                         STATE OF MICHIGAN

                          COURT OF APPEALS



JOHN DOES 11-18 and JANE DOE 1/all others             FOR PUBLICATION
similarly situated,                                   March 27, 2018
                                                      9:05 a.m.
              Plaintiffs-Appellees,

v                                                     No. 332536
                                                      Washtenaw Circuit Court
DEPARTMENT OF CORRECTIONS,                            LC No. 13-001196-CZ
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, WARDEN OF EARNEST
C. BROOKS CORRECTIONAL FACILITY,
FORMER WARDEN OF RICHARD A.
HANDLON CORRECTIONAL FACILITY,
WARDEN OF RICHARD A. HANDLON
CORRECTIONAL FACILITY, FORMER
WARDEN OF OAKS CORRECTIONAL
FACILITY, WARDEN OF THUMB
CORRECTIONAL FACILITY, WARDEN OF
CHIPPEWA CORRECTIONAL FACILITY,
WARDEN OF KINROSS CORRECTIONAL
FACILITY, WARDEN OF NEWBERRY
CORRECTIONAL FACILITY, and WARDEN
OF MICHIGAN REFORMATORY
CORRECTIONAL FACILITY,

              Defendants-Appellants.


JOHN DOES 1-10/all others similarly situated,

              Plaintiffs-Appellees,


                                                -1-
v                                     No. 335440
                                      Washtenaw Circuit Court
DEPARTMENT OF CORRECTIONS,            LC No. 15-001006-CZ
GOVERNOR, DIRECTOR DEPARTMENT OF
CORRECTIONS, FORMER DIRECTOR
DEPARTMENT OF CORRECTIONS, DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, DEPUTY DIRECTOR
DEPARTMENT OF CORRECTIONS
FACILITIES ADMINISTRATION, 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, WARDEN OF GUS HARRISON
CORRECTIONAL FACILITY, FORMER
WARDEN OF RICHARD A. HANDLON
CORRECTIONAL FACILITY, WARDEN OF
RICHARD A. HANDLON CORRECTIONAL
FACILITY, FORMER WARDEN OF OAKS
CORRECTIONAL FACILITY, FORMER
WARDEN OF THUMB CORRECTIONAL
FACILITY, WARDEN OF CHIPPEWA
CORRECTIONAL FACILITY, WARDEN OF
MARQUETTE CORRECTIONAL FACILITY,
WARDEN OF BELLAMY CREEK
CORRECTIONAL FACILITY,
WARDEN OF KINROSS CORRECTIONAL
FACILITY, WARDEN OF NEWBERRY
CORRECTIONAL FACILITY, FORMER
WARDEN OF WOMEN’S HURON VALLEY
CORRECTIONAL FACILITY, WARDEN OF
WOMEN’S HURON VALLEY
CORRECTIONAL FACILITY, WARDEN OF
MICHIGAN REFORMATORY and WARDEN
SAGINAW CORRECTIONAL FACILITY,

                                -2-
              Defendants-Appellants.


JOHN DOES 1-10/all others similarly situated,

              Plaintiffs-Appellees,

v                                                     No. 335527
                                                      Washtenaw Circuit Court
DEPARTMENT OF CORRECTIONS,                            LC No. 15-001006-CZ
GOVERNOR, DIRECTOR DEPARTMENT OF
CORRECTIONS, FORMER DIRECTOR
DEPARTMENT OF CORRECTIONS, DEPUTY
DIRECTOR DEPARTMENT OF
CORRECTIONS FACILITIES
ADMINISTRATION, DEPUTY DIRECTOR
DEPARTMENT OF CORRECTIONS
FACILITIES ADMINISTRATION, 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, WARDEN OF GUS HARRISON
CORRECTIONAL FACILITY, FORMER
WARDEN OF RICHARD A. HANDLON
CORRECTIONAL FACILITY, WARDEN OF
RICHARD A. HANDLON CORRECTIONAL
FACILITY, FORMER WARDEN OF OAKS
CORRECTIONAL FACILITY, FORMER
WARDEN OF THUMB CORRECTIONAL
FACILITY, WARDEN OF CHIPPEWA
CORRECTIONAL FACILITY, WARDEN OF
MARQUETTE CORRECTIONAL FACILITY,
WARDEN OF BELLAMY CREEK
CORRECTIONAL FACILITY,
WARDEN OF KINROSS CORRECTIONAL

                                                -3-
FACILITY, WARDEN OF NEWBERRY
CORRECTIONAL FACILITY, FORMER
WARDEN OF WOMEN’S HURON VALLEY
CORRECTIONAL FACILITY, WARDEN OF
WOMEN’S HURON VALLEY
CORRECTIONAL FACILITY, WARDEN OF
MICHIGAN REFORMATORY and WARDEN
SAGINAW CORRECTIONAL FACILITY,

                  Defendants-Appellants.


Before: O’CONNELL, P.J., and MURPHY and K. F. KELLY, JJ.

K. F. KELLY, J.

        Defendants appeal by right and by leave from three rulings of the trial court. First,
defendants claim that the trial court erred when it declared as unconstitutional an exclusion
prohibiting individuals who are serving a sentence of imprisonment from bringing actions under
the Elliot-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq. Next, defendants argue that
the trial court erred when it found that the exclusion does not apply to trainees under Holmes
Youthful Trainee Act (HYTA), MCL 762.11 et seq., because those individuals are not serving a
sentence of imprisonment. Finally, defendants maintain that the trial court erred when it
concluded that governmental immunity does not apply to such civil rights actions.

        As explained more fully below, we hold that the 1999 amendment to the ELCRA,
specifically MCL 37.2301(b), does not pass constitutional muster. Because we find that the
exclusion is unconstitutional, we need not consider whether the prohibition applies to HYTA
youthful trainees. We further hold that governmental immunity does not apply to ELCRA
claims. Therefore, finding no errors warranting reversal, we affirm.

                        I. BASIC FACTS AND PROCEDURAL HISTORY

        This case was originally brought on behalf of seven unidentified male prisoners who
sought relief under the ELCRA. They alleged that while they were under the age of 18, they
were housed with adult prisoners who took advantage of their youth to commit sexual and
physical abuse and harassment, and that defendants knew or should have known of the risk to
plaintiffs, but failed to prevent the abuse and harassment, or aided and abetted it.

         This case has been heavily litigated in the circuit court and in this Court. Since the case
was originally filed on December 9, 2013, there have been multiple applications for leave to
appeal in this Court as well as some proceedings in the Court of Claims, and applications for
leave to appeal to our Supreme Court. Throughout the course of this litigation, various plaintiffs,
claims, and defendants have been added and others have been dismissed. It is a procedural
quagmire. Still, the issues on appeal are relatively straight-forward and are purely legal. We are
first tasked with determining whether ELCRA, which excludes individuals who are serving a


                                                -4-
sentence of imprisonment from bringing suit, is constitutional. We conclude that it is not. We
must then consider whether defendants can assert governmental liability.

                                           II. ELCRA

       The Michigan Constitution provides:

       No person shall be denied the equal protection of the laws; nor shall any person
       be denied the enjoyment of his civil or political rights or be discriminated against
       in the exercise thereof because of religion, race, color or national origin. The
       legislature shall implement this section by appropriate legislation. [Const 1963,
       art 1, § 2.]

To that end, MCL 37.2302(a) of the ELCRA provides:

       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.

In its current form, the ELCRA defines “public service” as:

       a public facility, department, agency, board, or commission, owned, operated, or
       managed by or on behalf of the state, a political subdivision, or an agency thereof
       or a tax exempt private agency established to provide service to the public, except
       that public service does not include a state or county correctional facility with
       respect to actions and decisions regarding an individual serving a sentence of
       imprisonment. [MCL 37.2301(b) (emphasis added).]

The highlighted language was added in 1999 after this Court’s decision in Neal v Department of
Corrections, 232 Mich App 730; 592 NW2d 370 (1998) (Neal II), which concluded that prisons
were not excluded from the definition of “public service.” The “Enacting section 1” of the
ELCRA 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.

        At the heart of this appeal is whether the ELCRA, in its post-amendment form, is
constitutional. “We review de novo constitutional questions such as whether a party was denied
due process and equal protection under the law.” Lima Twp v Bateson, 302 Mich App 483, 503;
838 NW2d 898 (2013). An issue involving statutory construction is likewise reviewed de novo.
Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).

                                               -5-
               The role of this Court in interpreting statutory language is to ascertain the
       legislative intent that may reasonably be inferred from the words in a statute. The
       focus of our analysis must be the statute’s express language, which offers the
       most reliable evidence of the Legislature’s intent. When the statutory language is
       clear and unambiguous, judicial construction is not permitted and the statute is
       enforced as written. A court may read nothing into an unambiguous statute that is
       not within the manifest intent of the Legislature as derived from the words of the
       statute itself. [Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich
       191; 895 NW2d 490, 495 (2017) (quotation marks and footnotes omitted).]

         As previously stated, this case has a long and protracted history. In 2014, the trial court
denied defendants’ motion for summary disposition, citing the same equal protection concerns
that it later articulated in the order on appeal here. That ruling, along with a ruling regarding the
prison litigation reform act (PLRA), MCL 600.5501 et seq., was the subject of leave applications
filed under Docket Nos. 321013 and 321756. This Court denied leave in both applications, but
our Supreme Court remanded for consideration as on leave granted. Doe v Dep’t of Corrections,
497 Mich 882; 854 NW2d 718 (2014). That resulted in Doe v Dep’t of Corrections, 312 Mich
App 97; 878 NW2d 293 (2015). We held that the trial court erred in not granting summary
disposition for failure to comply with the disclosure requirement of the PLRA and that plaintiffs
could not amend their complaint to cure the defect. Id. at 113-114, 138. This Court also found
that the challenged provisions of the ELCRA did not violate the right to equal protection. Id. at
138-139. However, on March 30, 2016, our Supreme Court vacated the equal protection ruling
in this Court’s Doe decision, because “[i]n light of the Court of Appeals ruling that plaintiffs’
complaint should be dismissed under the Prisoner Litigation Reform Act, MCL 600.5501 et seq.,
it was unnecessary to resolve the remaining issues.” Doe v Dep’t of Corrections, 499 Mich 886;
876 NW2d 570 (2016).

        In Doe, both Judge Riordan and Judge Beckering provided extensive and lengthy analysis
on the constitutionality (or lack thereof) of the ELCRA amendment. Judge Riordan concluded
that prisoners were not similarly situated to non-prisoners and that the legislature’s action in
excluding prisoners from ELCRA was rationally related to its interest in protecting the public
fisc. Doe, 312 Mich App at 127-138. Judge Beckering had a different approach to the case. She
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, quoting Const 1963, art 1, § 2.]

Judge Beckering 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.” Id. 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 ELCRA, which also contains the
singular – “a person shall not . . . deny an individual . . .” Id. at 147. Judge Beckering noted


                                                -6-
that following Neal II the legislature amended the statute and, in so doing, violated its
constitutional mandate. Id. at 148-149. Judge Beckering explained:

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

               I would hold that the Legislature acted outside of its constitutional
       authority by removing prisoners from the scope of the ELCRA and thereby
       denying protection to all. Where the analysis in this case should start, and end, in
       my opinion, is with the idea that Const. 1963, art 1, § 2 contains more than just
       the guarantee of equal protection of the laws; it contains a directive to the
       Legislature to implement legislation that protects the rights of all citizens. [Doe,
       312 Mich App at 149-150.]

                                             * * *

       [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] at 95; 803
       NW2d 674. 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 153-154.]

Judge Beckering did not believe that the legislature was endowed with the discretion to define
the meaning of the constitutional mandate by narrowing the scope of protected individuals. Id. at
154. Because the amendment infringed upon a constitutional directive, it could not stand. Id. at
151-152. Judge Beckering surmised that “there is no need to evaluate the exclusion of prisoners
from the scope of the ELCRA on equal protection grounds. The analysis of the constitutionality
of the 1999 amendment should begin with the directive given to the Legislature in Const 1963,
art 1, § 2 and end with the conclusion that the 1999 amendment is constitutionally infirm because
it is contrary to the directive contained in article 1, § 2.” Doe, 312 Mich App at 156 (footnote
omitted).



                                               -7-
         We conclude that the amendment is unconstitutional for the reasons stated by Judge
Beckering’s foregoing analysis and, therefore, we specifically adopt this analysis as our own.
The legislature’s amendment of the ELCRA to effectively bar correctional facility prisoners from
bringing ELCRA suits is in direct violation of Const 1963, art 1, § 2 of the Michigan
Constitution, which makes clear that the mandatory legislation must protect all persons. The
amendment violates the constitutional mandate that the legislature craft laws for the protection of
its individual citizens.

       III. GOVERNMENTAL IMMUNITY DOES NOT APPLY TO ELCRA CLAIMS

       Defendants argue that the trial court erred when it failed to grant their motion for
summary disposition. “A trial court may grant a motion for summary disposition under MCR
2.116(C)(7) on the ground that a claim is barred because of immunity granted by law.” McLean
v McElhaney, 289 Mich App 592, 597; 798 NW2d 29 (2010). Such a decision is reviewed de
novo on appeal. Id. at 596.

        Contrary to defendants’ assertions, the law is clear that governmental immunity does not
apply to ELCRA claims. In re Bradley Estate, 494 Mich 367, 393 n 60; 835 NW2d 545 (2013)
(“Compare MCL 600.1721 and MCL 600.1701 with other statutes expressly waiving
governmental immunity, including the Elliot-Larsen Civil Rights Act . . .”); Mack v Detroit, 467
Mich 186, 195; 649 NW2d 47 (2002) (“[T]here are other areas outside the GTLA where the
Legislature has allowed specific actions against the government to stand, such as the Civil Rights
Act.”); Diamond v Witherspoon, 265 Mich App 673, 691; 696 NW2d 770 (2005) (“The
Legislature has allowed specific actions against the government to stand, such as one under the
CRA.”); Manning v Hazel Park, 202 Mich App 685; 509 NW2d 874 (1993) (“Governmental
immunity is not a defense to a claim brought under the Civil Rights Act.”) Defendants cite Jones
v Bitner, 300 Mich App 65; 832 NW2d 426 (2013), in support of their position that immunity
supersedes and replaces pre-existing statutory waivers of immunity. However, the Jones case
involved an interplay between the GTLA and the Child Protection Law (CPL), MCL 722.621 et
seq., and does not support defendants’ argument. Jones simply cannot and does not result in
overruling the established binding precedent that governmental immunity does not apply to
ELCRA claims.

       Affirmed.


                                                            /s/ Kirsten Frank Kelly
                                                            /s/ William B. Murphy




                                                -8-
