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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JOHN DOES 11-18 and JANE DOE 1/all others 

similarly situated,

Plaintiffs-Appellees,

FOR PUBLICATION

March 27, 2018

v No. 332536

Washtenaw Circuit Court

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, WARDEN OF CHARLES 

EGELER RECEPTION AND GUIDANCE 

CENTER, WARDEN OF E 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,

LC No. 13-001196-CZ

Defendants-Appellants.

JOHN DOES 1-10/all others similarly situated,

Plaintiffs-Appellees,

v No. 335440
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Washtenaw Circuit Court

DEPARTMENT OF CORRECTIONS, 

GOVERNOR, DIRECTOR DEPARTMENT OF 

CORRECTIONS, FORMER DIRECTOR 

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, WARDEN OF GUS HARRISON 

CORRECTIONAL FACILITY, FORMER 

WARDEN OF RICHARD A. HANDLON 

CORRECTIONAL FACILITY, FORMER 

WARDEN OF CARSON CITY 

CORRECTIONAL FACILITY, FORMER 

WARDEN OF OAKS CORRECTIONAL 

FACILITY, 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 

CORRECTIONAL FACILITY, and WARDEN 

OF SAGINAW CORRECTIONAL FACILITY,

LC No. 15-001006-CZ

Defendants-Appellants.
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JOHN DOES 1-10/all others similarly situated,

Plaintiffs-Appellees,

v No. 335527

Washtenaw Circuit Court

DEPARTMENT OF CORRECTIONS, 

GOVERNOR, DIRECTOR DEPARTMENT OF 

CORRECTIONS, FORMER DIRECTOR 

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, WARDEN OF GUS HARRISON 

CORRECTIONAL FACILITY, FORMER 

WARDEN OF RICHARD A. HANDLON 

CORRECTIONAL FACILITY, FORMER 

WARDEN OF CARSON CITY 

CORRECTIONAL FACILITY, FORMER 

WARDEN OF OAKS CORRECTIONAL 

FACILITY, 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, 

LC No. 15-001006-CZ
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WARDEN OF MICHIGAN REFORMATORY 

CORRECTIONAL FACILITY, and WARDEN 

OF SAGINAW CORRECTIONAL FACILITY,

Defendants-Appellants.

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

O’CONNELL, P.J. (dissenting). 

I respectfully dissent. 

Plaintiffs’ artfully drafted complaint seeks to hold these state defendants vicariously

liable for criminal actions of third parties while plaintiffs were incarcerated in the state prison 

system. Plaintiffs’ complaint seeks to avoid governmental immunity, seeks to declare 1999 PA 

202 unconstitutional, and seeks to wrest money damages from these state defendants. 

Plaintiffs’ primary complaint is that if these state officials had instituted better policies 

with regard to youthful prisoners, these plaintiffs may not have been victims of crimes by 

unnamed third parties while incarcerated in the prison system. The basket that plaintiffs place all 

of their eggs into is Article 3 of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et 

seq. But Article 3 does not place any affirmative duties on these state defendants. No Michigan 

Article 3 ELCRA case has ever recognized a cause of action based upon an allegation of a 

failure to discriminate. Allowing plaintiffs to use the ELCRA in this innovative manner places 

an impossible burden on public service providers and is antagonistic to current state law. In 

addition, plaintiffs have numerous other remedies for the respite they are seeking. 

For the reasons stated in this opinion, I would reverse the summary disposition orders of 

the trial court and remand for further proceedings consistent with this opinion. 

I. FACTS AND NATURE OF CASE 

As a result of being convicted of serious criminal offenses, plaintiffs are incarcerated in 

the state prison system. Plaintiffs’ theory of the case is that defendants’ former policy of housing 

youthful offenders with non-youthful offenders resulted in plaintiffs’ abuse, harassment, or other 

unlawful treatment by other prisoners or correctional staff. Plaintiffs claim that the state’s 

policies, customs, and practices discriminate against youthful offenders by failing to separate 

youthful offenders from adult offenders. Plaintiffs seek to hold state officials, such as the 

Governor, wardens, former wardens, directors, former deputy and chief directors, and all state 

officials associated with the prison system, accountable for failing to institute better policies that 

may have better protected youthful offenders while serving sentences in the state prison system. 

Plaintiffs cogitate that their civil rights were violated; as a result, plaintiffs speculate, or are at 

least hopeful, that they may be entitled to monetary damages from these state defendants. 

Plaintiffs have alleged violations of Article 3 of the ELCRA, MCL 37.2301, which 

prohibits discrimination in places of public accommodation or in the delivery of public services, 
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MCL 37.2302(a). Plaintiffs allege four separate violations of Article 3 of the ELCRA: (I) 

creating a sexually hostile prison environment, (II) failing to prevent and remedy a sexually 

hostile prison environment, (III) aiding and abetting violations of the ELCRA, and (IV) age 

discrimination. 

In three separate orders, the trial court denied the state defendants’ request to dismiss this 

lawsuit. This case presents three significant issues: (1) whether governmental immunity applies 

to a claim brought under Article 3 of the ELCRA, (2) whether 1999 PA 202 is constitutional, and 

(3) whether plaintiffs have stated a cognizable cause of action under Article 3 of the ELCRA. 

II. THE MAJORITY’S ERRONEOUS AND HISTORICALLY WRONG CONCLUSION

THAT GOVERNMENTAL IMMUNITY IS NOT APPLICABLE TO THIS CASE 

Plaintiffs and the majority opinion theorize that Article 3 of the ELCRA operates as a 

waiver of governmental immunity under the government tort liability act (GTLA), MCL 

691.1401 et seq. I respectfully disagree. Nothing in the language of Article 3 of the ELCRA

provides for a waiver of governmental immunity for state officials acting in their official 

capacity. Hence, state officials acting in their official capacity retain governmental immunity. 

The GTLA grants absolute immunity from tort liability to “the elective or highest 

appointive executive official of all levels of government . . . if he or she is acting within the 

scope of his or her . . . executive authority.” MCL 691.1407(5); Beaudrie v Henderson, 465 

Mich 124, 139 n 11; 631 NW2d 308 (2001). Other state officials have immunity from tort 

liability when all of the following conditions are met: 

(a) The officer [or] employee . . . is acting or reasonably believes he or she is 

acting within the scope of his or her authority. 

(b) The governmental agency is engaged in the exercise or discharge of a 

governmental function. 

(c) The officer’s [or] employee’s . . . conduct does not amount to gross negligence 

that is the proximate cause of the injury or damage. [MCL 691.1407(2).] 

To survive a motion for summary disposition based on governmental immunity, plaintiffs 

must plead in avoidance of governmental immunity and “allege facts warranting the application 

of an exception to governmental immunity.” Plunkett v Dep’t of Transp, 286 Mich App 168, 

180; 779 NW2d 263 (2009). Plaintiffs’ complaint hypothesizes that defendants’ policies or lack 

of policies caused the maltreatment of these plaintiffs. Remarkably, plaintiffs do not claim that 

any of the named defendants perpetrated any of the alleged abuse or harassment. Rather, the 

alleged criminal acts were committed by other prisoners or other non-parties. Even taking all of 

plaintiffs’ allegations as true, see McLean v Dearborn, 302 Mich App 68, 72-73; 836 NW2d 916

(2013), plaintiffs failed to plead any facts in their complaint that Article 3 of the ELCRA waives 

immunity for state officials acting in their official capacity when making policy decisions for the 
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State of Michigan. No such waiver exists in the ELCRA or the GTLA. The GTLA provides 

immunity for the state defendants acting in their official capacity in regards to policy decisions.1

That should be the end of this issue. 

Moreover, these state actors cannot be held vicariously liable for the criminal acts of third 

parties, or in a few instances, criminal acts of unnamed correctional officers who were clearly

acting outside the scope of their authority. In Hamed v Wayne Co, 490 Mich 1, 5; 803 NW2d 

237 (2011), the Supreme Court 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.” The Supreme Court rejected liability for these state actors, explaining that 

“permitting liability against defendants under these circumstances would impose too great a 

burden on public-service providers and on society in general, which is clearly contrary to the 

Legislature’s intent.” Id. at 30. 

In furtherance of preventing the burdensome consequences of holding state actors 

vicariously liable for the acts of their employees, the Supreme Court warned against artfully 

pleading a civil rights claim to bypass the GTLA: 

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. [Id. at 29 n 74.] 

Hamed clearly holds that plaintiffs cannot avoid the GTLA by simply alleging a violation 

of the ELCRA. Plaintiffs, to their innovative credit, have artfully pleaded a cause of action 

exactly as the Supreme Court cautioned in Hamed should not be done. 

I would also note that the GTLA, which grants immunity to state officials acting in their 

official capacity, MCL 691.1407, amended in 1986, is the later statutory enactment. See Jones v 

Bitner, 300 Mich App 65, 76; 832 NW2d 426 (2013). “It is a well-known principle that the 

Legislature is presumed to be aware of, and thus to have considered the effect on, all existing 

statutes when enacting new laws.” Walen v Dep’t of Corrections, 443 Mich 240, 248; 505

 1 Plaintiffs have sued the state defendants in both their individual capacity and in their official 

capacity, but plaintiffs’ complaint does not make any allegations against the individual 

defendants acting in their individual capacity. 
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NW2d 519 (1993). “Courts cannot assume that the Legislature inadvertently omitted from one 

statute the language that it placed in another statute, and then, on the basis of that assumption, 

apply what is not there.” Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 

(1993). If the Legislature intended to waive the historical grant of immunity to state officials 

acting in their official capacity, it is incumbent on the Legislature to expressly state that such a 

waiver exists. No such waiver is found in the ELCRA or the GTLA. This Court cannot by dicta 

infer such a waiver. We are required to follow the GTLA, as the later and the more specific act. 

If the aforementioned law is not sufficient, I would additionally note that the majority 

opinion cites three Article 2 employment cases2 for the alleged proposition that governmental 

immunity is not a defense to a civil rights action. Surprisingly, I concur with this singular,

isolated, and irrelevant statement of the law—the GTLA is not an affirmative defense to any 

cause of action. See Mack v Detroit, 467 Mich 186, 200-203; 649 NW2d 47 (2002). 

Accordingly, plaintiffs must plead in avoidance of the GTLA. 

I find the majority’s short and incomplete analysis of the law in regards to governmental 

immunity to be disturbing. The majority opinion makes no attempt to discern if plaintiffs have 

pled their case in avoidance of governmental immunity, to discern which statute is the latest in 

time, or to cite any Article 3 cases that have held that governmental immunity is a defense to a 

civil rights action under Article 3. Plaintiffs have not pleaded in avoidance of governmental 

immunity. Therefore, the state actors acting in their official capacity retain governmental 

immunity as set forth in the GTLA. 

III. THE MAJORITY’S MISGUIDED CONCLUSION THAT 1999 PA 202 IS 

UNCONSTITUTIONAL 

The majority opinion, without any discernable statutory analysis and without any 

accepted constitutional analysis, declares that the Legislature acted outside the scope of its 

constitutional authority when it enacted 1999 PA 202 (the amendment). I humbly suggest that it 

is the majority opinion that has acted outside the scope of its authority, not the Legislature. 

A. HISTORY OF THIS LITIGATION 

In the words of George Santayana, “Those who cannot remember the past are condemned 

to repeat it.” 

This case and its predecessors, including Neal v Dep’t of Corrections, 230 Mich App

202; 583 NW2d 249 (1998) (Neal I), and Neal v Dep’t of Corrections (On Rehearing), 232

Mich App 730; 592 NW2d 370 (1998) (Neal II), has a 20-year history. In 1998, this Court

decided Neal I, 230 Mich App at 209-215, in which a majority held that prisons were not a place

of public accommodation or a place of public service, as defined by the ELCRA, MCL 

37.2301(b). On rehearing, one judge reversed her position, and the majority concluded that 

 2 Article 2 of the ELCRA only pertains to employee-employer relationships. Article 2 does not 

apply to this case because plaintiffs are not employees of defendants. 
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prisons provided a public service on the basis of the statutory definition of “public service,” MCL 

37.2301(b). Neal II, 232 Mich App at 735-736.

3 In response to a statement in Neal II, 232 

Mich App at 740, that the Legislature did not explicitly exclude prisoners from the ELCRA, 

the Legislature passed the 1999 amendment to do just that. If that were not sufficient 

precedent to uphold the amendment, I note that a 2000 conflict panel of this Court gave the same 

advice to the Legislature in Doe v Dep’t of Corrections, 240 Mich App 199, 201; 611 NW2d 1 

(2000), stating that the Legislature should draft the statute to reflect its intent that the statute does 

not apply to prisoners and prisons. 

When viewed in its correct context, it is obvious that 1999 PA 202 clarified the

definition of “public service” found in MCL 37.2301(b). The amendment was not meant to

deprive any person of any rights guaranteed under our constitution; it simply amended the

definition of the term “public service.” 

Paradoxically, the Legislature did exactly as two panels of this Court advised it to do. 

Today, the majority opinion rebukes the advice of two prior panels of this Court and declares 

1999 PA 202 unconstitutional. Such an action by a panel of this Court is unprecedented in the 

history of this Court, especially when prisons do not provide a public service as that term is 

defined in Article 3 of the ELCRA. 

B. STANDARD OF REVIEW 

The majority opinion has set forth a constitutional barrier to the 1999 amendment and, 

unsurprisingly, found the legislation unable to surmount that barrier. The majority opinion fails 

to set forth a standard of review for its analysis of the 1999 amendment. Appellate courts cannot 

strike down a legislative enactment on the basis of a nonexistent standard of review. 

A constitutional challenge to the validity of a statute can be brought in one of two ways,

by either a facial challenge or an as-applied challenge. “The party challenging the 

constitutionality of the statute has the burden of proving the law’s invalidity.” Gillette 

Commercial Operations North America & Subsidiaries v Dep’t of Treasury, 312 Mich App 394, 

414-415; 878 NW2d 891 (2015) (citation and quotation marks omitted). The challenging party 

must overcome a heavy burden because “[s]tatutes are presumed to be constitutional, and we 

have a duty to construe a statute as constitutional unless its unconstitutionality is clearly 

apparent.” Mayor of Cadillac v Blackburn, 306 Mich App 512, 516; 857 NW2d 529 (2014)

(citation and quotation marks omitted). 

 3 I note that the majority opinion, in Neal II, took a wrong turn at its discussion of the decision in 

Pennsylvania Dep’t of Corrections v Yeskey, 524 US 206; 118 S Ct 1952; 141 L Ed 2d 215

(1998). See Neal II, 232 Mich App at 735-736. Yeskey, 524 US at 209-210, held that the 

definition of a “public entity” in the Americans with Disabilities Act of 1990 (ADA), 42 USC 

12131(1)(B), applied to prisons and prisoners because it contained no exceptions excluding 

prisons. The ELCRA, on the other hand, does have such an exception, including the 1999 

amendment as set forth in MCL 37.2301(b), which specifically excludes prisons and prisoners. 
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Plaintiffs do not address which type of challenge they bring to the 1999 amendment. At 

best, plaintiffs’ allegation could be considered an as-applied challenge, meaning that the claimant 

has alleged “ ‘a present infringement or denial of a specific right or of a particular injury in 

process of actual execution’ of government action.” Bonner v City of Brighton, 495 Mich 209, 

223 n 27; 848 NW2d 380 (2014), quoting Village of Euclid, Ohio v Amber Realty Co, 272 US 

365, 395; 47 S Ct 114; 71 L Ed 303 (1926). “The practical effect of holding a statute 

unconstitutional ‘as applied’ is to prevent its future application in a similar context, but not to 

render it utterly inoperative.” Ada v Guam Society of Obstetricians & Gynecologists, 506 US 

1011, 1012; 113 S Ct 633; 121 L Ed 2d 564 (1992) (SCALIA, J., dissenting). 

C. TRADITIONAL CONSTITUTIONAL ANALYSIS 

“The Equal Protection Clauses of the United States and Michigan Constitutions provide

that no person shall be denied the equal protection of the law.” Electronic Data Sys Corp v Flint 

Twp, 253 Mich App 538, 551; 656 NW2d 215 (2002), citing US Const, Am XIV; Const

1963, art 1, § 2. “To comply with the Equal Protection Clause . . . , defendant is required to

exercise equal treatment of similarly situated” individuals. Lear Corp v Dep’t of Treasury,

299 Mich App 533, 538; 831 NW2d 255 (2013) (citation and quotation marks omitted). If the 

state has a “rational basis” for treating similarly situated individuals differently, the state action 

will survive a constitutional equal protection challenge. See Lear Corp, 299 Mich App at 538-

539. The rational basis test applies only when the equal protection challenge does not allege a 

claim based on a suspect classification or a fundamental right or an intermediate classification, 

such as gender. Phillips v Mirac, Inc, 470 Mich 415, 432; 685 NW2d 174 (2004). 

The majority declares that 1999 PA 202 must be struck down because Const 1963, art 1, 

§ 2 contains a mandate. The constitutional provision upon which the majority relies to strike 

down the amendment states that the “legislature shall implement this section by appropriate 

Legislation.” Const 1963, art 1, § 2 (emphasis added.) The majority opinion states, “the 

legislature was constitutionally mandated to implement protections to any and all persons and 

lacked authority to exclude anyone[,]” ante at 8, meaning that if any legislation treats any person 

differently than any other person, that legislation must be struck down as unconstitutional. 

Putting aside the question of what, if any, law would pass such a contrived test, I would simply 

state that the law provides that a party challenging the facial constitutionality of an act “must 

establish that no set of circumstances exists under which the [a]ct would be valid. The fact that 

the [act] might operate unconstitutionally under some conceivable set of circumstances is 

insufficient to render it wholly invalid[.]” United States v Salerno, 481 US 739, 745; 107 S Ct 

2095; 95 L Ed 2d 697 (1987) (emphasis added). 

The primary error of the majority opinion is its adoption of plaintiffs’ assertion that 

prisoners and non-prisoners are similarly situated in all aspects of this case. “Resident inmates 

are obviously members of the public in a general sense[,]” but “[t]he rights of . . . inmates are 

severely restricted while they are incarcerated.” Martin v Dep’t of Corrections, 424 Mich 553, 

565; 384 NW2d 392 (1986) (CAVANAGH, J., dissenting). Prisoners and non-prisoners 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. 
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I conclude the 1999 amendment has a rational basis for its existence. In this regard, I

concur with Judge Riordan’s opinion in Doe v Dep’t of Corrections, 312 Mich App 97, 134; 

878 NW2d 293 (2015), vacated in part 499 Mich 886 (2016), 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. Prisoners file an 

unprecedented number of lawsuits. The cost to the state has skyrocketed. In one instance, one 

prisoner has filed 5,813 lawsuits and counting.4 The Legislature recognized that including 

prisons in the definition of “public service,” MCL 37.2301(b), is problematic. Prisoners could 

sue for loss of their right to vote or for the loss of their Second Amendment right to carry a gun 

in prison. Therefore, there exists a rational basis for excluding prisons from the definition of 

“public service” in Article 3 of the ELCRA.5 

Even assuming prisoners are in some respects similarly situated to non-prisoners, the 

Legislature can make special provisions for prisoners based upon their circumstances. In this 

case, plaintiffs make no allegations that certain prisoners were treated differently than other 

prisoners. As long as the Legislature does not discriminate within the unique class of individuals 

known as prisoners, no equal protection violation occurs. 

Equal protection is not premised on an underlying independent right to a service or 

privilege; it prohibits the invidious discrimination among potential recipients of benefits or rights 

after the decision has been made to establish the right. See Arnett v Kennedy, 416 US 134, 163; 

94 S Ct 1633; 40 L Ed 2d 15 (1974). Even if we were to assume that the definition of “public 

service” in Article 3 of the ELCRA applies to prisons and prisoners, plaintiffs’ complaint does 

not allege any invidious discrimination among potential recipients of any prison services. More 

importantly, it does not discriminate based upon a prisoner’s status as a prisoner, but treats all 

prisoners the same and has a rational basis for its realistic goal. 

D. LEGISLATIVE PREROGATIVE 

Our Constitution provides that “[n]o person exercising powers of one branch [of 

government] shall exercise powers properly belonging to another branch . . . .” Const 1963, art 

3, § 2. As I stated in my dissent in Council of Organizations & Others for Education About 

 4 See https://www.usatoday.com/story/news/nation/2014/08/14/inmate-has-filed-5813-lawsuits--

and-counting/14092317/. 

5 The unintended ramifications of the majority opinion are significant. The majority opinion 

allows prisoners, who are already the largest group of litigators in the state, to sue all state 

officials, including prosecutors, judges, the governor and all state officials acting in their official 

capacity, for ordinary decisions that these officials make each day. If a prisoner is not satisfied 

with a bond determination, a sentencing decision, or a prisoner classification, a prisoner can now 

sue for an Article 3 civil rights violation, and the GTLA is inapplicable. Any and all decisions 

made by prosecutors, state officials, and judges will now be subject to prisoner lawsuits claiming 

a violation of their civil rights, including all judicial sentencing decisions and all prosecutorial 

charging decisions. The floodgates are now open. 
-11-

Parochiaid v Governor, 216 Mich App 126, 135; 548 NW2d 909 (1996) (O’CONNELL, J., 

dissenting), “the judiciary has no legislative powers, and, thus, it cannot act as a ‘super 

legislature’ to sit in review of the policy choices made by coordinate branches of government 

acting within their respective spheres of authority.” It is the Legislature that makes the laws. 

The Court’s job is to interpret the law. In my opinion, the majority has encroached on the sphere 

of authority reserved to our Legislature, thereby violating the doctrine of separation of powers. 

The scope or purview of a legislative act is reserved to the Legislature. This case is 

similar to Will v Mich Dep’t of State Police, 491 US 58, 71; 109 S Ct 2304; 105 L Ed 2d 45 

(1989), in which the United States Supreme Court held that “neither a State nor its officials 

acting in their official capacities are ‘persons’ under [42 USC] 1983.” In rejecting plaintiff’s 

claim that the state and state officers were persons for the purpose of a 42 USC 1983 civil rights 

action, the Supreme Court explained that the language of § 1983 did not signal clear 

congressional intent to subject the states to liability. Id. at 64-65. 

In the present case, the Legislature is simply defining the scope of its own legislative 

enactment. I simply repeat what the Legislature has stated in the enabling act to the 1999 

amendment that prisons are not within the purview of “public service” as defined by Article 3 of 

the ELCRA. See 1999 PA 202, enacting § 1. The 1999 amendment’s purpose was to define the 

scope of the term “public service,” MCL 37.2301(b), consistent with the Legislature’s task to 

define what “appropriate legislation” is, Const 1963, art 1, § 2. Article 3 of the ELCRA only 

applies to establishments that are “open to the public[.]” See MCL 37.2303. Furthermore, MCL 

37.2302 states, “[e]xcept where permitted by law,” thereby providing discretion to the 

Legislature to decide the scope of Article 3. When read in context, there is nothing 

unconstitutional in the language of 1999 PA 202. 

The Legislature’s intent was to state that those parts of prisons that do not deal with the 

public do not fall within the purview of Article 3 of the ELCRA’s definition of “public service.”

The why is simple—that part of prisons that houses prisoners does not provide a public service 

as defined in the Act. Prisoners do not perform a public service; they do not deal with the public. 

Additionally, that part of prisons that houses prisoners was not intended to interact with the 

public. In fact, it is just the opposite; prisoners by their own behaviors are a tremendous burden 

on society. Hence, prisoners do not fall within the purview of Article 3 of the ELCRA. 

Plaintiffs claim that they are being denied the right of access to the courts. Plaintiffs cite 

Furman v Georgia, 408 US 238, 290; 92 S Ct 2726; 33 L Ed 2d 346 (1972) (BRENNAN, J., 

concurring), for the proposition that prisoners retain a fundamental “right of access to the 

courts.” No doubt that access to the courts is a fundamental right, but the 1999 amendment’s 

purpose was to define the scope of the term “public service,” not to deny anyone access to the 

courts. This lawsuit is exhibit one that plaintiffs have not been denied access to the courts. 

Because the Legislature drafted the ELCRA, it can and should clearly define the scope of 

its own statutory enactment. Despite this, the majority not only usurps the prerogative that our 

Constitution grants the Legislature in this context of defining the scope of the amendment but 

then proceeds to strike down the Legislature’s definition of the scope of Article 3’s definition of 

“public service.” 
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IV. PLAINTIFFS’ FAILURE TO SET FORTH A COGNIZABLE CAUSE OF ACTION

UNDER MICHIGAN’S CIVIL RIGHTS ACT 

This case does not require this Court to declare an act of the Legislature unconstitutional. 

Courts must avoid constitutional issues if a case can be resolved on the basis of statutory 

interpretation. English v Blue Cross Blue Shield of Mich, 263 Mich App 449, 455; 688 NW2d 

523 (2004). I believe this case can be resolved on statutory grounds. There is no need to 

interfere with the responsibilities of another branch of government. 

A. WHAT THIS CASE IS NOT ABOUT 

Prior to addressing the substance of plaintiffs’ allegations, this Court has the 

responsibility of deciding if plaintiffs’ cause of action is cognizable under Article 3 of the 

ELCRA. Plaintiffs’ sophisticated complaint is similar to a Gordian knot that must be unwound 

to fully understand the gravity of plaintiffs’ allegations. Before engaging in an analysis of 

plaintiffs’ allegations, for clarification purposes, it may be easier to state what principles are not 

involved in the present case. 

First: Plaintiffs’ complaint does not allege a constitutional tort. Our Supreme Court has 

defined a constitutional tort as an allegation “that the state, by virtue of custom or policy, has 

violated a right conferred by the Michigan constitution . . . .” Smith v Dep’t of Public Health, 

428 Mich 540, 544; 410 NW2d 749 (1987), aff’d sub nom Will, 491 US 58. Plaintiffs do not 

allege a cause of action under Michigan’s Equal Protection Clause, Const 1963, art 1, § 2. It 

should also be noted that had plaintiffs filed an action under Const 1963, art 1, § 2, plaintiffs 

would not be entitled to money damages. See Sharp v Lansing, 464 Mich 792, 800 n 9; 629 

NW2d 873 (2001). Our Supreme Court has declined to infer a damages remedy from the Equal 

Protection Clause because the authority to allow money damages for an equal protection 

violation belongs to the Legislature. Lewis v Michigan, 464 Mich 781, 786-789; 629 NW2d 868 

(2001). 

Second: Plaintiffs’ complaint does not allege a cause of action under the United States 

Constitution’s Equal Protection Clause, US Const, Am XIV. Nor do plaintiffs allege a 

constitutional claim under the Eighth Amendment of the United States Constitution. See Carlton 

v Dep’t of Corrections, 215 Mich App 490, 502-504; 546 NW2d 671 (1996). Furthermore, the 

state and its officials acting in their official capacity cannot be sued for monetary damages under 

42 USC 1983. See Will, 491 US at 71. Also, states are immune “from suit in state and federal 

courts.” Ernst v Rising, 427 F3d 351, 358 (CA6, 2005).6 

 6 The Sixth Circuit neatly summarized the source and scope of sovereign immunity: 

From birth, the States and the Federal Government have possessed certain 

immunities from suit in state and federal courts. For the Federal Government, 

that immunity flows not from any one provision in the Constitution but is derived 

by implication from the nature of sovereignty itself. For the States, that immunity 
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Third: Plaintiffs do not allege that the state defendants committed any traditional torts. 

To impose tort liability on a state official, the official must be “the proximate cause” of the 

injury, “meaning the one most immediate, efficient, and direct cause preceding an injury.” 

Robinson v Detroit, 462 Mich 439, 458-459; 613 NW2d 307 (2000). Plaintiffs do not allege in 

their complaint that the named defendants, in their official capacity or in their individual 

capacity, committed any traditional torts. 

Fourth: Plaintiffs do not allege that this case is an employment action under Article 2 of 

the ELCRA. Plaintiffs’ complaint does a nice job at attempting to conflate an Article 2 

employment cause of action with an Article 3 public service cause of action, but, suffice it to say, 

no Michigan cases have recognized such a conflated cause of action. The fact that prisons are a 

hostile environment, or as plaintiffs state, a sexually hostile prison environment, has never been 

recognized as an Article 3 cause of action in a published case. 

Fifth: Plaintiffs do not allege that the ELCRA is co-extensive with Michigan’s equal 

protection clause. The ELCRA is best described as a codification of the equal protection clause 

but “broadened to include categories not covered under the constitution, such as age, sex and 

marital status.” Neal II, 232 Mich App at 739.7 For this reason, the trial court’s and plaintiffs’ 

citation to Mason v Granholm, unpublished opinion of the United States District Court for the 

Eastern District of Michigan, issued January 23, 2007 (Docket No. 05-73943), is misguided. 

Mason’s other conclusion “that the 1999 amendment was not curative” is also wrong. The 

amendment’s enabling act explicitly provides, in plain English, that the 1999 amendment “is 

curative and intended to correct any misinterpretation of legislative intent in the court of appeals 

decision [Neal II,]” 1999 PA 202, enacting § 1. The enabling act stated the Legislature’s 

“original intent . . . that an individual serving a sentence of imprisonment in a state or county 

correctional facility is not within the purview of this act.” Id. Ironically, if they were coextensive, plaintiffs may not be entitled to monetary damages. 

But, if plaintiffs can artfully allege a valid public service claim under Article 3 of the 

ELCRA, they would be entitled to monetary damages. See Hamed, 490 Mich at 29 n 74. At 

 

flows from the nature of sovereignty itself as well as the Tenth and Eleventh 

Amendments to the United States Constitution. The States’ immunity from suits 

in federal court applies to claims against a State by citizens of the same State as 

well as to claims against a State by citizens of another State. The immunity also 

applies to actions against state officials sued in their official capacity for money 

damages. [Ernst, 427 F3d at 358 (citations and quotation marks omitted).] 

7 Although Neal II stated that the ELCRA was co-extensive with Michigan’s Equal Protection 

Clause, Neal II quickly corrected itself to describe ELCRA as a codification of the Equal 

Protection clause but broadened to include classifications not included in the Constitution. See 

Neal II, 232 Mich App at 739. 
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issue in this case is whether such a cause of action exists under Michigan law and whether 

plaintiffs’ complaint has set forth such a cause of action.8 

B. SEXUALLY HOSTILE PRISON ENVIRONMENT 

In their complaint, plaintiffs allege that defendants’ “acts and omissions constitute sexual 

harassment and violate Plaintiffs’ rights under the ELCRA[.]” The ELCRA’s definition of 

sexual harassment underscores a fatal flaw with plaintiffs’ case. The ELCRA defines sexual 

harassment as follows: 

Discrimination because of sex includes sexual harassment. Sexual 

harassment means unwelcome sexual advances, requests for sexual favors, and 

other verbal or physical conduct or communication of a sexual nature under the 

following conditions: 

(i) Submission to the conduct or communication is made a term or 

condition either explicitly or implicitly to obtain employment, public 

accommodations or public services, education, or housing. 

(ii) Submission to or rejection of the conduct or communication by an 

individual is used as a factor in decisions affecting the individual’s employment, 

public accommodations or public services, education, or housing. 

(iii) The conduct or communication has the purpose or effect of 

substantially interfering with an individual’s employment, public 

accommodations or public services, education, or housing, or creating an 

intimidating, hostile, or offensive employment, public accommodations, public 

services, educational, or housing environment. [MCL 37.2103(i).] 

Nothing in plaintiffs’ complaint alleges, either explicitly or implicitly, that a term or

condition of plaintiffs’ receipt of public services is submission to conduct or communication of

 8 In this regard, plaintiffs’ attorneys are a creative lot. They are attempting to create causes of 

action that have never previously existed or been recognized by existing law. In my opinion, 

courts should act as gatekeepers and scrutinize these complaints to determine if the alleged 

(manufactured) constitutional torts (civil rights torts) have any basis in law or fact or if they are 

subsumed by statutory claims. See Mays v Governor, ___ Mich App ___; ___ NW2d ___ (2018)

(Docket Nos. 335555, 335725, 335726), and Boler v Earley, 865 F3d 391 (CA6, 2017). 

In the present case, alleging that prisons are a “sexually hostile prison environment” as a 

basis for a cause of action against state officials is nonsensical. Prisons house murderers, rapists, 

pedophiles, and individuals who have established that they cannot conform to society’s 

minimum standards of behavior or accountability. Plaintiffs suggest that we reward all prisoners 

for their involuntary participation in “a sexually hostile prison environment.” No amount of 

governmental oversight can change prisons into a nonhostile environment. 
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a sexual nature. In addition, plaintiffs’ complaint fails to allege that these state defendants

committed any “unwelcome sexual advances, requests for sexual favors, and other verbal or

physical conduct or communication of a sexual nature” in the provision of public services. 

Moreover, the vast majority of hostile environment civil rights act cases involve

employment cases under Article 2 of the ELCRA. Plaintiffs have not cited a published hostile 

environment case that involves a prison setting as it relates to the term “public services” as

found in Article 3 of the ELCRA. No such case exists. I conclude that no reason exists to

extend hostile environment cases beyond employment cases. For that reason alone, plaintiffs’

complaint fails to state a hostile environment cause of action under Article 3 of the ELCRA. 

If plaintiffs are correct, then every single prisoner in the State of Michigan can sue the 

state for being placed in a sexually hostile prison environment. I for one will not be the first

judge to extend the hostile environment line of cases to state prisons. That is a public policy

question best left to the Legislature or the Supreme Court. 

C. AGE DISCRIMINATION 

Plaintiffs allege that the state’s customs and policies discriminated against youthful 

offenders, but, when read in context, plaintiffs’ actual complaint is that the state defendants 

should have treated youthful offenders differently than non-youthful offenders. The difficulty

with such a cause of action is that Article 3 of the ELCRA does not impose any affirmative

duties upon these state defendants to draft new policies. The only duty imposed by Article 3 is

that the state shall not discriminate when delivering public services. Plaintiffs’ complaint is

devoid of any allegations that the state or its officials affirmatively discriminated against these

youthful offenders when delivering a public service. In short, plaintiffs want this Court to 

recognize an Article 3 cause of action for failing to treat prisoners differently. 

Defendants cannot be liable under Article 3 of the ELCRA just because there may be a

better way to achieve a goal or a better way to run a prison. No Michigan case law and no

statutory language support the concept that failure to institute different policies, customs, or

practices can provide a basis for imposing liability on a governmental agency. See

Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 181-184; 615 NW2d 702 (2000) (holding that 

the “highway exception” to governmental immunity does not impose a duty on the state or county 

road commissions “to install additional traffic signs or signals that might conceivably have made 

the intersection safer”). While, as in this case, a decision to adopt new policies, customs, or

practices may be prudent and advisable, those decisions are best left to the executive or

legislative branch. Article 3 of the ELCRA does not provide a cause of action for such a claim. 

These state defendants did not deny these plaintiffs a public service on the basis of plaintiffs’ age 

or other suspect classification or as a term or condition of getting a specific public service. 

D. OTHER REMEDIES 

It is important to note that plaintiffs are not left without a remedy if this Court determines 

that plaintiffs’ claims do not fall within the scope of Article 3 of the ELCRA. Youthful 

offenders and other prisoners have remedies under statutory enactments and other provisions of 

the Michigan Constitution, including the Equal Protection Clause, 1963 Const, art 1, § 2. The 
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Equal Protection Clause does not carry a damages remedy, however, because the authority to 

allow money damages for an equal protection violation belongs to the Legislature. 

To be candid, the hidden issue in this case is monetary damages. Plaintiffs have filed a 

claim in federal court, in part, alleging violations of 42 USC 1983. Plaintiffs’ attorney admits 

that “monetary damages” are not available in federal court because “federal rules bar the 

collection of damages from the state or state agencies.” Hence, plaintiffs have filed a duplicate 

action in state court alleging a violation of Article 3 of the ELCRA. 9 Plaintiffs’ only avenue to 

collect monetary damages against the state or state agencies is to awkwardly attempt to fit their

claim into an ELCRA action, but plaintiffs’ cause of action does not fit into the scriptures of an 

Article 3 civil rights violation. 

Plaintiffs allege egregious acts perpetrated against them by third parties that, if true, are 

significant and deserve remediation under the law. However, the remedy is not for this

Court, based upon a visceral response, to reengineer the law to discard governmental 

immunity for state actors or to conclude that prisoners and non-prisoners are similarly 

situated for purposes of an equal protection argument. 

V. CONCLUSION 

In essence, plaintiffs seek money damages against the state for failing to institute better

safeguards in prison. But plaintiffs have not pleaded in avoidance of governmental immunity. 

Furthermore, this case can be decided on statutory grounds. There is no need to declare 1999 PA 

202 unconstitutional. Even if I were to decide this case on constitutional grounds, plaintiffs make 

no claim that they were treated differently than a similarly situated class of prisoners. Prisoners 

and non-prisoners are not members of the same class for purposes of this lawsuit. Plaintiffs’

actual claim is that the state should have discriminated in favor of youthful offenders. That

claim is a policy decision for the executive branch or the legislative branch to resolve. 

Because of the separation of powers doctrine, courts should not be involved in the day-today operation of the duties or responsibilities of other branches of government.10

 9 See http://www.bridgemi.com/children-families/are-teen-prison-rapes-violation-civil-rightsmichigan-court-about-decide. 

10 When the ELCRA was drafted by the Legislature in 1977, its central purpose was to define the 

term civil rights as it is applicable to the public. As such, the ELCRA sets the parameters and 

guidelines for eligible civil rights claims that were not originally included in the Michigan 

Constitution. 

In 1977, and again in 1999, the Legislature decided that prisons and prisoners are not within the 

scope of Article 3 causes of action. It must be emphasized that prisoners are not entitled to the 

same freedoms as non-prisoners. I doubt if any prisoner would refer to his jail cell as a “public 

accommodation” in the same manner that a non-incarcerated individual refers to a stay at a 

Holiday Inn, or that any prisoner would claim that a prison is performing a public service by 
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The truth of the matter is that prisons are a dangerous place. No matter what rules,

customs, practices or policies are instituted in state prisons, the state cannot prevent all misdeeds

by perpetrators of criminal behavior. The majority’s desire to cure all wrongs by eviscerating the 

doctrine of governmental immunity, while well-intentioned, is fraught with the law of 

unintended consequences. Depriving governmental officials of governmental immunity when 

making policy decisions, when making sentencing decisions, and when running the government,

would certainly cause most of us to rethink the traditional notion of public service. 

For the reasons stated in this opinion, I would reverse the decision of the trial court and

remand this case for further proceedings consistent with this opinion. 

/s/ Peter D. O’Connell

 

involuntary incarcerating him. I simply note it is the Legislature that has the responsibility to 

define the scope of the ELCRA. 

Plaintiffs can still bring a cause of action under Articles 1, 2, 4, 5, and 6 of the ELCRA. 

Plaintiffs are not being denied their civil right, as they claim, to bring a cause of action under the 

ELCRA. The issue in this case is very narrow. Simply stated, prisons and prisoners do not 

provide a public service as that term is defined by the Legislature in Article 3 of the ELCRA.