           If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                           COURT OF APPEALS


KENNETH MCKENZIE,                                                FOR PUBLICATION
                                                                 May 7, 2020
              Plaintiff-Appellee,                                9:00 a.m.

v                                                                No. 347061
                                                                 Wayne Circuit Court
DEPARTMENT OF CORRECTIONS, STATE OF                              LC No. 18-002451-CD
MICHIGAN, and MACOMB CORRECTIONAL
FACILITY WARDEN,

              Defendants-Appellants,
and

RANDALL HAAS,

              Defendant.



FATIMA OLDEN,

              Plaintiff-Appellee,

v                                                                No. 347798
                                                                 Wayne Circuit Court
DEPARTMENT OF CORRECTIONS, STATE OF                              LC No. 18-001424-CD
MICHIGAN, and MACOMB CORRECTIONAL
FACILITY WARDEN,

              Defendants-Appellants.


Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.




                                             -1-
       In Docket No. 347061, defendants appeal as of right the trial court’s denial of their motion
for summary disposition premised upon MCR 2.116(C)(4). In Docket No. 347798, which this
Court consolidated with Docket No. 347061, defendants appeal by leave granted the trial court’s
order denying their motion for summary disposition, also brought pursuant to MCR 2.116(C)(4).
Olden v Department of Corrections, unpublished order of the Court of Appeals entered April 23,
2019 (Docket No. 347798). We affirm in both cases.

                                             I. FACTS

        The facts in both cases are similar and largely undisputed. Plaintiffs, Kenneth McKenzie
and Fatima Olden, (“plaintiffs”) are long-term employees of the Michigan Department of
Corrections (MDOC) as corrections officers at the Macomb Correctional Facility (“the Facility”).
In 2015, the Facility began a program where inmates trained dogs to become leader dogs for the
blind. The program only took place in certain housing units in the facility. Plaintiffs were both
assigned to one of those housing units and thus frequently had to come into contact with dogs.
Plaintiffs alleged that they were allergic to dogs and would suffer allergic symptoms whenever
they came into close contact with the dogs. Plaintiffs alleged that they informed their supervisors
of the allergic reactions and then filed “Disability Accommodation Request and Medical
Statements” with the MDOC, requesting that they be placed away from housing units that had
dogs.

        While the Facility warden allowed plaintiffs to briefly move to different housing units,
plaintiffs were ultimately returned to the prior housing units with dogs. The MDOC denied
plaintiffs’ requests for accommodation and the Facility warden also refused to accommodate their
claimed allergies by moving them to any other housing units or positions. Plaintiffs thus each filed
a charge of disability discrimination with the Equal Employment Opportunity Commission
(EEOC), after which they were allegedly subjected to retaliatory acts at the Facility. The EEOC
found probable cause that the MDOC was in violation of the Americans with Disabilities Act
(ADA) and proposed conciliation agreements between the MDOC and plaintiffs, but the MDOC
refused the terms and plaintiffs’ charges were transferred to the Department of Justice (DOJ). The
DOJ determined that it would not pursue charges on behalf of either plaintiff and plaintiffs
thereafter filed complaints against the Facility warden, the MDOC, and the state of Michigan. In
their complaints, plaintiffs alleged violations of the Michigan Persons with Disabilities Civil
Rights Act, MCL 37.1101 et seq., retaliation in violation of the same Act, violation of Title I of
the ADA, 42 USC § 12101, et seq., by the defendant warden, and violation of section 504 of the
Rehabilitation Act, 29 USC § 794, et seq., by the state and the MDOC.

        Defendants moved for summary disposition of plaintiffs’ claims for violation of Title I of
the ADA and violation of the Rehabilitation Act, asserting that plaintiffs’ claims of violation of
the ADA and violation of the Rehabilitation Act arise under federal law and remedies for those
claims may be available in the federal courts. Defendants claimed that no Michigan statute
provides the circuit court with jurisdiction over claims arising from the ADA or Rehabilitation Act
and that, lacking statutory authority and because the courts lacked jurisdiction for any claim against
the state for which there is a remedy available in federal courts, the circuit courts lacked subject
matter jurisdiction over plaintiffs’ federal claims. The trial courts denied the motions, opining that
they had subject matter jurisdiction to hear those claims under the Michigan Constitution and the
Revised Judicature Act. These appeals followed.


                                                 -2-
                            II. LAW GOVERNING JURISDICTION

        On appeal, defendants assert that because the state retains sovereign immunity from suit in
its own courts, waiver of that immunity can be achieved only through the Legislature’s consent.
They contend that while the Legislature has consented to the state being sued for certain things in
the Court of Claims under the Court of Claims Act, it has not authorized the state to be sued in the
Court of Claims or any other state court for federal Title I ADA or Rehabilitation Act claims.
Defendants acknowledge that while states courts generally have concurrent jurisdiction with
federal courts over federal claims, Michigan is without a court of competent jurisdiction to hear
ADA and Rehabilitation Act claims. According to defendants, the trial court therefore lacked
subject-matter jurisdiction over plaintiffs’ federal claims and that summary disposition should thus
have been granted in their favor with respect to plaintiffs’ ADA and Rehabilitation Act claims.
We disagree.

        This Court reviews a motion for summary disposition brought pursuant to MCR
2.116(C)(4) de novo. Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 155; 756
NW2d 483 (2008). A motion pursuant to MCR 2.116(C)(4) tests the trial court's subject-matter
jurisdiction. Braun v Ann Arbor Charter Tp, 262 Mich App 154, 157; 683 NW2d 755 (2004).
“When viewing a motion under MCR 2.116(C)(4), this Court must determine whether the
pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or whether
the affidavits and other proofs show that there was no genuine issue of material fact.” Weishuhn,
279 Mich App at 155 (citation omitted). We review whether a trial court has subject-matter
jurisdiction de novo as a question of law. Bank v Michigan Ed Ass'n-NEA, 315 Mich App 496,
499; 892 NW2d 1 (2016). This Court also reviews de novo “questions of statutory construction,
with the fundamental goal of giving effect to the intent of the Legislature.” Cheboygan Sportsman
Club v Cheboygan Co Prosecuting Attorney, 307 Mich App 71, 75; 858 NW2d 751 (2014).

        The singular issue for our resolution is whether the circuit courts had subject-matter
jurisdiction over plaintiffs’ ADA and Rehabilitation Act claims. “Subject-matter jurisdiction
refers to a court’s power to act and authority to hear and determine a case.” Forest Hills Co-
operative v Ann Arbor, 305 Mich App 572, 617; 854 NW2d 172 (2014). Michigan’s circuit courts
are courts of general jurisdiction and derive their power from the Michigan Constitution. Okrie v
Michigan, 306 Mich App 445, 467; 857 NW2d 254 (2014). Specifically, Const. 1963, art. 6, § 13
provides:

       The circuit court shall have original jurisdiction in all matters not prohibited by law;
       appellate jurisdiction from all inferior courts and tribunals except as otherwise
       provided by law; power to issue, hear and determine prerogative and remedial writs;
       supervisory and general control over inferior courts and tribunals within their
       respective jurisdictions in accordance with rules of the supreme court; and
       jurisdiction of other cases and matters as provided by rules of the supreme court.


The Revised Judicature Act (RJA) also provides that:

       circuit courts have original jurisdiction to hear and determine all civil claims and
       remedies, except where exclusive jurisdiction is given in the constitution or by


                                                 -3-
       statute to some other court or where the circuit courts are denied jurisdiction by the
       constitution or statutes of this state. [MCL 600.605]


Thus, a circuit court is presumed to have subject-matter jurisdiction over a civil action unless (1)
Michigan’s Constitution or a statute expressly prohibits it from exercising jurisdiction or, (2)
Michigan’s Constitution or a statute gives to another court exclusive jurisdiction over the subject
matter of the suit. Prime Time Intl Distrib, Inc v Dept of Treasury, 322 Mich App 46, 52; 910
NW2d 683 (2017). “ ‘[W]here this Court must examine certain statutory language to determine
whether the Legislature intended to deprive the circuit court of jurisdiction,’ this Court has
explained, ‘[t]he language must leave no doubt that the Legislature intended to deprive the circuit
court of jurisdiction of a particular subject matter.’ ” Id., citation omitted.

        There is no dispute that claims of ADA and Rehabilitation Act violations arise under
federal law. With respect to claims sounding in federal law our Supreme Court has provided
guidance concerning the circuit courts’ subject-matter jurisdiction:

       It has long been established that, so long as Congress has not provided for exclusive
       federal-court jurisdiction, state courts may exercise subject-matter jurisdiction over
       federal-law claims whenever, by their own constitution, they are competent to take
       it. State courts possess sovereignty concurrent with that of the federal government,
       subject only to limitations imposed by the Supremacy Clause. Thus, state courts are
       presumptively competent to assume jurisdiction over a cause of action arising under
       federal law. If concurrent jurisdiction otherwise exists, subject-matter jurisdiction
       over a federal-law claim is governed by state law.

       In determining whether our state courts enjoy concurrent jurisdiction over a claim
       brought under federal law, it is necessary to determine whether Congress intended
       to limit jurisdiction to the federal courts.

       In considering the propriety of state-court jurisdiction over any particular federal
       claim, the Court begins with the presumption that state courts enjoy concurrent
       jurisdiction. Congress, however, may confine jurisdiction to the federal courts
       either explicitly or implicitly. Thus, the presumption of concurrent jurisdiction can
       be rebutted by an explicit statutory directive, by unmistakable implication from
       legislative history, or by a clear incompatibility between state-court jurisdiction and
       federal interests. [Office Planning Group, Inc v Baraga-Houghton-Keweenaw
       Child Dev Bd, 472 Mich 479, 493-494; 697 NW2d 871 (2005), quotation marks
       and citations omitted]

Our inquiry, then, is first “whether Congress intended to limit to federal courts exclusive
jurisdiction over such a dispute” and, second, “if not, whether state law allows our courts to
exercise subject-matter jurisdiction over the action.” Id. at 494.

                                        III. ADA CLAIMS

        According to our Supreme Court, federal ADA claims could properly be brought in state
courts because state courts enjoy concurrent jurisdiction over such claims. Peden v City of Detroit,


                                                -4-
470 Mich 195, 201 n. 4; 680 NW2d 857 (2004), quoting Gulf Offshore Co v Mobil Oil Corp,453
US 473, 478; 101 S Ct 2870; 69 L Ed 2d 784 (1981). Peden noted the same considerations set
forth in Office Planning Group, Inc, 472 Mich at 493-494. Peden also noted that the ADA, at 42
USC § 12202 states:

        A State shall not be immune under the eleventh amendment to the Constitution of
        the United States from an action in Federal or State court of competent jurisdiction
        for a violation of this chapter. In any action against a State for a violation of the
        requirements of this chapter, remedies (including remedies both at law and in
        equity) are available for such a violation to the same extent as such remedies are
        available for such a violation in an action against any public or private entity other
        than a State.

By providing that a state is not immune from an action “in Federal or State court of competent
jurisdiction . . . .” Congress has expressly acknowledged that actions against the state for violation
of the ADA could lie in state courts.

        However, in Bd of Trustees of Univ of Alabama v Garrett, 531 US 356, 364; 121 S Ct 955,
962; 148 L Ed 2d 866 (2001), the United States Supreme Court was called upon to determine
whether, in enacting 42 USC § 12202, “Congress acted within its constitutional authority by
subjecting the States to suits in federal court for money damages under the ADA.” The Supreme
Court held that it did not and that “to uphold the [ADA’s] application to the States would allow
Congress to rewrite the Fourteenth Amendment law laid down by this Court . . . .” Id. at 374. The
Supreme Court also acknowledged that:

        Our holding here that Congress did not validly abrogate the States' sovereign
        immunity from suit by private individuals for money damages under Title I does
        not mean that persons with disabilities have no federal recourse against
        discrimination. Title I of the ADA still prescribes standards applicable to the States.
        Those standards can be enforced by the United States in actions for money
        damages, as well as by private individuals in actions for injunctive relief under Ex
        parte Young, 209 US 123; 28 S Ct 441, 52 L Ed 714 (1908). In addition, state laws
        protecting the rights of persons with disabilities in employment and other aspects
        of life provide independent avenues of redress. [Id. at 374 n. 9]


Thus, while the Supreme Court determined that states’ sovereign immunity from suit could not be
abrogated by 42 USC 12202, suits by private individuals for injunctive relief against individual
state officials in their official capacities could still be pursued in state courts. See, Ex parte Young,
209 US 123; 28 S Ct 441; 52 L Ed 714 (1908). And, Bd of Trustees of Univ of Alabama held only
that states’ sovereign immunity from suit for money damages could not be abrogated by 42 USC
§ 12202. Thus, 42 USC § 12202’s abrogation of sovereign immunity with respect to injunctive
claims brought against state officials in their official capacities under the ADA is still sound.

      Applying the test set forth in Office Planning Group, Inc, 472 Mich at 494, we find that
Congress did not intend to give federal courts exclusive jurisdiction over plaintiffs’ ADA claims
which were brought against the warden, a state official, in his official capacity under the ADA and


                                                  -5-
which seek declaratory and injunctive relief. Such claims are pursuable in state courts according
to Bd of Trustees of Univ of Alabama, 531 US at 374 n. 9. Moreover, there is no explicit or implicit
indication that Congress affirmatively divested state courts of their presumptively concurrent
jurisdiction over such claims. Our next inquiry, then, under Office Planning Group, Inc, 472 Mich
at 494 is whether state law allows our courts to exercise subject-matter jurisdiction over plaintiffs’
ADA claims.

        As previously indicated, Const. 1963, art. 6, § 13 provides that circuit courts “have original
jurisdiction in all matters not prohibited by law.” Defendants argue, however, that pursuant to
Greenfield Const Co Inc v Michigan Dept of State Highways, 402 Mich 172, 193; 261 NW2d 718
(1978), is has long been recognized that a state cannot be sued without its consent granted through
a legislative enactment and, that because neither the Court of Claims or the circuit court is
statutorily granted the jurisdiction to hear and decide federal claims against the state or its’ actors,
the ADA and Rehabilitation Act claims must be dismissed for lack of subject-matter jurisdiction.
Indeed, Michigan courts have long recognized that the state, as sovereign, is immune from suit
save as it consents to be sued, because the state created the courts and thus is not subject to them;
any relinquishment of sovereign immunity must be strictly interpreted in favor of the sovereign.
Co Rd Ass'n of Michigan v Governor, 287 Mich App 95, 118; 782 NW2d 784 (2010). “Essentially,
the state can only waive its immunity and, consequently, consent to be sued through an act of the
Legislature or through the constitution.” Id. at 119.
        Relevant to the instant matter, the state has waived its immunity and subjected itself to the
authority of courts via the Court of Claims Act, MCL 600.6401, et seq. The Court of Claims Act
thus serves as one exception to the general jurisdiction of circuit courts when it is given exclusive
jurisdiction.1 The act provides, in relevant part, at MCL 600.6419(1):

       Except as provided in sections 6421 and 6440, the jurisdiction of the court of
       claims, as conferred upon it by this chapter, is exclusive. . . . Except as otherwise
       provided in this section, the court has the following power and jurisdiction:

       (a) To 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 d0epartments or officers notwithstanding another law that confers
       jurisdiction of the case in the circuit court.

        Notably, MCL 600.6419(1)(a) vests the Court of Claims with exclusive jurisdiction to
“hear and determine any claim or demand . . . against the state or any of its departments or officers.”
Employing the word “any” in this phrase according to its plain and ordinary meaning (see, e.g.,
People v Kloosterman, 296 Mich App 636, 639; 823 NW2d 134 (2012), “any” signifies “every”
and is used to indicate no restriction. See, Merriam-Webster’s Collegiate Dictionary (11th ed.).


1
  Because the jurisdiction of the Court of Claims is not constitutionally created, but is instead
constitutionally permitted and derives its power from the Legislature in Michigan statutory law,
the Court of Claims does not have extensive and inherent powers akin to those of a constitutional
court of general jurisdiction. Okrie, 306 Mich App at 456; Prime Time Intl Distrib, 322 Mich App
at 53, quotation marks omitted.


                                                  -6-
MCL 600.6419(1)(a) further provides that the exclusive jurisdiction applies “notwithstanding
another law that confers jurisdiction of the case in the circuit court.” The word “notwithstanding”
is defined as “despite; in spite of.” Black’s Law Dictionary, 11th ed. Thus, strictly construing the
plain language in the statute relinquishing sovereign immunity from suit (Greenfield Const Co Inc,
402 Mich at 197), the exclusive jurisdiction of the Court of Claims applies to every claim against
the state, its departments, and its officers, despite any other law that confers jurisdiction of the case
to the circuit court.

         However, we cannot ignore that prior to setting forth the above, the Court of Claims Act,
at MCL 600.6419, begins by stating “Except as provided in sections 6421 and 6440, the
jurisdiction of the court of claims . . . is exclusive.” Thus, at the outset, the Court of Claims Act
sets forth two exceptions to the statement which provides it with exclusive jurisdiction over actions
against the state, its departments and officers: MCL 600.6421 and MCL 600.6440.

        MCL 600.6421 provides, in relevant part:

                 (1) 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
        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.

        (2) For declaratory or equitable relief or a demand for extraordinary writ sought by
        a party within the jurisdiction of the court of claims described in section 6419(1)
        and arising out of the same transaction or series of transactions with a matter
        asserted for which a party has the right to a trial by jury under subsection (1), unless
        joined as provided in subsection (3), the court of claims shall retain exclusive
        jurisdiction over the matter of declaratory or equitable relief or a demand for
        extraordinary writ until a final judgment has been entered, and the matter asserted
        for which a party has the right to a trial by jury under subsection (1) shall be stayed
        until final judgment on the matter of declaratory or equitable relief or a demand for
        extraordinary writ.

Thus, the first exception dictates that the Court of Claims has jurisdiction over claims brought
against the state, its departments, or its officers except where a party has the right to a trial by jury
and asserts that right as required by law. In that case, “the claim may be heard and determined by
a circuit, district, or probate court in the appropriate venue.” MCL 600.6421(1).

      Plaintiffs’ ADA claims are brought under Title 1. Title 1 is provided for in subchapter 1 of
the ADA, at 42 USC § 12112 as follows:

        (a) General rule




                                                  -7-
       No covered entity shall discriminate against a qualified individual on the basis of
       disability in regard to job application procedures, the hiring, advancement, or
       discharge of employees, employee compensation, job training, and other terms,
       conditions, and privileges of employment.

       (b) Construction

       As used in subsection (a), the term “discriminate against a qualified individual on
       the basis of disability” includes--

       (1) limiting, segregating, or classifying a job applicant or employee in a way that
       adversely affects the opportunities or status of such applicant or employee because
       of the disability of such applicant or employee;

                                                ***

       (3) utilizing standards, criteria, or methods of administration--

       (A) that have the effect of discrimination on the basis of disability; or

       (B) that perpetuate the discrimination of others who are subject to common
       administrative control;

       (4) excluding or otherwise denying equal jobs or benefits to a qualified individual
       because of the known disability of an individual with whom the qualified individual
       is known to have a relationship or association;

       (5)(A) not making reasonable accommodations to the known physical or mental
       limitations of an otherwise qualified individual with a disability who is an applicant
       or employee, unless such covered entity can demonstrate that the accommodation
       would impose an undue hardship on the operation of the business of such covered
       entity; or

       (B) denying employment opportunities to a job applicant or employee who is an
       otherwise qualified individual with a disability, if such denial is based on the need
       of such covered entity to make reasonable accommodation to the physical or mental
       impairments of the employee or applicant . . . .

This subchapter, like all of the subchapters in the ADA, contains its own remedies and enforcement
provisions. 42 USC § 12117, setting forth the “powers, remedies and procedures” applicable to
Title I states:

       (a) The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5,
       2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and
       procedures this subchapter provides to the Commission, to the Attorney General,
       or to any person alleging discrimination on the basis of disability in violation of
       any provision of this chapter, or regulations promulgated under section 12116 of
       this title, concerning employment.


                                                -8-
Plaintiffs do not claim that any referenced section in the above provides a right to a jury trial for a
claim of violation of Title 1 of the ADA where injunctive and declaratory relief is requested.
Plaintiffs also fail to direct this Court to any authority suggesting a right to a jury trial in these
circumstances. Thus, unless the second exception set forth in the Court of Claims Act at MCL
600.6419 applies, their ADA claims would be subject to the exclusive jurisdiction of the Court of
Claims.

       MCL 600.6440, states:

       No claimant may be permitted to file claim in said court against the state nor any
       department, commission, board, institution, arm or agency thereof who has an
       adequate remedy upon his claim in the federal courts, but it is not necessary in the
       complaint filed to allege that claimant has no such adequate remedy, but that fact
       may be put in issue by the answer or motion filed by the state or the department,
       commission, board, institution, arm or agency thereof.

A review of the plain statutory language requires an interpretation that if a claimant has an adequate
remedy upon his claims in the federal court, he cannot file the claim in the Court of Claims. All
parties essentially agree that the above interpretation is correct. However, defendants contend that
the statute also necessarily dictates that if a claimant has an adequate remedy in the federal court
he must file the claim in the federal court, whereas plaintiffs contend that the circuit court’s
concurrent jurisdiction applies. We agree with plaintiffs.

        While MCL 600.6440 precludes the filing of a claim in the Court of Claims if an adequate
remedy in the federal courts exist, it does not explicitly preclude the concurrent jurisdiction of the
circuit courts over such claims. Significantly, the statute provides that “[n]o claimant may be
permitted to file claim in said court . . .” (emphasis added). “Said” is defined as “aforementioned.”
Merriam-Webster’s Collegiate Dictionary (11th ed.). Because the Court of Claims Act governs the
Court of Claims, the aforementioned and thus “said” court referred to in MCL 600.6440 is the
Court of Claims. As a result, MCL 600.6440 directs only that if an adequate remedy is available
in the federal courts, the claims cannot be filed, specifically, in the Court of Claims. Defendants
more expansive reading of this statute to then require that such actions are limited to the federal
courts is incorrect. Divesting the Court of Claims of jurisdiction does not divest the circuit court
of any jurisdiction it may already have. And, our Supreme Court has directed that state courts are
presumed to have concurrent jurisdiction with federal courts over federal claims, with that
presumption being rebutted only when “Congress intended to limit jurisdiction to the federal
courts.” Office Planning Group, Inc, 472 Mich at 493 (emphasis added). “Congress . . . may
confine jurisdiction to the federal courts either explicitly or implicitly” through “explicit statutory
directive, by unmistakable implication from legislative history, or by a clear incompatibility
between state-court jurisdiction and federal interests.” Office Planning Group, Inc, 472 Mich at
493-494 (emphasis added). There has been no contention or showing that Congress intended to
limit jurisdiction over the specific type of ADA claims asserted by plaintiffs to the federal courts.
Thus, the presumption of concurrent jurisdiction over such claims stands, and plaintiffs’ Title 1
ADA claims against the state officer warden in his official capacity and seeking injunctive and
declaratory relief may be heard in the circuit court. As a result, the trial courts properly denied
defendants’ motions for summary disposition premised upon lack of subject-matter jurisdiction
over plaintiffs’ ADA claims.


                                                 -9-
                              IV. REHABILITATION ACT CLAIMS

        Defendants contend that the trial courts erred in denying their motions for summary
disposition concerning plaintiffs’ claims of violations of § 504 the Rehabilitation Act, 29 USC §
794. Defendants, however, dedicate very little argument to plaintiffs’ Rehabilitation Act claims.
Assuming that defendants intend the same arguments concerning sovereign immunity to apply to
plaintiffs’ Rehabilitation Act claims, we note that the Supreme Court has directed that Congress
may, in the exercise of its spending power, condition its grant of funds to the states upon their
taking certain actions that Congress could not require them to take, and require that the acceptance
of these funds be conditioned upon a constructive waiver of its sovereign immunity. Coll Sav
Bank v Florida Prepaid Postsecondary Ed Expense Bd, 527 US 666, 686; 119 S Ct 2219; 144 L
Ed 2d 605 (1999). Consistent with this holding and relevant to the instant matter, 42 USC § 2000d-
7 states:

       (a) General provision

       (1) A State shall not be immune under the Eleventh Amendment of the Constitution
       of the United States from suit in Federal court for a violation of section 504 of the
       Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age
       Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the
       provisions of any other Federal statute prohibiting discrimination by recipients of
       Federal financial assistance.

Thus, Congress has clearly and explicitly directed that a state does not enjoy sovereign immunity
from suits for violation of section 504 of the Rehabilitation Act—claims that were asserted by
plaintiffs.

        We note that 42 USC § 2000d-7 states that states are not immune from “a suit in Federal
court” for a violation of section 504 of the Rehabilitation Act. This may, at first blush, lead to a
conclusion that claims alleging violations of that section of the Rehabilitation Act must be brought
in a federal court. But,

       the States possess sovereignty concurrent with that of the Federal Government,
       subject only to limitations imposed by the Supremacy Clause. Under this system of
       dual sovereignty, we have consistently held that state courts have inherent
       authority, and are thus presumptively competent, to adjudicate claims arising under
       the laws of the United States. [Burt v Titlow, 571 US 12, 19; 134 S Ct 10; 187 L
       Ed 2d 348 (2013)]

Moreover, in cases “arising under federal law” “there is a deeply rooted presumption in favor of
concurrent state court jurisdiction, rebuttable if Congress affirmatively ousts the state courts of
jurisdiction over a particular federal claim.” Mims v Arrow Fin Services, LLC, 565 US 368, 378;
132 S Ct 740; 181 L Ed 2d 881 (2012) (internal quotation marks and citation omitted). And, “the
grant of jurisdiction to one court does not, of itself, imply that the jurisdiction is to be exclusive.”
Id. at 380, quoting United States v Bank of New York & Trust Co, 296 US 463, 479; 56 S Ct 343;
80 L Ed 331 (1936).




                                                 -10-
        In Mims, the Supreme Court noted that the Telephone Consumer Protection Act, 47 USC
§ 227, permits a private person to seek redress for violations of the act or regulations “in an
appropriate court of [a] State,” “if [such an action is] otherwise permitted by the laws or rules of
court of [that] State.” Id. at 380, quoting 47 USC § 227(b)(3). The Mims Court determined that
while the statute at issue provided state courts with jurisdiction, it did not do so exclusively through
use of the word “only” or “exclusively” before “State court” in the statute. Id. Thus, the Mims
Court opined that the original jurisdiction of federal courts over federal questions, set forth in 28
USC § 1331, still applied and that the state forum mentioned in 47 USC § 227(b)(3) was optional,
but not mandatory. Id. at 381.

          The same holds true here. Had Congress intended that plaintiffs’ specific Rehabilitation
Act claims be brought exclusively in the federal court, it was well aware how to do so. For
example, 47 USC § 227(g)(2) (Supp 2011) provides “exclusive jurisdiction over [such] actions”
in “[t]he district courts of the United States.” See, Mims, 565 US at 380. And, “[s]ection
227(g)(2)'s exclusivity prescription reinforce[s] the conclusion that [47 USC § 227(b) (3)'s] silence
. . . leaves the jurisdictional grant of § 1331 untouched. Id. at 380-381.

        Here, 42 USC § 2000d-7 explicitly states that states are not immune from “a suit in Federal
court” for a violation of section 504 of the Rehabilitation Act. That provision leaves intact the
original jurisdiction of federal courts over federal questions set forth in 28 USC § 1331. When
read in conjunction with the exception set forth in the Court of Claims Act at MCL 600.6440
(directing that no claim may be filed against the state, its departments, or employees in the Court
of Claims when an adequate remedy upon his claim exists in the federal courts), the presumption
of concurrent jurisdiction with the circuit courts is also left intact. And, since “state courts have
inherent authority, and are thus presumptively competent, to adjudicate claims arising under the
laws of the United States” Burt, 571 US at 19, the circuit court’s concurrent jurisdiction applies.
The circuit courts thus did not err in denying defendants’ motions for summary disposition of
plaintiffs’ Rehabilitation Act claims based on lack of subject-matter jurisdiction.

               Affirmed.



                                                                /s/ Mark J. Cavanagh
                                                                /s/ Deborah A. Servitto


       Stephens, P.J., did not participate because of her assignment to the Michigan Court of
Claims.




                                                 -11-
