                           STATE OF MICHIGAN

                            COURT OF APPEALS


RUVAYN RUBINSTEIN and SARA                                           UNPUBLISHED
RUBINSTEIN,                                                          February 22, 2018

               Plaintiffs-Appellants,

v                                                                    No. 335101
                                                                     Oakland Circuit Court
TEMPLE ISRAEL EARLY LEARNING                                         LC No. 2015-149593-CZ
CENTER,

               Defendant-Appellee.


Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.

PER CURIAM.

       Plaintiffs appeal by right the trial court’s order granting summary disposition in favor of
defendant. We vacate the trial court’s order and remand for further proceedings in light of
Winkler v Marist Fathers of Detroit, Inc, 500 Mich 327; 901 NW2d 566 (2017).1

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       The parties previously litigated, in the United States District Court for the Eastern District
of Michigan, federal constitutional claims arising out of the same operative facts.2 The District
Court’s opinion summarizes the underlying facts:

              Defendant . . . is a private, religious institution that operates a child group
       program, its Early Childhood Center (“ECC”), for preschool and childcare. It is
       licensed to do business by the State of Michigan. Plaintiffs Ruvayn and Sara



1
  Winkler was decided after the claim of appeal and appeal briefs were filed in this case. On its
own motion, this Court issued an order directing the parties to file supplemental briefs regarding
the impact of Winkler on this appeal. See Rubenstein v Temple Israel Early Learning Center,
unpublished order of the Court of Appeals, issued January 23, 2018.
2
 Rubinstein v Temple Israel, unpublished opinion of the United States District Court for the
Eastern District of Michigan, issued July 19, 2016 (Docket No. 15-13969).


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           Rubinstein are parents of two, preschool-aged children who previously attended
           the program.

                    Temple Israel is a Reform Jewish congregation. In 2015 it modified its
           vaccination policy to require all ECC students to get vaccinations unless they
           have an exemption due to medical reasons only. The new vaccination policy is
           more restrictive than certain provisions of Michigan statutes that allow parent
           [sic] to obtain an exemption not only due to medical reasons, but also for religious
           reasons. Temple Israel’s religious beliefs motivate its conduct, and Plaintiffs do
           not allege otherwise.[3]

The District Court remanded plaintiff’s state-law claims to the trial court. Thereafter, the trial
court granted summary disposition in favor of defendant, citing the ecclesiastical abstention
doctrine.4 This appeal followed.

                                     II. STANDARD OF REVIEW

        We review de novo a trial court’s decision on a motion for summary disposition.
Winkler, 500 Mich at 333. We also review de novo questions of subject matter jurisdiction and
constitutional law. Id.

                                            III. ANALYSIS

       Plaintiffs argue that the trial court erred by granting summary disposition in favor of
defendant, because the ecclesiastical abstention doctrine is not applicable to their claims. As
explained in Winkler, 500 Mich at 337-339:

                   The ecclesiastical abstention doctrine arises from the Religion Clauses of
           the First Amendment of the United States Constitution and reflects this Court’s
           longstanding recognition that it would be inconsistent with complete and
           untrammeled religious liberty for civil courts to enter into a consideration of
           church doctrine or church discipline, to inquire into the regularity of the
           proceedings of church tribunals having cognizance of such matters, or to
           determine whether a resolution was passed in accordance with the canon law of
           the church, except insofar as it may be necessary to do so, in determining whether
           or not it was the church that acted therein. Accordingly, we have consistently
           held that the court may not substitute its opinion in lieu of that of the authorized
           tribunals of the church in ecclesiastical matters, and that judicial interference in
           the purely ecclesiastical affairs of religious organizations is improper. . . .


3
    Id. at 1.
4
  The District Court also granted summary judgment in favor of defendant on the federal
constitutional claims, holding that defendant was not a state actor, and that, in any event, the
ecclesiastical abstention doctrine applied. Id. at 2.


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               The doctrine thus operates to ensure that, in adjudicating a particular case,
       a civil court does not infringe the religious freedoms and protections guaranteed
       under the First Amendment. It does not, however, purport to deprive civil courts
       of the right . . . to exercise judicial power over any given class of cases.
       [Quotation marks, citations, brackets, and footnote omitted.]

To the extent that prior decisions, such as Dlaikan v Roodbeen, 206 Mich App 591; 522 NW2d
719 (1994), overruled in part by Winkler, 500 Mich at 327, indicated that the ecclesiastical
abstention doctrine’s operation could deprive a court of subject-matter jurisdiction, Winkler
overruled them. Winkler, 500 Mich at 330. “The ecclesiastical abstention doctrine may affect
how a civil court exercises its subject matter jurisdiction over a given claim,” but “it does not
divest a court of such jurisdiction altogether.” Id. at 569 (emphasis added). In other words, the
“doctrine informs how civil courts must adjudicate claims involving ecclesiastical questions; it
does not deprive those courts of subject matter jurisdiction over such claims.” Id. at 337. The
germane inquiry “is whether the actual adjudication of a particular legal claim would require the
resolution of ecclesiastical questions; if so, the court must abstain from resolving those questions
itself, defer to the religious entity’s resolution of such questions, and adjudicate the claim
accordingly.” Id. at 341.

        In this case (and unlike in Winkler), the trial court did not explicitly state that its ruling
was premised on subject-matter jurisdiction or that it was granting summary disposition under
MCR 2.116(C)(4). Nonetheless, at the time the trial court ruled, it was bound to follow the now-
overruled holding of Dlaikan and its progeny (i.e., that the ecclesiastical abstention doctrine
implicates subject-matter jurisdiction). See MCR 7.215(C)(2). We therefore conclude that we
must remand this case to the trial court to consider the merits of the parties’ cross-motions for
summary disposition.5 In light of Winkler, the trial court should have the opportunity, in
exercising its jurisdiction, to adjudicate the merits of those motions while abstaining from
resolving any ecclesiastical questions.

        Moreover, it would be inappropriate for us to essentially decide those motions in the first
instance on appeal. “It is for the circuit court, in the first instance, to determine whether and to
what extent the adjudication of the legal and factual issues presented . . . would require the
resolution of ecclesiastical questions (and thus deference to any answers the church has provided
to those questions).” Id. at 343. See also Winkler v Marist Fathers of Detroit, Inc (On Remand),


5
  As a threshold consideration, because Winkler was decided approximately nine months after the
trial court made its challenged ruling, we must decide whether Winkler should be afforded
retroactive application. We conclude that it should. See W.A. Foote Mem Hosp v Mich Assigned
Claims Plan, 321 Mich 159, ___; ___ NW2d ___ (2017), lv pending (noting that “[t]he general
principle is that a decision of a court of supreme jurisdiction overruling a former decision is
retrospective in its operation, and the effect is not that the former decision is bad law, but that it
never was the law”) (quotation marks and citation omitted); see also WT Andrew Co, Inc v Mid-
State Surety Corp (After Remand), 461 Mich 628, 632 n 1; 611 NW2d 305 (2000), quoting
Gentzler v Smith, 320 Mich 394, 398; 31 NW2d 668 (1948).


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___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 323511), slip op at 12 (holding that
remand to the trial court was necessary); Smit v State Farm Mut Auto Ins Co, 207 Mich App 674,
685; 525 NW2d 528 (1994) (“[a]s a general rule, this Court declines to consider an issue that was
not decided by the trial court”). Accordingly, we vacate the order appealed and remand this
matter to the trial court for reconsideration in light of Winkler.6

        Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                            /s/ Michael J. Riordan
                                                            /s/ Mark T. Boonstra
                                                            /s/ Michael F. Gadola




6
  In a supplemental authority, defendants direct this court to a Florida Court of Appeals case,
Flynn v Estevez, 221 So 3d 1241 (Fla 1st D.C.A., 2017), in which the Florida Court of Appeals
upheld the trial court’s application of the ecclesiastical abstention doctrine in a similar factual
situation. The Flynn court noted that “[i]n Florida, courts have interpreted the doctrine as a
jurisdictional bar . . . .” Such is no longer the case in Michigan after Winkler, and Flynn thus
does not aid our analysis.


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