                          STATE OF MICHIGAN

                            COURT OF APPEALS



MELISSA MAYS, MICHAEL ADAM MAYS,                                     UNPUBLISHED
JACQUELINE PEMBERTON, KEITH JOHN                                     May 8, 2018
PEMBERTON, ELNORA CARTHAN, RHONDA
KELSO, BRANDYN CARPENTER, JESSE
CARPENTER, KIMBERLY CARPENTER,
ADAM MURPHY, CHRISTINA MURPHY, and
MICHAEL SNYDER,

               Plaintiffs-Appellees,

v                                                                    No. 338609
                                                                     Court of Claims
GOVERNOR, STATE OF MICHIGAN, and                                     LC No. 17-000066-MZ
ANDY DILLON,

               Defendants-Appellants.


Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.

PER CURIAM.

        Defendants appeal as of right the opinion and order of the Court of Claims granting
plaintiffs’ motion to transfer the case back to the circuit court and dismissing as moot
defendants’ motion for summary disposition. We affirm.

        The underlying facts of this case are commonly referred to as the “Flint water crisis.”
Though these facts are of significant public importance, they are largely irrelevant to this appeal.
Briefly, in April 2014, the City of Flint switched the source of its drinking water from Lake
Huron through the Detroit Water and Sewage Department (DWSD) to the Flint River. This
decision ultimately created a public health emergency for Flint residents because it introduced
significant levels of lead to their water supply. In October 2015, Flint’s water supply was
reconnected to DWSD.

        On February 14, 2017, plaintiffs filed a 92-page second amended complaint in Genesee
Circuit Court. Relevant to defendants in this appeal, plaintiffs alleged that defendants violated
the Elliot Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq. The complaint alleged that
defendants “were under a statutory duty to either provide water services to Plaintiffs so that they
would not be denied the full and equal enjoyment of public water service on account of race, or
they aided and abetted the public service provider to deny Plaintiffs full and equal enjoyment of

                                                -1-
public water service [on] account of race” in violation of MCL 37.2302(a)1 and MCL
37.2701(b).2 According to the complaint, defendants “knew that the water from the Flint River
was grossly inferior to the water Flint and Genesee County citizens had been receiving from
DWSD” and “devised or acquiesced to an Interim Plan that allowed the predominately white
water users of Genesee County to receive safe and superior water from DWSD and the
predominately black water users of Flint would have to accept during the interim period grossly
inferior, previously rejected, and potentially unsafe Flint River Water.” The complaint stated,
“There was no rational economic justification for treating the predominately white water users
from those areas of Genesee County outside of Flint differently than the users of water from
Flint, a predominately African American community.” The complaint concluded,

         Given the unexplained difference in treatment between these two groups of
         similarly situated water users, considering the absence of any rational economic
         or fiscal justification, and taking into account the racial makeup of the community
         that received the grossly inferior and dangerous water product, the deliberate
         decisions and actions of these conspiring Defendants in devising the Interim Plan
         can fairly be said to be the product of racial discrimination in violation of MCL
         37.2302(a).

Alternatively, plaintiffs alleged that if the decision was “race neutral,” then defendants were still
liable because “the impact of” defendants’ decision “had a grossly disparate negative impact on
the predominately African-American and poor water users in the City of Flint.” The complaint
included a jury demand.

       On March 20, 2017, defendants filed notice that the claims against defendants named in
this appeal were transferred to the Court of Claims, effective immediately, pursuant to MCL
600.6404(3). On March 24, 2017, defendants filed a motion for summary disposition pursuant to
MCR 2.116(C)(7) arguing that plaintiffs’ claims against defendants must be dismissed because


1
    MCL 37.2302(a) provides as follows:
         Except where permitted by law, a person shall not:

                  (a) 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.
2
    MCL 37.2701(b) provides as follows:
         Two or more persons shall not conspire to, or a person shall not:

                                                * * *

                  (b) Aid, abet, incite, compel, or coerce a person to engage in a violation of
         this act.



                                                  -2-
plaintiffs failed to comply with the filing requirements for the Court of Claims in MCL
600.6431. According to defendants, the Court of Claims had exclusive jurisdiction over this
action pursuant to MCL 600.6419 and no exceptions to the court’s jurisdiction applied.
Defendants argued that the jury-trial exception, MCL 600.6421(1), to the court’s jurisdiction did
not apply because there was no right to a jury trial in an action under the ELCRA against a state
defendant.

        On March 30, 2017, plaintiffs filed a motion to transfer the case back to the circuit court.
Plaintiffs argued that the Court of Claims did not have exclusive jurisdiction because the
jury-trial exception to that court’s jurisdiction applied. Plaintiffs pointed to Michigan appellate
decisions that held a plaintiff had a jury-trial right in an ELCRA claim against a state defendant.

        On May 16, 2017, the Court of Claims issued its order and opinion. The court
recognized that it was bound to follow appellate decisions holding that a plaintiff had a right to a
jury trial in a claim under the ELCRA against a state defendant. The Court of Claims held that,
therefore, the circuit court had concurrent jurisdiction over plaintiffs’ claims and found that the
circuit court would serve “as the more appropriate venue to resolve the claims against state
defendants” because it would “preserve plaintiffs’ right to trial by jury.” The court also
recognized that “a return transfer [would] advance the efficient and fair administration of justice
by allowing a single trier of fact to resolve all of the claims asserted by plaintiffs against all
defendants.” Accordingly, the Court of Claims granted plaintiffs’ motion to transfer back to the
circuit court and denied as moot defendants’ motion for summary disposition.

         Defendants now appeal.

        MCL 600.6419(1) states, “Except as provided in sections 6421 and 6440, the jurisdiction
of the court of claims, as conferred upon this chapter, is exclusive.” The parties appear to agree
that, if one of these exceptions does not apply, then the Court of Claims has exclusive
jurisdiction over this action pursuant to MCL 600.6419(1)(a).3 The dispute in this case centers
on the exception to the Court of Claims’s jurisdiction in MCL 600.6421(1), which provides in
pertinent part as follows:

         Nothing in this chapter eliminates or creates any right a party may have to a trial
         by jury, including any right that existed before November 12, 2013. Nothing in
         this chapter deprives the circuit, district, or probate court of jurisdiction to hear
         and determine a claim for which there is a right to a trial by jury as otherwise
         provided by law, including a claim against an individual employee of this state for


3
    MCL 600.6419(1)(a) states that the Court of Claims has jurisdiction
         [t]o hear and determine any claim or demand, statutory or constitutional,
         liquidated or unliquidated, ex contractu or ex delicto, or any demand for
         monetary, equitable, or declaratory relief or any demand for an extraordinary writ
         against the state or any of its departments or officers notwithstanding another law
         that confers jurisdiction of the case in the circuit court.


                                                  -3-
       which there is a right to a trial by jury as otherwise provided by law. Except as
       otherwise provided in this section, if a party has the right to a trial by jury and
       asserts that right as required by law, the claim may be heard and determined by a
       circuit, district, or probate court in the appropriate venue.

If plaintiffs had the right to a jury trial in their case against defendants, defendants do not contest
that transfer back to the circuit court was otherwise proper.

        Defendants do not appear to contest that a plaintiff generally has a right to a jury trial
under the ELCRA. Even if they did, a plaintiff’s right to a jury trial under the ELCRA is well
established in Michigan’s caselaw. See Anzaldua v Band, 457 Mich 530, 548; 578 NW2d 306
(1998) (“The CRA and FEPA both contained a right to a jury trial.”); Smith v Univ of Detroit,
145 Mich App 468, 477; 378 NW2d 511 (1985) (recognizing in the context of a case brought
under the ELCRA that “common-law actions for damages for similar discriminatory acts were
recognized prior to the adoption of the 1963 Constitution,” and, “[t]herefore, plaintiffs did indeed
have the right to have a jury determine their action for damages in this case”); King v General
Motors Corp, 136 Mich App 301, 308; 356 NW2d 626 (1984).

       Rather, defendants argue on appeal that this right does not extend to state defendants
because the Legislature did not waive the state’s immunity to jury trial in the ELCRA. We
disagree.

        A challenge to the jurisdiction of the Court of Claims requires interpretation of the Court
of Claims Act, which presents a statutory question reviewed de novo. Parkwood Ltd Dividend
Housing Ass’n v State Housing Dev Auth, 468 Mich 763, 767; 664 NW2d 185 (2003). The
availability of governmental immunity presents a question of law that is reviewed de novo.
Norris v Lincoln Park Police Officers, 292 Mich App 574, 578; 808 NW2d 578 (2011). “Issues
of statutory interpretation are questions of law that are reviewed de novo.” Klooster v City of
Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011).

        “ ‘The State, as sovereign, is immune from suit save as it consents to be sued, and any
relinquishment of sovereign immunity must be strictly interpreted.’ ” Ross v Consumers Power
Co, 420 Mich 567, 601; 363 NW2d 641 (1984), quoting Manion v State, 303 Mich 1, 19; 5
NW2d 527 (1942).

      In resolving this issue, we find instructive our Supreme Court’s reasoning in Anzaldua.4
The Anzaldua Court first addressed whether a plaintiff, in general, had the right to a jury trial


4
  This Court has twice held that a plaintiff has the right to a jury trial when proceeding against a
state defendant under the ELCRA. See Barbour v Dep’t of Social Servs, 172 Mich App 275,
279-281; 431 NW2d 482 (1988); Marsh v Dep’t of Civil Serv, 142 Mich App 557, 569-570; 370
NW2d 613 (1985). As published decisions of the Court of Appeals, the Court of Claims was
required to follow these cases. See MCR 7.215(C)(2); People v Mitchell, 428 Mich 364, 369-
370; 408 NW2d 798 (1987) (explaining vertical stare decisis). However, both cases were
decided before our Supreme Court’s decision in Anzaldua, and neither case expressly addressed


                                                 -4-
under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and the Court held that a
plaintiff did. Anzaldua, 457 Mich at 534-550. The Anzaldua Court then addressed the argument
of the defendant Michigan State University (MSU) that “even if a jury right exists generally
under the act, MSU is immune from suit before a jury because it is an arm of the state.” Id. at
550. Our Supreme Court rejected this argument, reasoning as follows:

               Defendant has confused the test we use to determine whether the state is
       immune from liability with the test used for determining whether the state is
       immune from suit. As the Court noted in Ross v Consumers Power Co (On
       Rehearing), the state’s sovereign immunity from liability and its immunity from
       suit are not the same.

              Defendant MSU and amici curiae argue that the state’s sovereign
       immunity from a trial by jury can be waived only by “express statutory enactment
       or by necessary inference from a statute.” They are incorrect. The quoted
       language comes from this Court’s opinion in Mead v Public Service Comm, 303
       Mich 168, 173; 5 NW2d 740 (1942). In Mead, we examined portions of the
       motor vehicle law, 1929 CL 4724. In ruling on Mead, we overturned one of our
       own prior decisions, Miller v Manistee Co Bd of Rd Comm’rs, 297 Mich 487; 298
       NW 105 (1941). We held that Miller had given the language of the motor vehicle
       law too broad a construction when it extended liability to the state. Mead, supra
       at 172-173.

               In Miller, the Court had construed the motor vehicle law to waive the
       state’s immunity from liability as the owner of a vehicle. Id. at 490. However,
       the motor vehicle law made only the driver of a vehicle liable. The act provided:

                       “The provisions of this act applicable to the drivers of
              vehicles upon the highways, shall apply to the drivers of all
              vehicles owned or operated by this State or any county, city, town,
              district or any other political subdivision of the State subject to
              such specific exceptions as are set forth in this act.” [Mead, supra
              at 172-173, quoting 1929 CL 4724.]

       In overruling Miller, the Court in Mead explained:

                      It is sufficient to note that the above-quoted portion of the
              statute by its express terms affects only the duties and liabilities of
              drivers. It does not enlarge or modify the duties or liabilities of the
              State as owner of a motor vehicle. [Id. at 173.]


whether the Legislature waived the state’s immunity from jury trial in the ELCRA. Although
these cases are not binding on this Court because they were published before November 1, 1990,
MCR 7.215(J)(1), they may be persuasive, In re Stillwell Trust, 299 Mich App 289, 299 n 1; 829
NW2d 353 (2012).


                                               -5-
The motor vehicle law did not, by its express terms or by necessary implication,
provide liability for the state as an owner. Therefore, we held that the state had
not waived its immunity to liability. Id. at 173-174.

        The Whistleblowers’ Protection Act satisfies the Mead test for waiver of
immunity from liability. The Legislature expressly applied the act to the state by
including the state and its political subdivisions in the definition of “employer.”
See MCL 15.361(b); MSA 17.428(1)(b). Because the state is expressly named in
the act, it is within the act’s coverage.

        However, Mead does not provide a test for determining whether a jury
right exists against the state. The Court of Appeals dissent cited Mead for the
proposition that the state’s immunity from suit before a jury could be waived only
by express statutory enactment or by necessary inference. [Anzaldua v Band, 216
Mich App 561, 590; 550 NW2d 544 (1996)] (O’CONNELL, J., dissenting).
However, Mead does not concern the state’s immunity from suit. Rather, the state
was subject to suit in the Court of Claims, and we held merely that it was immune
from liability under the act involved in that case. As we noted above, immunity
from suit and immunity from liability are distinct matters. See Ross, supra at 601.

         Thus, the language from Mead to the effect that the state waives immunity
only by express statutory enactment or by necessary inference applies only to the
state’s immunity from liability. It has no application to the state’s immunity from
suit, or to immunity from trial before a jury, which is at issue here.

        The rule for immunity from suit was recognized by this Court in Ross:
“ ‘The State, as sovereign, is immune from suit save as it consents to be sued, and
any relinquishment of sovereign immunity [from suit] must be strictly
interpreted . . . .’ ” Id. at 601, quoting Manion v State Hwy Comm’r, 303 Mich 1,
19-21; 5 NW2d 527 (1942).

        The Legislature created the Court of Claims in 1939, permitting the state
to be sued before a judge. Ross, supra at 600. The broad language of the act
creating the Court of Claims mandates that suits against the state for money
damages are typically brought in that forum. Id. See MCL 600.6419; MSA
27A.6419.

        As Ross makes clear, the Legislature was free when enacting the
Whistleblowers’ Protection Act to waive the state’s immunity from suit. Ross,
supra at 601. Section 3 of the act allows suit to be brought in the circuit courts.
The statute specifically includes the state among the bodies to be regulated by
defining “employers” subject to the act to include the state and its political
subdivisions. Nothing in the act suggests that the state is not to be treated the
same as a business for purposes of the act’s protection of noncivil service
employees like the plaintiff. We find it significant that the Legislature chose to
subject the state to suit in the circuit court rather than in the Court of Claims.


                                        -6-
               The express language of the act indicates that the Legislature intended to
       submit the state to the jurisdiction of the circuit court. As indicated above, the
       court rules govern in civil actions in circuit court. They provide that legal actions
       for money damages are to be tried by a jury upon request. Hence, it necessarily
       follows, the Legislature consented that the state may be tried by a jury in
       Whistleblowers’ Protection Act cases.

               We uphold the result reached by the Court of Appeals on the question
       whether the case against MSU may be tried by a jury. We find that MSU is
       subject to a trial by jury under the Whistleblowers’ Protection Act as provided by
       the court rules, generally. Plaintiff is entitled to a jury in her suit against both
       defendants. [Anzaldua, 530 Mich at 550-554 (footnote omitted; some alterations
       in original).]

        The WPA is constructed similarly to the ELCRA, see id. at 545-548, and, therefore, we
find our Supreme Court’s interpretation of the WPA to be instructive for how the ELCRA should
be interpreted. Like MSU in Anzaldua, defendants in this case argue that they are not subject to
a jury trial because the Legislature did not waive the state’s immunity from jury trials in the
ELCRA. And like MSU’s argument in Anzaldua, defendants’ argument fails.

       MCL 37.2302 provides as follows:

       Except where permitted by law, a person shall not:

                (a) 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.

And MCL 37.2103 provides, in relevant part, as follows:

       As used in this act:

                                             * * *

              (g) “Person” means an individual, agent, association, corporation, joint
       apprenticeship committee, joint stock company, labor organization, legal
       representative, mutual company, partnership, receiver, trust, trustee in bankruptcy,
       unincorporated organization, the state or a political subdivision of the state or an
       agency of the state, or any other legal or commercial entity.

                (h) “Political subdivision” means a county, city, village, township, school
       district, or special district or authority of the state. [Emphasis added.]

Based on the foregoing, “[t]he Legislature expressly applied the act to the state by including the
state and its political subdivisions in the definition” of “person.” Anzaldua, 457 Mich at 551.
Therefore, like the WPA, the ELCRA satisfies “the Mead test for waiver of immunity from
liability.” Id. at 551; see also John Does 11-18 v Dep’t of Corrections, ___ Mich App ___, ___;

                                               -7-
___ NW2d ___ (2018) (Docket Nos. 332536, 335440, 335527); slip op at 8 (“Contrary to
defendants’ assertions, the law is clear that governmental immunity does not apply to ELCRA
claims.”).

        However, this does not resolve whether the Legislature in the ELCRA waived the state’s
“immunity from suit, or to immunity from trial before a jury, which is at issue here.” Anzaldua,
457 Mich at 552. A cause of action under the ELCRA is provided in MCL 37.2801, which states
as follows:

              (1) A person alleging a violation of this act may bring a civil action for
       appropriate injunctive relief or damages, or both.

               (2) An action commenced pursuant to subsection (1) may be brought in the
       circuit court for the county where the alleged violation occurred, or for the county
       where the person against whom the civil complaint is filed resides or has his
       principal place of business.

             (3) As used in subsection (1), “damages” means damages for injury or loss
       caused by each violation of this act, including reasonable attorney's fees.
       [Emphasis added.]

        When enacting the ELCRA, the Legislature was free to waive the state’s immunity from
suit. See Anzaldua, 457 Mich at 553. MCL 37.2302(a) prohibits a “person” from denying an
individual the full and equal enjoyment of a public service on the basis of race, and MCL
37.2103(g) includes the state and its political subdivisions in the definition of “person.”
Therefore, it is clear that the Legislature intended for the state and its political subdivisions to be
regulated by and subject to the ELCRA. See Anzaldua, 457 Mich at 553. MCL 37.2801(2)
allows suit under the ELCRA to be brought in circuit court. Nothing in the ELCRA indicates
that the state is to be treated different from any other person, indicating that “the Legislature
chose to subject the state to suit in the circuit court rather than in the Court of Claims.”
Anzaldua, 457 Mich at 553. Therefore, based on “[t]he express language of the act . . . the
Legislature intended to submit the state to the jurisdiction of the circuit court.” Id. And the court
rules governing circuit court allow a party seeking money damages “to be tried by a jury upon
request.” Id. “Hence, it necessarily follows, the Legislature consented that the state may be tried
by a jury in” ELCRA cases. Id. at 553-554. Accordingly, the Legislature waived the state’s
immunity from jury trial in the ELCRA, and plaintiffs were entitled to a jury trial in their action
against defendants.

        Defendants argue that Anzaldua was wrongly decided and that this Court should look to
the United States Supreme Court’s decision in Lehman v Nakshian, 453 US 156; 101 S Ct 2698;
69 L Ed 2d 548 (1981), when deciding this issue. However, Lehman was decided 17 years
before Anzaldua, and as the dissent in Anzaldua recognized, “the majority has not even
attempted to distinguish the logic in Lehman.” Anzaldua, 457 Mich at 561 (WEAVER, J.,
dissenting). And regardless of whether Anzaldua was properly decided, “it is the Supreme
Court’s obligation to overrule or modify case law if it becomes obsolete, and until [that] Court
takes such action, the Court of Appeals and all lower courts are bound by that authority.” State


                                                 -8-
Treasurer v Sprague, 284 Mich App 235, 242; 772 NW2d 452 (2009) (quotation marks and
citation omitted; alteration in original).

       Because the Court of Claims properly transferred the case back to the circuit court,
defendants’ argument that plaintiffs did not follow the procedures necessary to proceed in the
Court of Claims is moot and this Court need not address it. See B P 7 v Bureau of State Lottery,
231 Mich App 356, 359; 586 NW2d 117 (1998).5

       Affirmed.

                                                              /s/ Douglas B. Shapiro
                                                              /s/ Michael J. Kelly
                                                              /s/ Colleen A. O'Brien




5
  In their reply brief, defendants contend that this outcome violates the separation of powers
doctrine. However, defendants cite no law to support this claim, and simply assert their
conclusion in broad terms. Therefore, defendants waived this issue by giving it only cursory
treatment, Blazer Foods, Inc v Rest Properties, Inc, 259 Mich App 241, 252; 673 NW2d 805
(2003) (“[P]laintiffs have waived the issue by giving it such cursory treatment”), and defendants
did not properly present the issue for appeal by raising it for the first time in a reply brief, id.
(“[B]ecause the ‘bifurcation’ claim is first raised in plaintiffs’ reply brief, it is untimely. Reply
briefs may contain only rebuttal argument, and raising an issue for the first time in a reply brief
is not sufficient to present the issue for appeal.”). Moreover, the argument itself is without merit.
The Legislature was free to waive its immunity to jury trial in the ELCRA, see Anzaldua, 457
Mich at 553, which it chose to do. Enforcing a statute as intended by the Legislature is the
opposite of violating the separation of powers doctrine.


                                                -9-
