern in the interest of the health, safety and
       general welfare of the people. The legislature shall provide for the protection of
       the air, water and other natural resources of the state from pollution, impairment
       and destruction. [Emphasis added.]

“[I]t is clear that [the second sentence of art 4, § 52] must be read as a mandatory command to
the legislature.” State Hwy Comm v Vanderkloot, 392 Mich 159, 180; 220 NW2d 416 (1974)
(opinion by WILLIAMS, J). See also Genesco, Inc v Mich Dep’t of Environmental Quality, 250
Mich App 45, 54; 645 NW2d 319 (2002) (recognizing that the duty imposed on the Legislature
to protect the state’s natural resources is mandatory).11 Consider the following hypothetical
scenarios. Consistent with the mandate in Const 1963, art 4, § 52, could the Legislature decide
that the protection of water and other natural resources was desirable, but deem the protection of
air too inconvenient, and enact legislation stating that there are to be no regulations as to air
quality or air pollution? Or, for that matter, could the Legislature decide to protect air, water,
and natural resources from destruction, but enact legislation stating that there was to be no
regulation, whatsoever, with regard to the pollution of those same resources? Surely no one
would argue that these hypothetical legislative enactments would be constitutional, as they
clearly violate the constitutional mandate set forth in Const 1963, art 4, § 52. Yet, that is
precisely what has occurred in this case. In enacting the 1999 amendment to the ELCRA, the
Legislature has declined to honor the entire constitutional mandate found in Const 1963, art 1,
§ 2.

        As a result, I would hold that the 1999 amendment to the ELCRA is unconstitutional. I
would affirm the trial court’s ruling, albeit for the reasons stated above rather than finding that
the statute violates equal protection guarantees. See Messenger v Ingham Co Prosecutor, 232
Mich App 633, 643; 591 NW2d 393 (1998) (“When this Court concludes that a trial court has
reached the correct result, this Court will affirm even if it does so under alternative reasoning.”).
Given this conclusion, there is no need to evaluate the exclusion of prisoners from the scope of
the ELCRA on equal protection grounds.12 The analysis of the constitutionality of the 1999
amendment should begin with the directive given to the Legislature in Const 1963, art 1, § 2 and
end with the conclusion that the 1999 amendment is constitutionally infirm because it is contrary
to the directive contained in art 1, § 2. See Midland Cogeneration Venture Ltd Partnership, 489
Mich at 94; AFSCME Council 25, 292 Mich App at 93.



11
   To comply with this constitutional provision, the Legislature enacted what is now known as
the Natural Resources and Environmental Protection Act, MCL 324.101, et seq. See Genesco,
250 Mich App at 54.
12
  Nevertheless, as discussed below, I would find that the amendment cannot withstand an equal
protection challenge.


                                                -11-
                                   III. EQUAL PROTECTION

        While I find it unnecessary to perform an equal protection analysis, I would agree with
the trial court that the 1999 amendment, even assuming it did not violate the constitutional
authority conferred upon the Legislature, amounted to an equal protection violation.

        “Equal protection is guaranteed under the federal and state constitutions.” Morales v
Mich Parole Bd, 260 Mich App 29, 49; 676 NW2d 221 (2003), citing US Const, Am XIV; Const
1963, art 1, § 2. The Equal Protection Clause requires that all persons similarly situated be
treated alike under the law; it does not guarantee that people in different circumstances will be
treated the same. Shepherd Montessori Ctr Milan, 486 Mich at 318; In re Parole of Hill, 298
Mich App 404, 420; 827 NW2d 407 (2012). “Courts apply one of three tests when reviewing a
party’s challenge of a legislative classification as violative of equal protection. Which test
applies depends on the type of classification made by the statute and the nature of the interest
affected.” Proctor v White Lake Twp Police Dep’t, 248 Mich App 457, 469; 639 NW2d 332
(2001). Because the legislation at issue neither infringes on a fundamental right nor involves a
suspect class or quasi-suspect class, rational basis review applies. Shepherd Montessori Ctr
Milan v Ann Arbor Charter Twp, 486 Mich 311, 318-319; 783 NW2d 695 (2010).

                                   1. SIMILARLY SITUATED

        As a threshold matter, I would find that plaintiffs, who are prisoners, are similarly
situated to non-prisoners in regard to the legislation at issue concerning the protection of a
person’s civil rights. “In typical equal protection cases, plaintiffs generally allege that they have
been arbitrarily classified as members of an identifiable group.” Davis v Prison Health Servs,
679 F3d 433, 441 (CA 6, 2012) (citation and quotation marks omitted). See also Engquist v
Oregon Dep’t of Agriculture, 553 US 591, 601; 128 S Ct 2146; 170 L Ed 2d 975 (2008).
Plaintiffs, as an identifiable group, i.e., prisoners,13 are being treated differently than non-
prisoners. The question then becomes: are prisoners and non-prisoners similarly situated? This
inquiry does not focus on whether the two groups are similarly situated in general, nor is it
relevant whether courts have found that prisoners and non-prisoners are not similarly situated in
different, unrelated contexts.14 Rather, “[t]he similarly situated inquiry focuses on whether the


13
   This Court has, in rejecting the assertion that state prisoners are a suspect class, treated
prisoners as an identifiable group for purposes of equal protection claims. See People v Groff,
204 Mich App 727, 731; 516 NW2d 532 (1994).
14
   In concluding that plaintiffs, as prisoners, are not similarly situated to non-prisoners, the
majority opinion cites several cases in support of its conclusion. However, the analysis in those
cases involved issues that were quite different from the issue in the case at bar, and I find those
cases do not resolve the similarly situated issue here. For instance, the majority cites Samson v
California, 547 US 843, 848; 126 S Ct 2193; 165 L Ed 2d 250 (2006), and Hudson v Palmer,
468 US 517, 525-526; 104 S Ct 3194; 82 L Ed 2d 393 (1984); however, those cases simply
stated that prisoners—or probationers in the case of Sampson—do not enjoy the same liberties as
the average citizen does. The other cases cited by the majority pertained to issues that are
unrelated to the challenged governmental action in this case. See Niemic v UMass Correctional


                                                -12-
plaintiffs are similarly situated to another group for purposes of the challenged government
action.” Klinger v Dep’t of Corrections, 31 F3d 727, 731 (CA 8, 1994) (emphasis added).
Hence, the issue is whether plaintiffs are similarly situated to non-prisoners in regard to their
entitlement to civil rights protection and the ability to seek redress from the government for civil
rights violations. This inquiry requires consideration of whether plaintiffs are similar to non-
prisoners “in all relevant respects,” but does not require that plaintiffs are identical to non-
prisoners in all respects. See Nordlinger v Hahn, 505 US 1, 10; 112 S Ct 2326; 120 L Ed 1
(1992) (“It [the Equal Protection Clause] keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike.”).

        Although it is axiomatic that prisoners and non-prisoners are not similarly situated in
every respect, I would find that, for purposes of the challenged governmental action in this case,
they are similarly situated in all relevant respects. I see no reason why prisoners are any
different in regard to their entitlement to remedying civil rights violations. Just like non-
prisoners, prisoners are interacting with and receiving at least some level of services from the
government on a regular basis. For instance, prisoners receive food, shelter, protection,
discipline at times medical care, and a host of other benefits from the government. See Johnson

Health, __ F Supp 3d __ (D Mass, 2015) (finding that prisoners were not similarly situated to
non-prisoners for purposes of administering certain medical treatment); Pratt v GEO Group, Inc,
802 F Supp 2d 1269, 1272 (WD Okla, 2011) (declaring that prisoners were not similarly situated
to non-prisoners for purposes of applying the statute of limitations to certain claims); Hertz v
Carothers, 174 P3d 243, 248 (Alas, 2008) (prisoners were not similarly situated to non-prisoners
for purposes of certain filing fees); McGuire v Ameritech Servs, Inc, 253 F Supp 2d 988, 1001
(SD Ohio, 2003) (prisoners and non-prisoners were not similarly situated for purposes of claims
relating to collect telephone calls between prisoners and non-prisoners); Smith v Corcoran, 61
Fed Appx 919 (CA 5, 2003) (prisoners not similarly situated to non-prisoners for purposes of a
claim that the postal inspector unjustly refused to investigate the plaintiff’s claim of mail
tampering); Roller v Gunn, 107 F3d 227, 234 (CA 4, 1997) (prisoners and non-prisoners not
similarly situated with regard to the payment of certain filing fees); Rudolph v Cuomo, 916 F
Supp 1308, 1323 (SD NY, 1996) (held that prisoners were not similarly situated to non-prisoners
for purposes of obtaining an indigency waiver for Motor Vehicle and Parks laws on surcharges);
Scher v Chief Postal Inspector, 973 F2d 628, 683-684 (CA 8, 1992) (prisoners not similarly
situated to non-prisoners for purposes of complaints about mail tampering); Hrbek v Farrier, 787
F2d 414, 417 (CA 8, 1986) (prisoners were not similarly situated as non-prisoners with regard to
a claim that prison officials’ withholding of a portion of wages earned by an inmate on work
release).
       Lastly, I find the primary Michigan case on which the majority relies, People v Maxson,
181 Mich App 133, 135; 449 NW2d 422 (1989), to be distinguishable. Contrary to the
majority’s conclusions, I find that the entitlement to civil rights while receiving services from the
government is markedly different, for constitutional purposes, than a situation concerning
whether prisoners and non-prisoners are similarly situated in respect to a prosecutor’s decision
about whether to prosecute the possession of metallic knuckles. One involves certain rights that
are otherwise guaranteed to all, and the other involves the allocation of prosecutorial resources
being weighed against internal prison disciplinary decisions.


                                                -13-
v Wayne Co, 213 Mich App 143, 152; 540 NW2d 66 (1995) (“The Eighth Amendment imposes
duties on prison officials to provide humane conditions of confinement, ensure that inmates
receive adequate food, shelter, and medical care, and take reasonable measures to guarantee the
safety of the inmates.”).15 See also Neal II, 232 Mich App at 736-737. Nothing about the nature
of their confinement suggests that prisoners should be treated any differently than non-prisoners
with regard to civil rights protections. It has never been argued in this case that there are any
safety justifications for treating prisoners and non-prisoners differently in regard to their ability
to claim protections to civil rights. Nor do any such safety concerns seem apparent in this case.
In short, prisoners and non-prisoners are similar in respect to their entitlement to civil rights
protections in their interactions with the government. Therefore, I would find that, for purposes
of claiming redress for violation of their civil rights, prisoners are similarly situated to non-
prisoners in regard to receiving certain benefits and services from the State.

        Defendants argue, and the majority agrees, that because prisoners receive services and
benefits from the government involuntarily, by nature of the fact that their incarceration is not
voluntary, they are not similarly situated to non-prisoners. While it is true that, but for
involuntary confinement mandated by the State, prisoners would not be inclined to take
residence inside prison walls, I do not believe that the involuntary receipt of services changes the
equation. That is, I do not agree that those who involuntarily interact with the government are
any less deserving of the right to protection of their civil rights and a remedy for violations upon
those rights than those who voluntarily do so. To this end, I would note that nearly all citizens
are compelled, at times, to receive public services in a manner that is somewhat less than
voluntary. For instance, children under a certain age are compelled to attend school,16 to some
degree, yet no one would dispute that children receive public services while they attend public
school. Likewise, litigants may be required, subject to the court’s contempt powers, to appear at
certain court proceedings, but no one would contend that they do not receive public services
simply by virtue of the fact that their presence in court was not entirely voluntary. And, for that
matter, most trips to the Secretary of State offices are not entirely voluntary. For example, if left
to their own accord, most citizens would likely not find it convenient or necessary to register and
pay taxes on a newly-purchased motor vehicle or boat; rather, they do so because the State
requires them to do so. Along a similar vein, prisoners reside in prison and receive certain
services therein because the State mandates that they do so. Furthermore, even assuming that
prisoners were the only ones who received public services in a manner that was less than
voluntary, I fail to see any reason why this prevents prisoners from being similarly situated to
non-prisoners in regard to their entitlement to civil rights. Regardless of whether the receipt of
services is voluntary or involuntary, the fact remains that all citizens are in a position where they
expect, rightfully, to have certain civil rights honored in their respective dealings with the


15
   In fact, one could argue that the average prisoner has far more encounters with government
actors on a daily basis than does the average citizen. Prisoners’ entire existence in prison is
dependent upon and supported by government actors. Thus, in comparison to non-prisoners,
prisoners have far more potential encounters during which they need the protections of the
ELCRA.
16
     See MCL 380.1561, outlining compulsory school attendance as well as certain exceptions.


                                                -14-
government.17 Thus, in my view, prisoners and non-prisoners are similarly situated with regard
to their entitlement to civil rights in dealings with the government because, regardless of a
person’s abode—either behind bars and concrete blocks or in a two-story colonial—he or she is
still entitled to basic civil rights that are otherwise guaranteed to all.

                                2. RATIONAL BASIS REVIEW

        Because I would find that plaintiffs, as prisoners, are similarly situated to non-prisoners
for purposes of the challenged legislation, the salient inquiry becomes whether the classification
drawn in this case can withstand rational basis review. “Under the rational basis test, the
challenged legislation ‘is presumed constitutional, and the party challenging it bears a heavy
burden of rebutting that presumption.’ ” In re Parole of Hill, 298 Mich App at 421, quoting
People v Idziak, 484 Mich 549, 570; 773 NW2d 616 (2009). “Specifically, ‘[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.’ ” In re Parole of Hill, 298
Mich App at 422, quoting Idziak, 484 Mich at 570-571. Rational basis review “is a paradigm of
judicial restraint” and “is not a license for courts to judge the wisdom, fairness, or logic of
legislative choices.” Fed Communications Comm v Beach Communications, Inc, 508 US 307,
313-314; 113 S Ct 2096; 124 L Ed 2d 211 (1993). Indeed, rational basis review acknowledges
that

       Most laws classify, and many affect certain groups unevenly, even though the law
       itself treats them no differently from all other members of the class described by
       the law. When the basic classification is rationally based, uneven effects upon
       particular groups within a class are ordinarily of no constitutional concern.
       [Personnel Admin of Massachusetts v Feeney, 442 US 256, 271-272; 99 S Ct
       2282; 60 L Ed 2d 870 (1979).]

        Nevertheless, the United States Supreme Court has cautioned, “even the standard of
rationality as we so often have defined it must find some footing in the realities of the subject
addressed by the legislation.” Heller v Doe, 509 US 312, 321; 113 S Ct 2637; 125 L Ed 2d 257
(1993). “The State may not rely on a classification whose relationship to an asserted goal is so
attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, Texas v
Cleburne Living Ctr, 473 US 432, 446; 105 S Ct 3249; 87 L Ed 2d 313 (1985). When a right is
afforded, “it cannot be granted to some litigants and capriciously or arbitrarily denied to others
without violating the Equal Protection Clause.” Lindsey v Normet, 405 US 56, 77; 92 S Ct 862;


17
   I acknowledge that prisoners do not enjoy all the rights of non-prisoners. Among others,
prisoners are subject to having all telephone calls and other communications monitored, are
subject to searches and seizures without a warrant, and have various other freedoms curtailed for
purposes of safety and other legitimate reasons. Nevertheless, I do not believe that this changes
the equation. The pertinent analysis concerns not whether prisoners and non-prisoners are
similarly situated with regard to those freedoms; instead, the analysis concerns whether the two
groups are similarly situated for purposes of seeking redress for civil rights violations. I see no
meaningful reason to treat the groups differently for that purpose.


                                               -15-
31 L Ed 2d 36 (1972). “Furthermore, some objectives—such as a bare desire to harm a
politically unpopular group are not legitimate state interests.” City of Cleburne, 473 US at 446-
447 (citation and quotation marks omitted). See also United States v Windsor, __ US __; 133 S
Ct 2675, 2693; 186 L Ed 2d 808 (2013); United States Dep’t of Agriculture v Moreno, 413 US
528, 534; 93 S Ct 2821; 37 L Ed 2d 782 (1973).

           C. THE CHALLENGED LEGISLATION LACKS A RATIONAL BASIS

        Even under the deferential rational basis standard, I would find that the classification
drawn in this case, which prevents prisoners, but no one else, from seeking relief under the
ELCRA, violates equal protection. Like the court in Mason v Granholm, unpublished opinion of
the Eastern District Court of Michigan, issued January 23, 2007 (Docket No. 05-73943),18 my
reasoning on this issue is guided by the Supreme Court’s decision in Romer v Evans, 517 US
620; 116 S Ct 1620; 134 L Ed 2d 855 (1996). At issue in Romer was an amendment to the
Colorado Constitution, “Amendment 2,” which prohibited all legislative, executive, or judicial
action at any level of state or local government designed to protect homosexual individuals. Id,
517 US at 623-624. The Court held that Amendment 2 failed rational basis review for two
reasons. First, “the amendment has the peculiar property of imposing a broad and
undifferentiated disability on a single named group, an exceptional and, as we shall explain,
invalid form of legislation.” Id. at 632. The amendment was “at once too narrow and too broad.
It identifies persons by a single trait and then denies them protection across the board.” Id. at
633. The Court explained that “[e]qual protection of the laws is not achieved through
indiscriminate imposition of inequalities.” Id. (citations and quotation marks omitted).

       Respect for this principle explains why laws singling out a certain class of citizens
       for disfavored legal status or general hardships are rare. 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. [Id.]

        As for the second reason identified by the Romer Court for concluding that Amendment 2
failed rational basis review, the Court found that the “shear breadth” of the amendment was “so
discontinuous with the reasons offered for it that the amendment seems inexplicable by anything
but animus toward the class it affects . . . .” Id. at 632. If the concept of equal protection was to
mean anything, reasoned the Court, “ ‘it must at the very least mean that a bare . . . desire to
harm a politically unpopular group cannot constitute a legitimate governmental interest.’ ” Id. at
634, quoting Moreno, 413 US at 534. The classification in that case could not be explained by
any of the proffered rationales; thus, Amendment 2 did not bear a rational relationship to a
legitimate governmental purpose. Id. at 635.



18
   Plaintiffs argue that this Court is bound by the decision in Mason. I believe the majority
accurately concludes that we are not bound by an unpublished federal district court decision.
The majority also correctly concludes that the application of offensive non-mutual collateral
estoppel is not appropriate in this case.


                                                -16-
        Similarly, where the 1999 amendment falls short is that it paints with far too broad a
brush. It targets a specific group—prisoners—and prevents that group, and only that group, from
filing claims under the ELCRA. As recognized in Romer, 517 US at 633, “[c]entral both to the
idea of the rule of law and to our own Constitution’s guarantee of equal protection is the
principle that government and each of its parts remain open on impartial terms to all who seek its
assistance.” It is for that reason that a law singling out a particular class and imposing hardships
on that class “is itself a denial of equal protection of the laws in the most literal sense.” Id.
Here, the law imposes a hardship—no statutory relief for civil rights violations—on only one
group. The decision to single out this particular group and categorically deny prisoners, and only
prisoners, the ability to seek relief renders the constitutionality of the 1999 amendment doubtful
from the onset. See id.

        Further, just as in Romer, this targeted classification bears no rational relationship to a
legitimate governmental interest. Two primary rationales have been advanced for justifying the
classification at issue: (1) maintaining prison order; (2) preventing frivolous actions and
preserving the public fisc. As to the first proffered rationale, I agree with the majority’s
conclusion that there is no merit to defendants’ assertion that the challenged statute is rationally
related to the legitimate governmental interest of prison order and management. There does not
appear to be any connection between limiting a prisoner’s ability to seek relief under the ELCRA
and maintaining prison order.

         Where I diverge from the majority opinion is in the conclusion that the second offered
purpose—deterrence of frivolous and meritless lawsuits and maintaining the public fisc—does
not suffice as a rational basis in this case. There is no doubt that deterring frivolous lawsuits is
designed to and does protect the public fisc, and that doing so is a legitimate government
purpose. See Barlett v North Ottawa Comm Hosp, 244 Mich App 685, 695; 625 NW2d 470
(2001) (“Deterring the filing of frivolous lawsuits against any party or group is a legitimate
governmental interest.”). Also, it is well established that prisoners, as a group, tend to file more
litigation than non-prisoners. See, e.g., Johnson v Daley, 339 F3d 582, 592 (CA 7, 2003). The
proper inquiry is whether the ends in this case legally justify the means. In other words, is the
connection between preventing frivolous lawsuits by prisoners and maintaining the public fisc
and the decision to deny an identifiable class of individuals protections under the ELCRA—an
act designed to protect the civil rights of all persons—too attenuated such that the classification
is arbitrary? Given the sweeping prohibitions drawn by the classification at issue and that it
completely severs the rights of inmates to seek redress for violations of civil rights—rights which
are regarded as those that should be given the “highest priority,” in terms of protection, see
Barczak v Rockwell Intern Corp, 68 Mich App 759, 763; 244 NW2d 24 (1976), I find the
restriction arbitrary and contrary, if not repugnant, to the ideals of equal protection. The only
discernible purpose of the 1999 amendment is to snuff out all lawsuits filed by prisoners.

        Indeed, rather than targeting frivolous claims, the only purpose of the 1999 amendment is
the elimination of prisoners’ ability to bring claims of any kind under the ELCRA and to limit
the State’s liability in civil rights claims by prisoners. This cannot serve as a legitimate
government purpose. See Johnson, 339 F3d at 612 (ROVNER, J., dissenting) (“The
government . . . does not and cannot argue that [the Legislature] has a legitimate interest in
discouraging meritorious litigation by inmates.”). See also Rodriguez v Brand West Dairy, __
P3d __ (Docks Nos. 33,104; 33,675, issued June 22, 2015, New Mexico Court of Appeals), slip

                                               -17-
op at 15-18 (holding that a New Mexico statute that excluded from the scope of workers’
compensation coverage farm and ranch laborers violated equal protection because the
classification drawn was arbitrary and not rationally related to the goal of preserving resources);
Willoughby v Washington Dep’t of Labor & Indus, 147 Wash 2d 725, 737; 57 P3d 611 (2002)
(invalidating, on equal protection grounds, a statute that barred the distribution of industrial
insurance permanent partial disability benefits to prisoners because the statute was unrelated to a
legitimate governmental purpose and “saving money is not a sufficient ground for upholding an
otherwise unconstitutional statute in any event.”). There is simply no effort in the 1999
amendment to target frivolous claims; rather, the amendment is a blunt and obtuse prohibition on
all claims, regardless of merit, under the ELCRA. Although “equal protection analysis does not
require that every classification be drawn with precise ‘mathematical nicety[,]’ the classification
drawn in this case is more than merely imprecise, “it is wholly without any rational basis.”
Moreno, 413 US at 538. See also Mason, unpub op at *4 (concluding that the ELCRA was “too
broad to be rationally related to” the asserted governmental interests of “deterring frivolous suits
and protecting the public treasury”). In my view, the 1999 amendment’s “sheer breadth is so
discontinuous with the reasons offered for it that the amendment seems inexplicable by anything
but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.”
Romer, 517 US at 632.19



19
   The majority cites cases such as Morales, 260 Mich App at 52 (finding that legislation
precluding prisoners from appealing the decision of the parole board was rationally related to the
legitimate governmental interest in saving funds in response to frivolous requests by prisoners),
and Proctor, 248 Mich App at 469 (no equal protection violation in the Legislature’s decision to
single out incarcerated prisoners with regard to FOIA exclusions, based on the conclusion that
prisoners often file frivolous requests). I find these cases to be unavailing. Initially, the rational
basis analysis in both cases was rather cursory, as Proctor, 248 Mich App at 469, summarily
concluded “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.” The pertinent
analysis in Morales was similarly short, as the opinion cited Proctor and concluded that “the
exclusion of prisoners’ ability under MCL 791.234 to appeal parole denials is 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.” Moreover, the statutes at issue in both cases were significantly different from the 1999
amendment to the ELCRA. Notably, the ELCRA places an outright ban on all prisoner actions
under the ELCRA, a ban which is contrary to the constitutional directive contained in Const
1963, art 1, § 2. By contrast, Morales dealt with parole, a right to which prisoners are not
entitled. And, the prisoners in Morales were afforded at least some review of their parole
eligibility, as the parole board had to first make a determination as to eligibility; here, by
comparison, the 1999 amendment cuts off all review from the outset. As to Proctor, I would not
consider the denial of a FOIA request to be of the same importance as an individual’s ability to
seek redress for constitutionally guaranteed civil rights. Moreover, I would note that the
existence of the PLRA makes the instant case different from both Morales and Proctor. That is,
the PLRA is already a targeted attempt at curtailing frivolous prisoner litigation with regard to

                                                 -18-
         In addition, I find it significant that, independent of the 1999 amendment, the Legislature
had already enacted several, more targeted statutes designed to ferret out frivolous prison
litigation. These more targeted statutes are found in the PLRA, and include, among others, the
pleading requirements discussed in Issue I, MCL 600.5507, the exhaustion of administrative
remedies, MCL 600.5503(1), various screening provisions that call for dismissal set forth in the
PLRA, including those that impose a duty on courts to review complaints and dismiss frivolous
claims, such as MCL 600.5503(2), MCL 600.5505(2), MCL 600.5509(1)-(2), as well as the list
maintained by the state court administrator’s office of the frivolous civil actions brought by
prisoners concerning prison conditions, MCL 600.5529. “The existence of these provisions
necessarily casts considerable doubt upon the proposition” that the 1999 amendment “could
rationally have been intended to prevent those very same” concerns. See Moreno, 413 US at
536-537 (explaining that where other safeguards in the Food Stamp Act already existed, the
challenged provision, which excluded from eligibility for food stamps those individuals who
resided with non-relatives, was not rationally related to a legitimate governmental purpose and
instead was arbitrary). Given the existence of the much more targeted safeguards in the PLRA, it
is dubious whether the 1999 amendment was intended to target frivolous claims.

        Defendants attempt to rationalize the prohibition placed on prisoners’ abilities to bring
claims under the ELCRA by arguing that prisoners can still seek injunctive and declaratory relief
under the Constitution for civil rights violations; therefore, according to defendants, the
classification is permissible. At first glance, this argument has some appeal, but upon further
inquiry, it is found to be wanting.20 The argument removes the focus from the proper inquiry in
this case. The pertinent inquiry is not concerned with what other avenues of relief are available
to prisoners. Rather, the salient concern focuses on the classification drawn in the statute at issue
and whether that classification is wholly arbitrary or whether it is rationally related to a
legitimate governmental interest. See Baxstrom v Herold, 383 US 107; 86 S Ct 760; 15 L Ed 2d
620 (1966) (focusing on the classification drawn, not external concerns).21 And, as noted above,

prison conditions. The statutes at issue in Morales and Proctor lacked this type of aggressive
safeguard against frivolous actions. Thus, unlike the statutes at issue in Morales and Proctor, the
likelihood that the 1999 amendment was rationally related to the asserted interest of curtailing
frivolous actions is significantly lessened.
20
   I also note that from a practical standpoint, prisoners who cannot afford to fund their own
lawsuit seeking declaratory or injunctive relief would be hard pressed to find anyone but a pro
bono or nonprofit attorney willing to take their case; other than pursuing a case in pro per, the
lack of financial redress effectively limits a prisoner’s access to the courthouse in seeking to
enforce his or her constitutional rights. And again, it is only prisoners who are carved out from
relief under the ELRCA.
21
  I find it particularly troubling that the Legislature would choose to preclude monetary relief for
something as significant as civil rights violations. Civil rights actions have long been recognized
as significant, not only for the litigants but for the public at large. See, e.g., Rivera, 477 US at
574. Not only that, but a damages remedy has been recognized as an integral component of
remedying civil rights violations. See Owen v City of Independence, Mo, 445 US 622, 651; 100
S Ct 1398; 63 L Ed 2d 673 (1980) (“A damages remedy against the offending party is a vital
component of any scheme for vindicating cherished constitutional guarantees, and the

                                                -19-
I would conclude that the classification is not rationally related to a legitimate governmental
interest.

        I find the classification drawn in this case particularly troubling in light of the
constitutional mandate established in Const 1963, art 1, § 2, which is emphasized and discussed
in detail in Part II of this opinion. The Constitution prohibits discrimination against “any
person,” and requires the Legislature to implement that directive. In enacting the 1999
amendment at issue, the Legislature, rather than honoring that mandate as to “any person,” has
spurned an identifiable group of individuals. The mandate did not say “all to whom you feel like
giving the privilege”; it said “all” without limitation. In this respect, the Legislation is nothing
but a targeted curtailment of the rights of prisoners to seek the very same relief that all others
enjoy. This targeted curtailment of the right of prisoners to seek the very same relief that is
available to all others appears, in my mind, so incongruous with the purpose of legislation that
was designed to protect civil rights that it is capricious and unrelated to any legitimate
governmental purpose. See Windsor, __ US at __; 133 S Ct at 2693 (“The Constitution’s
guarantee of equality must at the very least mean that a bare congressional desire to harm a
politically unpopular group cannot justify disparate treatment of that group.”); Moreno, 413 US
at 534 (“For if the constitutional conception of ‘equal protection of the laws’ means anything, it
must at the very least mean that a bare congressional desire to harm a politically unpopular group
cannot constitute a legitimate governmental interest.”). See also Mason, unpub op at *4 (noting
that “[t]he ELCRA amendment denies prisoners the basic protections against discrimination that
all others are afforded under Michigan law, as required by” Const 1963, art 1, § 2, and
concluding that “[t]here is no rational basis for denying all prisoners . . . and no one else[ ] the
ability to seek redress for illegal discrimination that occurred in prison.”). Thus, in addition to
demonstrating that the 1999 amendment is unconstitutional because it contravenes the
Legislative mandate, the betrayal of the mandate also illustrates the capriciousness of the
amendment, thereby eroding the asserted rational basis for the legislation.

        I am also troubled by the implications of the majority’s decision. The 1999 amendment
provides no avenue for monetary relief, and, potentially, no redress whatsoever under state law
for any type of discrimination not articulated in Const 1963, art 1, § 2, e.g., discrimination based
on age, sexual orientation, marital status, or gender. With no threat of a monetary judgment, or,
perhaps in some cases, any judgment at all, no state law would stand in the way of prisons and
prison officials intentionally discriminating against prisoners based on certain qualifications that
would be prohibited in all other walks of life. For instance, the majority’s decision would
provide no remedy under state law if prison officials, with no consideration of security concerns
or other penological interests, simply denied certain services or benefits, such as educational
classes, exercise time, or countless others, to certain classifications of prisoners with no
ramification under the ELCRA. And, for that matter, there would be no damages available under

importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that
has been established to protect the very rights it has transgressed.”); Davis v Passman, 442 US
228, 245; 99 S Ct 2264; 60 L Ed 2d 846 (1979). Further, damages have been recognized as
“particularly beneficial” in cases such as this one that allege “those ‘systemic’ injuries that result
not so much from the conduct of any single individual, but from the interactive behavior of
several government officials . . . .” Owen, 445 US at 652.


                                                -20-
the ELCRA if prison officials drew those classifications based on prisoners’ race. And, the
majority’s decision would provide no remedy under state law against sexual harassment—a type
of sexual discrimination, per MCL 37.2103(i), under the ELCRA. In other words, prison guards
and other officials could perpetuate sexual harassment that would, in all other walks of life, be
unquestionably banned by the ELCRA, and, by some twisted sense of irony, be insulated from
liability under state law by the very same act. As pointed out by plaintiffs, the 1999 amendment
only applies to those serving a sentence of imprisonment. Thus, guards and prison officials
could sexually harass inmates and face no liability under state law, but face liability under the
ELCRA for the very same conduct if it were committed against a visitor to the prison, rather than
an inmate. The simple, arbitrary fact that one victim in this scenario wore an orange jumpsuit
and the other wore street clothes would insulate the guards and prison officials under the
ELCRA. This, in my mind, highlights the capricious nature of the 1999 amendment and why it
cannot withstand even the most deferential rational basis review. See City of Cleburne, 473 US
at 446 (“The State may not rely on a classification whose relationship to an asserted goal is so
attenuated as to render the distinction arbitrary or irrational.”). See also Baxstrom, 383 US at
115 (“The capriciousness of the classification employed by the State is thrown sharply into focus
by the fact that the” benefit at issue was withheld only in regard to certain incarcerated
individuals). The ELCRA, an act designed to protect civil rights, should not be used as a safe
harbor against claims of sex discrimination—or any type of discrimination for that matter.

        The implications of the majority’s decision are even more troubling in light of the fact
that it would completely bar, regardless of the merits of the case, any liability on the part of the
State for the conduct alleged in this case, which was an ongoing and well-documented problem.22
The conduct alleged in this case, sexual assaults committed against young inmates, is not a new
or unheard of problem. The Federal Prison Rape Elimination Act (PREA), 42 USC 15601(4),
enacted in 2003, expressly recognized this very issue, stating that “[y]oung first-time offenders
are at increased risk of sexual victimization. Juveniles are 5 times more likely to be sexually
assaulted in adult rather than juvenile facilities—often within the first 48 hours of incarceration.”
While, for the past 12 years the federal government has been aware of and attempting to
eradicate the very problem alleged to have occurred in this case—the sexual assault of juvenile
prisoners—Michigan has been trying to eliminate the rights of juveniles—and other prisoners—
to seek monetary relief for this and other civil rights violations. I cannot, in good conscience,
countenance this attempt at shirking liability and responsibility.

        In sum, although I find that the issue need not be reached because the unconstitutionality
of the 1999 amendment is apparent for the reasons discussed in Section II of this dissent, I would
conclude that the amendment violates equal protection because it draws a classification between
similarly situated individuals and that classification is not rationally related to a legitimate
governmental interest.




22
  This should not be viewed as a substantive evaluation of the merits of plaintiffs’ claims in the
instant case.


                                                -21-
                                IV. REMAINING ARGUMENTS

        Lastly, defendants argue that the trial court should have granted their motion for
summary disposition under MCR 2.116(C)(8), claiming that plaintiffs failed to adequately allege
that they had notice of the conduct at issue.23 This Court reviews de novo motions for summary
disposition. Citimortgage, Inc v Mortgage Electronic Registration Sys, Inc, 295 Mich App 72,
75; 813 NW2d 332 (2011). Summary disposition is proper under MCR 2.116(C)(8) if “[t]he
opposing party has failed to state a claim on which relief can be granted.” A motion under MCR
2.116(C)(8) tests the legal sufficiency of the complaint on the allegations of the pleadings alone.
Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). A reviewing court on a
(C)(8) motion “must accept as true all factual allegations supporting the claim, and any
reasonable inferences or conclusions that might be drawn from those facts.” Gorman v
American Honda Motor Co, Inc, 302 Mich App 113, 131; 839 NW2d 223 (2013). In addition, a
court must construe all well-pleaded allegations in a light most favorable to the nonmoving
party. Johnson v Pastoriza, 491 Mich 417, 435; 818 NW2d 279 (2012). “A motion under MCR
2.116(C)(8) may be granted only when the claims alleged “are so clearly unenforceable as a
matter of law that no factual development could possibly justify recovery.” Id. (citation and
quotation marks omitted).

        Plaintiffs brought claims under the ELCRA against defendant for sex discrimination
(hostile environment) and age discrimination. Defendants do not address plaintiffs’ claims
individually; instead, they argue that plaintiffs’ claims must fail because they lacked notice of the
alleged harassment. In addition, defendants’ arguments only appear to pertain to plaintiffs’
claims about sex discrimination. As such, I only evaluate defendants’ arguments as to the claims
of sex discrimination.

       Under the ELCRA, discrimination on the basis of sex, which includes, by definition,
sexual harassment, is prohibited. MCL 37.2103(i). The act defines sexual harassment to
include:

       unwelcome sexual advances, requests for sexual favors, and other verbal or
       physical conduct or communication of a sexual nature under the following
       conditions:




23
  Defendants raised this argument before the trial court, but the court did not rule on the matter.
Because the issue was preserved by virtue of defendants having raised it before the trial court,
see Klooster v Charlevoix, 488 Mich 289, 310; 795 NW2d 578 (2011), and because I would
remand for dismissal without prejudice, see Issue I, I find it necessary to weigh in on defendants’
argument.


                                                -22-
                (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).]

The last category is at issue in this case; this type of harassment “is commonly labeled hostile
environment harassment.” Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000).

         To establish hostile environment harassment, a plaintiff in a case such as this one must
prove:

         (1) the [plaintiff] belonged to a protected group;

         (2) the [plaintiff] was subjected to communication or conduct on the basis of sex;

         (3) the [plaintiff] was subjected to unwelcome sexual conduct or communication;

         (4) the unwelcome sexual conduct or communication was intended to or in fact
         did substantially interfere with the [plaintiff’s public services or creates a hostile
         environment with regard to those public services]; and

         (5) respondeat superior. [Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d
         155 (1993).]

        At issue in this case is the fifth element, respondeat superior. Plaintiffs seek to hold
defendants vicariously liable for acts committed by their respective agents. In a hostile
environment claim, an employer may avoid liability for hostile environment harassment if, upon
notice of the alleged harassment, it adequately investigated and took prompt and appropriate
remedial action. Id. Thus, a defendant must have actual or constructive notice of the alleged
harassment before liability will attach. Sheridan v Forest Hills Public Schs, 247 Mich App 611,
621; 637 NW2d 536 (2001). A plaintiff can demonstrate notice if he or she complained to
“higher management” about the harassment, or “by showing the pervasiveness of the harassment,
which gives rise to the inference of knowledge or constructive knowledge.” Id. (citation and
quotation marks omitted). “[N]otice of sexual harassment is adequate if, by an objective
standard, the totality of the circumstances were such that a reasonable employer would have been
aware of a substantial probability that sexual harassment was occurring.” Chambers, 463 Mich
at 319.



                                                 -23-
        Taking the allegations raised in plaintiffs’ complaint as true and construing them in a
light most favorable to plaintiffs, as is required under MCR 2.116(C)(8) review, see Johnson,
491 Mich at 435; Gorman, 302 Mich App at 131, I would find that defendants were not entitled
to summary disposition because factual development could possibly justify recovery on
plaintiffs’ sexual harassment claims. Most notably, I find that because of the pervasiveness of
the harassment and sexual violence alleged, plaintiffs sufficiently pleaded knowledge on the part
of defendants that a hostile environment existed at each of the facilities. Plaintiffs raised
numerous allegations of abuse at all of the correctional facilities. These allegations included
claims that some of the plaintiffs were repeatedly and continuously harassed and/or sexually
assaulted by adult male prisoners. Some plaintiffs were harassed and assaulted at multiple
Michigan Department of Corrections (MDOC) facilities following transfers. According to
plaintiffs’ complaint, some of the assaults/harassment occurred in front of MDOC staff members
and/or were even facilitated at times by MDOC staff opening cell doors to allow prisoners to
commit the assaults. The complaint alleged that the assaults were committed in an open and
obvious manner, and that there was medical evidence documenting some of the sexual assaults.
All of this is in addition to the fact that the complaint alleged that some of the complained-of
sexual assaults were perpetrated by MDOC staff members or that MDOC staff members
threatened to help facilitate sexual assault against plaintiffs as punishment. These facts, taken in
a light most favorable to plaintiffs, show wide-spread, pervasive sexual assaults at several
MDOC facilities.

        Furthermore, regarding the harassment perpetrated by adult male prisoners, all of which
was alleged to have occurred between the fall of 2010 and December 2013, plaintiffs alleged that
the MDOC placed prisoners between the ages of 14 and 17 in adult prisons and that it maintained
a policy of placing 17-year-old prisoners in cells with adult prisoners. Plaintiffs also alleged that
the MDOC failed to separate juvenile prisoners from adult prisoners in various programming,
showers, yards, and eating areas. All of this, despite the fact that the PREA, which was enacted
in 2003, was expressly designed to prevent youthful inmates from being “placed in a housing
unit in which the youthful inmate will have sight, sound, or physical contact with any adult
inmate through use of a shared dayroom or other common space, shower area, or sleeping
quarters.” 28 CFR 115.14. Given the directives of the PREA and the allegations that defendants
took actions that were contrary to those directives, combined with the pervasiveness of the
alleged harassment, I find that plaintiffs sufficiently pleaded facts to establish that defendants
had knowledge or should have had knowledge of a hostile environment in all 10 facilities at
issue. See Chambers, 463 Mich at 319; Sheridan, 247 Mich App at 621. Plaintiffs are not, as
defendants contend, trying to hold defendants “strictly liable” for the alleged sexual assaults.
Rather, they are, as is demonstrated by their numerous allegations, attempting to hold defendants
liable for failing to remedy a hostile environment—an environment that defendants either knew
about or should have known about—based on the facts alleged. Defendants were not entitled to
summary disposition under MCR 2.116(C)(8). See Johnson, 491 Mich at 435.

                                       IV. CONCLUSION

       Because I am bound by existing precedent interpreting the PLRA, I concur with the
majority in regard to the issue of whether dismissal was required under MCL 600.5507(3),
although dismissal would be without prejudice. In all other respects, I respectfully dissent from
the majority decision. I would affirm the trial court’s declaration that the 1999 amendment to the

                                                -24-
ELCRA is unconstitutional; however, I would do so on the alternate ground that the statutory
amendment contravenes the clear and express directive given to the Legislature in Const 1963,
art 1, § 2 to protect the civil rights of all persons. I would also find that the amendment is
unconstitutional because it fails the rational basis test. Finally, I would find that plaintiffs
pleaded sufficient claims to survive a motion for summary disposition under MCR 2.116(C)(8).



                                                           /s/ Jane M. Beckering




                                             -25-
