Order                                                               Michigan Supreme Court
                                                                          Lansing, Michigan

  June 14, 2019                                                          Bridget M. McCormack,
                                                                                       Chief Justice

                                                                              David F. Viviano,
                                                                              Chief Justice Pro Tem
  157729-31
                                                                            Stephen J. Markman
                                                                                 Brian K. Zahra
                                                                           Richard H. Bernstein
  JOHN DOES 11-18, JANE DOE 1, and all                                     Elizabeth T. Clement
  others similarly situated,                                               Megan K. Cavanagh,
                                                                                            Justices
                Plaintiffs-Appellees,
  v                                                   SC: 157729
                                                      COA: 332536
                                                      Washtenaw CC: 13-001196-CZ
  DEPARTMENT OF CORRECTIONS,
  GOVERNOR, FORMER DIRECTOR
  DEPARTMENT OF CORRECTIONS, FORMER
  DEPUTY DIRECTOR DEPARTMENT OF
  CORRECTIONS FACILITIES
  ADMINISTRATION, FORMER CHIEF DEPUTY
  DIRECTOR DEPARTMENT OF
  CORRECTIONS FACILITIES
  ADMINISTRATION, FORMER WARDEN OF
  CHARLES EGELER RECEPTION AND
  GUIDANCE CENTER, FORMER WARDEN OF
  EARNEST C. BROOKS CORRECTIONAL
  FACILITY, FORMER WARDEN OF RICHARD
  A. HANDLON CORRECTIONAL FACILITY,
  FORMER WARDEN OF RICHARD A.
  HANDLON CORRECTIONAL FACILITY,
  FORMER WARDEN OF OAKS
  CORRECTIONAL FACILITY, FORMER
  WARDEN OF THUMB CORRECTIONAL
  FACILITY, FORMER WARDEN OF
  CHIPPEWA CORRECTIONAL FACILITY,
  WARDEN OF KINROSS CORRECTIONAL
  FACILITY, FORMER WARDEN OF
  NEWBERRY CORRECTIONAL FACILITY, and
  FORMER WARDEN OF MICHIGAN
  REFORMATORY CORRECTIONAL FACILITY,
             Defendants-Appellants.

  _________________________________________/


  JOHN DOES 1-10 and all others similarly situated,
            Plaintiffs-Appellees,
  v                                                   SC: 157730
                                                      COA: 335440
                                                      Washtenaw CC: 15-001006-CZ
  DEPARTMENT OF CORRECTIONS,
  GOVERNOR, DIRECTOR DEPARTMENT OF
  CORRECTIONS, FORMER DIRECTOR
                                                                                 2

DEPARTMENT OF CORRECTIONS, DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER CHIEF
DEPUTY DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, WARDEN OF IONIA
CORRECTIONAL FACILITY, FORMER
WARDEN OF E. C. BROOKS CORRECTIONAL
FACILITY, FORMER WARDEN OF GUS
HARRISON CORRECTIONAL FACILITY,
FORMER WARDEN OF RICHARD A.
HANDLON CORRECTIONAL FACILITY,
FORMER WARDEN OF RICHARD A.
HANDLON CORRECTIONAL FACILITY,
FORMER WARDEN OF CARSON CITY
CORRECTIONAL FACILITY, FORMER
WARDEN OF OAKS CORRECTIONAL
FACILITY, FORMER WARDEN OF OAKS
CORRECTIONAL FACILITY, FORMER
WARDEN OF THUMB CORRECTIONAL
FACILITY, FORMER WARDEN OF CHIPPEWA
CORRECTIONAL FACILITY, FORMER
WARDEN OF MARQUETTE CORRECTIONAL
FACILITY, WARDEN OF BELLAMY CREEK
CORRECTIONAL FACILITY, WARDEN OF
KINROSS CORRECTIONAL FACILITY,
FORMER WARDEN OF NEWBERRY
CORRECTIONAL FACILITY, FORMER
WARDEN OF WOMEN’S HURON VALLEY
CORRECTIONAL FACILITY, FORMER
WARDEN OF WOMEN’S HURON VALLEY
CORRECTIONAL FACILITY, FORMER
WARDEN OF MICHIGAN REFORMATORY,
and WARDEN OF SAGINAW CORRECTIONAL
FACILITY,
           Defendants-Appellants.
_________________________________________/
JOHN DOES 1-10 and all others similarly situated,
           Plaintiffs-Appellees,
v                                                   SC: 157731
                                                    COA: 335527
                                                    Washtenaw CC: 15-001006-CZ
DEPARTMENT OF CORRECTIONS,
GOVERNOR, DIRECTOR DEPARTMENT OF
CORRECTIONS, FORMER DIRECTOR
                                                                                  3

DEPARTMENT OF CORRECTIONS, DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, FORMER CHIEF
DEPUTY DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, WARDEN OF IONIA
CORRECTIONAL FACILITY, FORMER
WARDEN OF E. C. BROOKS CORRECTIONAL
FACILITY, FORMER WARDEN OF GUS
HARRISON CORRECTIONAL FACILITY,
FORMER WARDEN OF RICHARD A.
HANDLON CORRECTIONAL FACILITY,
FORMER WARDEN OF RICHARD A.
HANDLON CORRECTIONAL FACILITY,
FORMER WARDEN OF CARSON CITY
CORRECTIONAL FACILITY, FORMER
WARDEN OF OAKS CORRECTIONAL
FACILITY, FORMER WARDEN OF OAKS
CORRECTIONAL FACILITY, FORMER
WARDEN OF THUMB CORRECTIONAL
FACILITY, FORMER WARDEN OF CHIPPEWA
CORRECTIONAL FACILITY, FORMER
WARDEN OF MARQUETTE CORRECTIONAL
FACILITY, WARDEN OF BELLAMY CREEK
CORRECTIONAL FACILITY, WARDEN OF
KINROSS CORRECTIONAL FACILITY,
FORMER WARDEN OF NEWBERRY
CORRECTIONAL FACILITY, FORMER
WARDEN OF WOMEN’S HURON VALLEY
CORRECTIONAL FACILITY, FORMER
WARDEN OF WOMEN’S HURON VALLEY
CORRECTIONAL FACILITY, FORMER
WARDEN OF MICHIGAN REFORMATORY,
and WARDEN OF SAGINAW CORRECTIONAL
FACILITY,
           Defendants-Appellants.
_________________________________________/

       On order of the Court, the application for leave to appeal the March 27, 2018
judgment of the Court of Appeals is considered, and it is DENIED, there being no
majority in favor of granting leave to appeal or taking other action.

      ZAHRA, J. (dissenting).
                                                                                          4

        I would grant the application in these two consolidated class actions.

       These consolidated cases feature a long and protracted legal history that has yet to
include any substantive review by this Court. Plaintiffs represent juvenile prisoners who
claim that they were subjected to sexual assaults, sexual harassment, and degrading
treatment by prison staff and adult prisoners. Plaintiffs, who are mostly juvenile male
inmates serving terms of imprisonment in the custody of the Department of Corrections
(DOC) brought claims against the Governor, the DOC, the former and current heads of
the DOC, and many prison wardens. Plaintiffs alleged violations of the Civil Rights Act
(CRA), MCL 37.2101 et seq., for sexual assaults, a sexually hostile prison environment,
age discrimination, and other claims arising from the DOC’s alleged failure to segregate
them from adult prisoners and failure to report abuse or neglect.

       In Neal v Dep’t of Corrections (On Rehearing), 1 the Court of Appeals concluded
that prisons were not excluded from the definition of “public service.” In response, the
Legislature amended the CRA in 1990. “Enacting section 1” provides:

               This amendatory act is 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. 2

The amendment redefined “public service” to add the italicized phrase:

        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.[3]

This amendment plays a critical role in these cases.




1
 Neal v Dep’t of Corrections (On Rehearing), 232 Mich App 730 (1998), superseded in
part by 1999 PA 202.
2
    1999 PA 202.
3
    MCL 37.2301(b) (emphasis added).
                                                                                             5

        In Doe v Dep’t of Corrections, 4 a split panel of the Court of Appeals held that
defendants were entitled to summary disposition for failure to comply with the disclosure
requirements of the prison litigation reform act (PLRA), MCL 600.5501 et seq., and that
plaintiffs could not amend their complaint to cure the defect. 5 The majority also
concluded that the challenged provisions of the CRA did not violate the right to equal
protection. 6 Judge BECKERING dissented, asserting that the amendment of the CRA
violated Michigan’s Equal Protection Clause. 7 Plaintiffs sought leave to appeal, and this


4
  Doe v Dep’t of Corrections, 312 Mich App 97 (2015), vacated in part 499 Mich 886
(2016).
5
    Id. at 112-114, 138.
6
    Id. at 136.
7
    The dissent emphasized the following terms in Michigan’s Equal Protection Clause:
                “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.” [Doe, 312 Mich App at 145 (BECKERING, J.,
         dissenting), quoting Const 1963, art 1, § 2.]
       The dissent noted that the use of the singular within the clause demonstrated that it
was “unquestionably the intent of the ratifiers that civil rights protections be extended to
any and all persons.” Doe, 312 Mich App at 145 (BECKERING, J., dissenting). The dissent
further stated that, under the second sentence, the Legislature was constitutionally
mandated to implement protection to any and all persons and lacked authority to exclude
anyone. Id. at 146-147. In response to that mandate, the Legislature enacted the CRA,
which also contains the singular: “a person shall not ‘[d]eny an individual . . . .’ ” Id. at
147, quoting MCL 37.2302(a).
      The dissent also noted that following Neal (On Rehearing), the Legislature
amended the statute and, in so doing, violated its constitutional mandate. Doe, 312 Mich
App at 148-149 (BECKERING, J., dissenting). The dissent explained:
                The parties and the majority frame the issue at hand as one calling
         for a determination of whether the 1999 amendment to the [CRA] violates
         equal protection by denying prisoners, as a class, protections under the
         [CRA]. 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 [CRA].
                                                                                          6

Court vacated the Court of Appeals’ constitutional analysis regarding equal protection,
observing: “In light of the Court of Appeals ruling that plaintiffs’ complaint should be
dismissed under the [PLRA], it was unnecessary to resolve the remaining issues.” 8 The
matter was remanded to the trial court where some but not all of plaintiffs’ claims were
dismissed. Defendant again moved for summary disposition, and the court again denied
the motion, ruling that the CRA’s 1999 amendment excluding prisoners from its purview
violated equal protection and was unconstitutional. The court also denied defendants’
claim of governmental immunity on the CRA claims.

       Defendant appealed. The Court of Appeals affirmed in a split decision, adopting
the constitutional analysis set forth in Judge BECKERING’s dissent in the prior appeal. 9
Judge O’CONNELL issued a sharp dissent. He conducted a “traditional constitutional
analysis” and concluded there was obviously a rational basis for the Legislature to
exclude prisoners from the CRA. 10 He questioned the majority’s approach, wondering


                 I would hold that the Legislature acted outside of its constitutional
         authority by removing prisoners from the scope of the [CRA] 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.
                                             ***
                  . . . [T]he 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 Midland Cogeneration
         [Venture Ltd Partnership v Naftaly], 489 Mich [83, 95 (2011)]. If it did,
         just as the Court cautioned in Midland Cogeneration, the protection of “any
         person” would “lose [its] strength” and the Legislature would render such
         protection meaningless. See id. Consequently, I would hold that the 1999
         amendment, by eradicating a constitutional guarantee, violates Const 1963,
         art 1, § 2. [Id. at 149-150, 153-154.]
8
    Doe, 499 Mich at 886.
9
    Does 11-18 v Dep’t of Corrections (After Remand), 323 Mich App 479 (2018).
10
     Id. at 500-503 (O’CONNELL, P.J., dissenting).
                                                                                            7

“what, if any, law would pass such a contrived test . . . .” 11 He also identified the primary
error of the majority opinion as its adoption of plaintiffs’ assertion that prisoners and
nonprisoners are similarly situated in all aspects of this case. He concluded that
“[p]risoners and nonprisoners have never been similarly situated, are not currently
similarly situated, and hopefully will never be similarly situated. That a rational basis
exists for treating prisoners differently from free citizens is obvious.” 12 He explained that
“the deterrence of meritless lawsuits and the preservation of scarce resources through the
reduction of costs associated with resolving those lawsuits reflects a legitimate
government interest,” 13 stating:

           Prisoners file an unprecedented number of lawsuits, and the cost to the state
           has skyrocketed. In one instance, a prisoner has filed 5,813 lawsuits and
           counting. The Legislature recognized that including prisons in the
           definition of “public service,” MCL 37.2301(b), is problematic. Prisoners
           could sue for the loss of their right to vote or for the loss of their Second
           Amendment right to carry a gun in prison.[14]

The stark contrast between the opinions of Judge O’CONNELL and Judge BECKERING
speaks volumes as to why leave to appeal should be granted in the instant case. This
Court should have the final word on this significant issue of Michigan constitutional
law. 15


11
     Id. at 501.
12
     Id.
13
     Id. at 501-502 (quotation marks and citation omitted).
14
     Id. at 502.
15
   Regardless of whether the Court of Appeals reached the correct result, its reasoning
was highly questionable. In ruling that the amendment of the CRA violated Const 1963,
art 1, § 2, the Court of Appeals relied solely on the implementation clause of that
provision, which states that “[t]he legislature shall implement this section by appropriate
legislation.” See Does 11-18, 323 Mich App at 488-489. By doing so, the Court of
Appeals ruled that there was an equal-protection violation without engaging in an equal-
protection analysis. See id. That is, the Court of Appeals failed to apply the rational-
basis standard (or any other standard of review recognized by the courts, for that matter)
in addressing plaintiffs’ equal-protection claim. The Court of Appeals’ reasoning in this
regard strikes me as a quite peculiar deviation from decades of equal-protection caselaw
and would seem to warrant our review, particularly because “[t]his Court has held that
Michigan’s equal protection provision is coextensive with the Equal Protection Clause of
the United States Constitution.” Shepherd Montessori Ctr Milan v Ann Arbor Charter
Twp, 486 Mich 311, 318 (2010).
                                                                                           8

       Further, the Court of Appeals majority’s conclusion that Article 3 of the CRA
operates as a waiver of governmental immunity under the governmental tort liability act
(GTLA), MCL 691.1401 et seq., presents great tension if not outright conflict with this
Court’s opinion in Hamed v Wayne Co. 16 There, we addressed “whether Wayne County
and its sheriff’s department may be held vicariously liable for a civil rights claim under
MCL 37.2103(i) based on a criminal act of a deputy sheriff committed during working
hours but plainly beyond the scope of his employment.” 17 In doing so, the Court
cautioned:
               Artful pleading would also allow a plaintiff to avoid governmental
       immunity under the [GTLA]. A school district, for example, could not be
       vicariously liable in tort for a teacher’s sexual molestation of a student
       because the GTLA would bar the claim. However, if the plaintiff styled its
       claim as a CRA action, the school district could be vicariously liable under
       a theory of quid pro quo sexual harassment affecting public services.
       Plaintiff’s preferred approach, under which public-service providers would
       be strictly liable for precisely the same conduct as that for which they
       would typically be immune, is inherently inconsistent with the Legislature’s
       intent. If the Legislature had intended such a result, it should have clearly
       abrogated the common-law rule for purposes of the CRA.[18]

      As pointed out by Judge O’CONNELL, “Hamed clearly holds that plaintiffs cannot
avoid the GTLA by simply alleging a violation of the [CRA].” 19 And yet, “to their
innovative credit,” plaintiffs appear to “have artfully pleaded a cause of action exactly as
the Hamed Court cautioned should not be done.” 20

        In sum, the instant case presents two questions of great jurisprudential significance
that this Court should resolve. I would grant the application for leave to appeal.

          MARKMAN, J., joins the statement of ZAHRA, J.




16
     Hamed v Wayne Co, 490 Mich 1 (2011).
17
     Id. at 5.
18
     Id. at 29 n 74.
19
     Does 11-18, 323 Mich App at 495 (O’CONNELL, P.J., dissenting).
20
     Id. (emphasis omitted).
                                                                                                             9


      CLEMENT, J., did not participate due to her prior involvement as chief legal
counsel for the Governor.




                       I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                 foregoing is a true and complete copy of the order entered at the direction of the Court.
                       June 14, 2019
       s0611
                                                                           Clerk
