Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED MARCH 28, 2007 GREGORY HAYNES, Plaintiff-Appellant,

v No. 129206 MICHAEL J. NESHEWAT, ROBERT J. MURRAY, and BRIAN PELTZ, Defendants, and OAKWOOD HEALTHCARE, INC. and OAKWOOD HOSPITAL-SEAWAY CENTER, Defendants-Appellees.

BEFORE THE ENTIRE BENCH KELLY, J. We granted leave to appeal to determ ine whether plaintiff has stated a cause of action under MCL 37.23 02, the public accommodations provision of the Civil Rights Act (CRA). This case arose when plaintiff, Dr. Gregory Haynes, an African-American physician with staff pr ivileges at Oakwood Hospital-SeawayCenter, alleged that defendants treated him differently than similarly situated white physicians on the basis of his race. Plaintiff claims that a result of this different treatment was that he was deprived of the ability and o pportunity to fully utilize the medical facilities in violation of the CRA. Defendants moved for summary disposition of the CRA claims, arguing that plaintiff’s allegations did not come within the scope of the act. The trial court rejected defendants’ ar guments and denied the motio n. A divided Court of Appeals reversed and decide d that MCL 37.2302(a) addre sses discrimination with respect to services made ava ilable only to the public. We disagree. We find that MCL 37.2302 prohibits unlaw ful discrimination against any individual, not just members of the public. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the tr ial court for further proceedings.
F ACTS A ND P ROCEDURAL H ISTORY Plaintiff is a physician licensed in the state of Michigan with specialties in internal medicine and gastroenterology. In order to care for patients requiring hospitalization, plaintiff has maintain ed, and still maintain s, medical staff membership and clinical privileges at Oakw ood Hospital-Seaway Center. Plaintiff is the only African-American staff physicia n who conducts the majority of his hospital practice at Oakwo od. Defendant Oakwood Healthcare, Inc. (Oakwood), 1

1 Unless it is necessary to distingui sh between the two, both OakwoodSeaway Center and Oakwood Healthcare, In c., will be referenced as Oakwood.

2is a Michigan nonp rofit corporation that does business as Oakwood HospitalSeaway Center. Defendant Dr. Michael J. Neshewat was the chief of staff at Oakwood. On October 31, 2001, plaintiff file d his four-count complaint against defendants. 2 In the complaint, he asserted claims for violation of the CRA, tortious interference w ith business relationships and expectancies, negligence, and conspiracy under the CRA. Plaintiff a lleges that defendants have treated him differently than similarly situated physicians on the basis of his race. He claims that he has been subjected to excessive charges of unprofessional behavior and administrative hearings designed to disc ourage him from using the facilities at Oakwood. He also alleges that defendant s have attempted to steal his patients and have disparaged his professional comp etence in an effort to impair his relationships with patients and other physicians. 3 Plaintiff claims that this discriminatory treatment ha s deprived him of the ability and opportunity to fully and equally utilize the fac ilities at Oakwood.

2 The complaint named as defenda nts Oakwood Healthcare, Inc.; Dr. Michael Neshewat; Dr. Rob ert Murray; and Brian Peltz. Before the filing of defendants’ motion for summary dispos ition, Mr. Peltz and Dr. Murray were dismissed from the action by stipulation of the parties. Dr. Neshewat failed to appear or plead and a defau lt judgment was entered against him. Defendants opposed plaintiff’s motion for entry of a default judgm ent, thereby p reserving the right to challenge the trial court’s d ecision granting the default judgment. 3 Plaintiff’s medical practice is l argely dependent on referrals by patients and other physicians. Plaintiff claims th at defendant Neshewat intimidated other (continued...)

3________________ ______________ Defendants moved for summary dispos ition, arguing, among other things, that a hospital is not a place of public accommodation with respect to its decisions concerning staff privileges. The trial court granted defendants’ motion with respect to the claims of negligence and tortious interferen ce with business relationships. 4 Summary disposition was denied on the CRA claims pursuant to MCR 2.116(C)(8). The trial court determ ined that the CRA’s reach was broad enough to protect plaintiff’s privilege to practice medicine without plaintiff suffering racial discrimination within the hospital, a place of public accommodation. Defendants timely applied for, and were gr anted, interlocutor y review. In a split decision, the Court of Appeals reversed. Unpublished opinion per curiam, issued June 23, 2005 (Docke t No. 249848). Th e Court of Appeals majority held that a place of public accommodation exists only through the provision of goods, services, facilities, privileges, advantag es, or accommodations to the public. Services and privileges that a facility does not provide to the pu blic, it reasoned, do not implicate the public accommodations provision of the CRA. Therefore, the Court held that a health facility is cert ainly a place of public accommodation under the CRA in some respects. However, a physician’s complain t concerning his or

(...continued) physicians in an attempt to cause them to stop referring pa tients to him. Plaintiff alleges that he has been singled out for this treatment because of his race. 4 Plaintiff did not app eal from this ruling.

4her private medical staff pr ivileges at a hospital does not come within the purview of the public accommodations provisions. Judge Griffin dissented. He would have held that the denial of a physician’s full and equal enjoyment of ho spital staff privilege s because of racial discrimination is prohibited by the CRA. We granted plainti ff’s application for leave to appeal. 474 Mi ch 1000 (2006).
S TANDARD O F R EVIEW This case involves a ques tion of statutory interpretation, which we review de novo. Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 40; 709 NW2d 589 (2006). We also review de novo a tria l court’s decision on a motion for summary disposition. Id. Defendant’s motion for summary disposition was made pursuant to MCR 2.116(C)(8). 5 In reviewing a ruling made under this court rule, a court tests the legal sufficiency of the plaintiff’s complain t by the pleadings alone. Corley v Detroit Bd of Ed , 470 Mich 274, 277; 681 NW2d 342 (2004). The motion should be granted on ly if no factual developm ent could possibly justify
recovery. Beaudrie v Henderson , 465 Mich 124, 130; 631 NW2d 308 (2001).

5 MCR 2.116(C)(8) provides: (C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based: * * * (8) The opposing party has faile d to state a claim on which relief can be granted.

5A NALYSIS A. I NTERPRETING THE S TATUTE We are called on to decide whether plaintiff stated a cause of action under the public accommodations section of the CRA. He alleged that defendants’ discriminatory behavior de prived him of the opportunity to fully and equally utilize the Oakwood f acilities. Two provisions of the public accommodations section are relevant to our inquiry: MCL 37.2301(a) and MCL 37.2302(a). MCL 37.2301(a) defines the phrase “place of public accommodation” while MCL 37.2302(a) lists the rights persons cannot deny individuals in places of public accommodation on the basis of a protected characteristic. To resolve the issue befo re us, we must interpret the CRA. The primary goal of statutory interpretati on is to give effect to the in tent of the Legislature. Ford Motor Co v Woodhaven , 475 Mich 425, 438; 716 NW2d 247 (2006). If the statute is unambiguous, this Court will apply its language as written. Id. When a statute specifically defines a given t erm, that definition alone controls. Tryc v Michigan Veterans’ Facility , 451 Mich 129, 136; 545 NW2d 642 (1996). MCL 37.2302 provides in part: Except where permitted by law, a person shall not: (a) Deny an individual the full and equal enjoyment of the goods, services, facilities, pr ivileges, advantages, or accommodations of a place of pu blic accommodation or public service because of religion, race, colo r, national origin, age, sex, or marital status.

6In order to state a claim under MCL 37 .2302(a), plaintiff must establish four elements: (1) discrimination base d on a protected characteristic (2) by a person, (3) resulting in the denial of th e full and equal enjoyment of the goods, services, facilities, privileges, advantag es, or accommodations (4) of a place of public accommodation. Plaintiff claims that he was discrimina ted against because of his race. Race is one of the specifically lis ted protected characteristics. Therefore, this allegation sufficiently establishes the first element. The CRA defines “person” as “an individual, agent, association, corpora tion, joint apprentices hip committee, joint stock company, labor organization, le gal representative, mutual company, partnership, receiver, trust, trustee in bankruptcy, unincorporated organization, the state or a political subdivision of the state or an agency of the state, or any other legal or commercial entity.” MCL 37.2103 (g). Both defenda nt Neshewat and defendant Oakwood fit w ithin this definition. As a result, the second element is also sufficiently established. In order to establish the third element, plaintiff mu st have been denied the full and equal enjoyment of goods, servic es, facilities, privileges, advantages, or accommodations. The CRA does not define these terms. We give undefined terms their ordinary meanings. Koontz v Ameritech Services , Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). A dictionary may be consulted if necessary. Id. Webster’s defines “privilege” as “a right, immunity, or benefit enjoyed by a

7particular person or a restric ted group of persons.” Random House Webster’s College Dictionary (2001). Plaintiff has staff privileges at Oakwoo d. These privileges give him the right to use the hospital facilities to treat his patients. Staff privileges are “privileges” because they are a “right” or “benefit” th at is enjoyed only by a restricted group of people, in this case doctors. Thus, the full and equal enjoyment of staff privileges is protect ed by § 302(a). Plaintif f alleged that defendants interfered with his staff privilege s and that this denied hi m the opportunity to fully and equally utilize the facilities. This a llegation sufficiently establishes the third element of the statute. The last remaining inquiry is whet her Oakwood is a place of public accommodation. MCL 37.2301(a) provides in part: As used in this article: (a) “Place of public accommodation” means a business, or an educational, refreshment, entert ainment, recreation, health, or transportation facility, or institution of any kind, whet her licensed or not, whose goods, services, facilitie s, privileges, advantages, or accommodations are extended, offered , sold, or otherwise made available to the public. Oakwood provides a full range of health services to the public. It is a “business [or] . . . health . . . facility . . . whose goods, services, facilities, privileges, advantages, or accommoda tions are extended, offered, sold, or otherwise made available to the pub lic.” MCL 37.2301(a). Therefore, Oakwood

8qualifies as a place of public accommodation. See Whitman v Mercy-Memorial Hosp , 128 Mich App 155; 339 NW2d 730 (1983). As a result, all four elements of the statute are sufficiently established and plaintiff ha s stated a cause of action under the CRA.
B. MCL 37.2302(a) P ROTECTS I NDIVIDUALS , NOT M EMBERS OF THE P UBLIC Defendants argue, and the Court of App eals majority agreed , that plaintiff states a claim under § 302(a) only if he a lleges that he was deprived of goods, services, facilities, privileges, advant ages, or accommodations that were made available to the public. According to defendants, ev en if there has been an interference with plaintiff’s abili ty to practice as a physici an at Oakwood, plaintiff has not stated a cause of action. They reas on that the practice of medicine is not a privilege offered to the public . We reject this interpreta tion because it is contrary to the language of the statute. MCL 37.2302(a) protects th e rights of individuals. 6 Individuals, not members of the public, are protected fro m the denial of the full and equal enjoyment of the goods, services, fac ilities, privileges, advantages, or

6 MCL 37.2302 provides in part: Except where permitted by la w, a person shall not: (a) Deny an individual the full and equal enjoyment of the goods, services, facilities, pr ivileges, advantages, or accommodations of a place of pu blic accommodation or public service because of religion, race, colo r, national origin, age, sex, or marital status. [Emphasis added.]

9accommodations. Nowhere within the wordi ng of § 302(a) is it required that the goods, services, facilities, pr ivileges, advantages, or accommodations be offered to the public. We will not read into the statute a limitati on that is not there. We hold that MCL 37.2302(a) forb ids unlawful discriminatio n against any individual in a place of public accommodation, not just against members of the public.
C. K ASSAB The defendants argue that this cas e is controlled by our decision in Kassab v Michigan Basic Prop Ins Ass’n , 441 Mich 433; 491 NW2d 545 (1992). In Kassab , this Court decided that the CRA did not provide a remedy for discriminatory processi ng of insurance claims. Id. at 442. The Court concluded that, even if the insuran ce company was a “‘[p]lace of public accommodation,’” the CRA did not extend beyon d “‘services . . . made available to the public’” and so did not provide a cause of action to Mr. Kassab. Id . at 440-441. It held that, as long as the company provide d access to services, the CR A did not prevent it from discriminating in providing full and eq ual enjoyment of those services. Id. at 441. We conclude that the Court in Kassab erred by reading nonexistent limitations into the statute. To the extent that Kassab can be read to limit th e CRA inconsistently with our holding today, it is overruled. We are mindful of the doctrine of stare decisis and do not take lightly our decision to overrule Kassab . In Robinson v Detroit , 7 we discussed stare decisis

7 462 Mich 439; 613 NW2d 307 (2000).

10and the factors to be cons idered when deciding wh ether to overrule a prior decision. When evaluating the factors, the first questio n we ask is whether the earlier decision was wrongly decided. Id. at 464. As we discussed previously, Kassab was wrongly decide d. The Court erred by read ing a nonexist ent limitation into the statute. Finding that a prior decision was wr ongly decided is not the end of our inquiry. We must also weigh th e effects of overruling the decision. Id. at 466. This consideration involves a review of whether the decision “defies ‘practical workability,’ whether relian ce interests would work an undue h ardship, and whether changes in the law or facts no lo nger justify the ques tioned decision.” Id.
at 464. We find that there are no factors that counsel against overruling Kassab

. Kassab held that the CRA does not provide a cause of action for discriminatory processing of insurance clai ms. The fact that some parties may rely on a decision to protect them from civil lia bility for discriminatory behavior is not a reason to uphold an erroneous decision. This is especially true when the prior decision involves the interpretation of the CRA. The CRA impl ements the equal protection and antidiscrimination guarantees of the Michigan Constitution. It would be inconsistent with these constitutiona l guarantees to uphold an erroneous interpretation of the CRA.

11C ONCLUSION The public accommodations provision of the CRA, MCL 37.2302, does not limit its prohibition against discrimination to members of the public. Rather, § 302(a) prohibits unlawful di scrimination against any i ndividual’s full and equal enjoyment of the goods, services, fac ilities, privileges, advantages, or accommodations of a place of public accommodation. Plaintiff is a physician with staff and clinical privileges at Oakwood. By alleging that defendants’ discriminatory be havior deprived him of the opportunity to fully utilize the Oakwood medical facilities, plaintiff stated a cause of action under the CRA. The judgment of the Cour t of Appeals is reversed, and this case is remanded to the trial court for further pro ceedings consistent with this opinion. Reversed and remanded.
Marilyn Kelly Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

12v S T A T E O F M I C H I G A N
SUPREME COURT

GREGORY HAYNES, Plaintiff-Appellant,
No. 129206 MICHAEL J. NESHEWAT, ROBERT J. MURRAY, and BRIAN PELTZ, Defendants, and OAKWOOD HEALTHCARE, INC. and OAKWOOD HOSPITAL-SEAWAY CENTER, Defendants-Appellees.

KELLY, J. ( concurring ). This case requires us to interpret the public accommodations provision of the Civil Rights Act (CRA), MCL 37.2302. A unanimous Court agrees that this provision prohibits unlawful discrimination against any individual, and not just memb ers of the public. Ha ving authored the opinion, obviously I agree with it. But I write separatel y because I believe that it is important to set forth additional reasons for the decision to which not all my colleagues adhere. To start, I find frequent ambiguity in st atutory language. I do not subscribe to the belief that “only a few [statu tory] provisions are truly ambiguous.” Mayor of Lansing v Michigan Pub Service Comm , 470 Mich 154, 16 6; 680 NW2d 840(2004). For various reasons, not the leas t of which is the imprecise character of language, it is often impossible to dis cern legislative intent solely from the language written into statutes. As Ju stice Frankfurter eloquently stated: Unlike mathematical symbols, the phrasing of a document, especially a complicat ed enactment, seldom attains more than approximate precision. If indivi dual words are inexact symbols, with shifting variable s, their configurati on can hardly achieve invariant meaning or assured defin iteness. Apart from the ambiguity inherent in its symbols, a statute suffers from dubieties. It is not an equation or a formula representing a clearly marked process, nor is it an expression of an individual thought to which is imparted the definiteness a single authorship can gi ve. A statute is an instrument of government partaking of its p ractical purposes but also of its infirmities and limitations, of its awkward and groping efforts. [Frankfurter, Some reflections on the reading of statutes , 47 Colum L R 527, 528 (1947).] Accordingly, rather than restraining myself to the text and “mak[ing] a fortress out of the dictionary,” 1 I weigh on the balance any mat erial that illuminates legislative intent. In this case, I have found numer ous persuasive factors, not discussed in the majority opinion, that indi cate that this Court has reach ed the correct interpretation of the statute. 2

1 Cabell v Markham, 148 F2d 737, 739 (CA 2, 1945) (opinion by Hand, J.) 2 Justice Markman writes a concurring opinion criticizing my approach to statutory analysis, suggesting it lacks discipline. The aids to statutory construction I use in my concurring opinion are among many that have been applied by the Michigan Supreme Court sin ce long before either Justice Markman or I was born. Almost every justice who has ever sat in this Court would be shocked to hear the statutory analysis I use depreciated as “language-avoidan ce ‘interpretative’ techniques.” I agree with Ju stice Markman that aids to statutory analysis should (continued...)

2________________ ______________ A. R EMEDIAL S TATUTES The canon of statutory construction that remedial statutes are to be liberally construed is deeply imbedded in American jurisp rudence. Indeed, all 50

states 3 and courts in each federal circuit 4 have endorsed it. Even the United States

(...continued) not be misused and, I might add, that in cludes the “textualist” approach to which he so avidly subscribes. 3 See, e.g., Alabama: Austin v Alabama Ch eck Cashers Ass’n , 936 So 2d 1014, 1026 (Ala, 2005). Alaska: DH Blattner & Sons v NM Rothschild & Sons, Ltd , 55 P3d 37, 47 (Alas, 2002). Arizona: Special Fund Div v Industrial Comm , 191 Ariz 149, 152; 953 P2 d 541 (1998). Arkansas: Chicago Mill & Lumber Co v Smith , 228 Ark 876; 310 SW2d 8 03 (1958). California: Betancourt v Storke Housing Investors , 31 Cal 4th 1157; 82 P3d 286 (2003). Colorado: Christy v Ibarra , 826 P2d 361 (Colo App, 1991). Connecticut: Pereira v State , 228 Conn 535, 542; 637 A2d 392 (1994). Delaware: Vance v Irwin , 619 A2d 1163, 1164

- 1165 (Del, 1993 ). Florida: Joshua v City of Gainesville , 768 So 2d 432, 435 (Fla, 2000). Georgia: Mitchell v Wilkerson , 258 Ga 608, 610; 372 SE2d 432 (1988). Hawaii: Kalima v State , 111 Hawaii 84, 99; 137 P3 d 990 (2006). Idaho: Page v McCain Foods, Inc, 141 Idaho 342, 346; 109 P3d 1084 (2005). Illinois: Grant Contracting Co v Murphy , 387 Ill 137, 143; 56 NE2d 313 (1944). Indiana: United Nat’l Ins Co v DePrizio , 705 NE2d 455, 459-460 (Ind, 1999). Iowa: TLC Home Health Care, LLC v Iowa De p’t of Human Services, 638 NW2d 708, 714 (Iowa, 2002). Kansas: O’Donoghue v Farm Bure au Mut Ins Co, Inc, 275 Kan 430, 437; 66 P3d 822 (2003). Kentucky: City of Louisville v Slack , 39 SW3d 809, 815 (Ky, 2001). Louisiana: Jim Walter Homes, Inc v Guilbeau , 934 So 2d 239, 245 (La App, 2006). Maine: Bennett v Prawer , 2001 Me 172; 78 6 A2d 605 (2001). Maryland: Caffrey v Dep't of Liquor Control , 370 Md 272, 306; 805 A2d 268 (2002). Massachusetts: Gasior v Massachusetts Gen Hosp , 446 Mass 645, 654, 846 NE2d 1133 ( 2006). Michigan: Eide v Kelsey-Hayes Co , 431 Mich 26, 36; 427 NW2d 488 (1988). Minnesota: Foley v Whelan , 219 Minn 209, 213; 17 NW2d 367 (1945). Mississippi: Cahoon v Scarborough , 159 Miss 5, 10; 131 So 431 (1930). Missouri: Scheble v Missouri Clean Water Comm, 734 SW2d 541, 556 (Mo App, 1987). Montana: In re CH , 318 Mont 208, 214; 79 P3d 822 (2003). Nebraska: State v Kastle , 120 Neb 758, 77 2; 235 NW 458 (1931). Nevada: Virden v Smith , 46 Nev 208, 211; 210 P 12 9 (1922). New Hampshire: Newell v Moreau , 94 NH 439, 442; 55 A2d 476 (1947). New Jersey: Feldman v Hunterdon (continued...)

3________________ ______________ (...continued) Radiological Assoc , 187 NJ 228, 239; 901 A2 d 322 (2006). New Mexico: Mem Med Ctr v Tatsch Constr, Inc , 129 NM 677, 685; 12 P3 d 431 (2000). New York: Rizzo v New York State Div of Housing & Community Renewal , 6 NY3d 104, 114; 843 NE2d 739 (2005). North Carolina: Nationwide Mut Ins Co v Lankford , 118 NC App 368, 376; 455 SE2d 484 (1995). North Dakota: Schaefer v Job Service North Dakota, 463 NW2d 665, 666 (ND, 1990). Ohio: Clark v Scarpelli , 91 Ohio St 3d 271, 275; 744 NE2d 719 (2001). Oklahoma: Associated Indemnity Corp v Cannon , 1975 Okla 87; 536 P2d 920 (1975). Oregon: Rash v Employment Div , 85 Or App 570, 573; 73 7 P2d 966 (Or App, 1 987). Pennsylvania: School Dist v Montgomery , 227 Pa 370; 76 A 75 (1910). Rhode Island: Weybosset Hill Investments, LLC v Rossi, 857 A2d 231, 239 (RI, 20 04). South Carolina: Elliott v South Carolina Dep’t of Transportation, 362 SC 234, 237; 607 SE 2d 90 (SC App, 2004). South Dakota: Chiolis v Lage Dev Co , 512 NW2d 158, 163 (SD, 1994). Tennessee: Kannon v Pillow , 26 Tenn 281 (1846). Texas: Mecca Fire Ins Co v Stricker , 136 SW 599, 601 (Tex Civ App, 1911). Utah: Tolle v Fenley , 2006 Utah App 78; 132 P3d 63 (2006). Vermont: Celeste Washington Supreme Court v Pierce , 2005 Vt 125 (2005). Virginia: Brooks v Hannan , 53 Va Cir 465, 466 (2000). Washington: State ex rel Winston v Seattle Gas & Electric Co , 28 Wash 488, 493; 68 P 946 (1902 ). West Virginia: Plummer v Workers’ Compensation Div , 209 W Va 710, 713; 551 SE2d 46 (2001). Wisconsin: Dep’t of Transportation v Transportation Comm, 111 Wis 2d 80, 92; 330 NW2d 159 (1983). Wyoming: Wyoming Ins Guaranty Ass’n v Woods, 888 P2d 192, 195 (Wy, 1994).

4 See, e.g., First Circuit: Carew v Boston Elastic Fabric Co , 5 F Cas 56 (D Mass, 1871); United States, to Use and Benefit of Sargent Co v Century Indemnity Co , 9 F Supp 809 (D Me, 1935); Stevens v Bangor & Aroostook R Co , 97 F3d 595 (CA 1, 1996). Second Circuit: Imlay v Norwich & W R Co , 13 F Cas 1 (D Conn, 1858); Bossert Electric Constr Co v Pratt Chuck Co , 179 F 385 (CA 2, 1910); Pittston Stevedoring Corp v Dellaventura, 544 F2d 35 (CA 2, 1976); Rogers v Consolidated Rail Corp, 948 F2d 858 (CA 2, 1991); Travelers Ins Co v Carpenter , 411 F3d 323 (CA 2, 2005). Third Circuit: Sirkin v Phillips Colleges, Inc , 779 F Supp 751 (D NJ, 1991); Clarke v Unum Life Ins Co of America, 14 F Supp 2d 1351 (SD Ga, 1998). Fourth Circuit: Dorsey v Bowen , 828 F2d 246 (CA 4, 1987); Bass v City of Wilson , 835 F Supp 255 (ED NC, 1993). Fifth Circuit: Everett v Ribicoff, 200 F Supp 103 (ND Fla, 1961); Harris v Wal-Mart Stores, Inc , 205 F3d 847 (CA 5, 2000); Sixth Circuit: Jeter v Finch , 310 F Supp 1371 (ED Ky, 1970); Marshall v Davis , 517 F Supp 551 (WD Mich, 1981). Seventh Circuit: Smith v Packard , 98 F 793 (C A 7, 1900); Schweizer v Mager , 297 F 334 (ND Ill, 1924); Johnson v Runyon , 47 F3d 911 (CA 7, 19 95); Eighth Circuit: Surrisi v (continued...)

4________________ ______________ Supreme Court has adopted the canon an d construed many federal laws using it. 5 This long-established canon still has a place in Michigan law. Though it cannot be relied on to reach a result that is incons istent with statutory language, it is otherwise entitled to consideration. Plain tiff brought suit under the Michigan Civil Rights Act. As we have stated on prio r occasions, the CRA is a broad, remedial

statute. Eide v Kelsey- Hayes , 431 Mich 26, 36; 427 NW 2d 488 (1988). When

(...continued) Conwed Corp, 510 F2d 1088 (C A 7, 1975); Maune v IBEW, Loca l #1, Health & Welfare Fund , 83 F3d 959 (CA 8, 1996). Ninth Circuit: Mahroom v Hook, 563 F2d 1369 (CA 9, 1977); Smith v CMTA-IAM Pension Trust , 746 F2d 587 (CA 9, 1984); Carson Harbor Village, Ltd v Unocal Corp, 270 F3d 863 (CA 9, 2001). Tenth Circuit: In re Dederick Herzig , 91 F2d 646 (CA 10, 1937); Sierra Club v Seaboard Farms Inc , 387 F3d 1167 (CA 10, 2004). Eleventh Circuit: Hellums v Webster Industries, 97 F Supp 2d 1287 (MD Ala, 2000); Cusumano v Maquipan Int’l, Inc , 2005 US Dist LEXIS 30257 (M D Fla, 2005). D.C. Circuit: Bethel v Jefferson , 589 F2d 631 (1978); Thomas v Mineta , 310 F Supp 2d 198 (D DC, 2004)

. 5 The United States Supreme Court has us ed this canon in interpreting: the Securities and Exchange Act, 15 USC 78a et seq ., Tcherepnin v Knight, 389 US 332, 336; 88 S Ct 548; 19 L Ed 2d 564 (1967); patent laws, Winans v Denmead , 56 US 330, 341; 14 L Ed 717 (1854); the federal Mo tor Carrier Act, 49 USC 306, McDonald v Thompson, 305 US 263, 266; 59 S Ct 176; 83 L Ed 164 (1938); revenue statutes, United States v Hodson, 77 US 395, 406; 19 L Ed 937 (1870); the Longshoremens and Harbors Act, 39 USC 900 et seq. , Baltimore & Philadelphia Steamboat Co v Norton , 284 US 408, 414; 52 S Ct 187; 76 L Ed 366 (1932); the Fair Labor Sta ndards Act, 42 USC 12101 et seq. , Mitchell v Lublin, McGaughy & Assoc, 358 US 207, 211; 79 S Ct 26 0; 3 L Ed 2d 243 (1959); the Civil Rights Act, 42 USC 1983, Gomez v Toledo , 446 US 635, 639; 100 S Ct 1920; 64 L Ed 2d 572 (1980 ); the Americans with Di sabilities Act, 42 USC 12101 et seq ., PGA Tour, Inc v Martin, 532 US 661, 6 76; 121 S Ct 1879; 149 L Ed 2d 904 (2003); antitrust laws, Jefferson Co Pharmacuti cal Ass’n, Inc v Abbott Laboratories, 460 US 150, 159; 103 S Ct 1011; 74 L Ed 2d 882 (1 983); and the federal Employers’ Liability Act, 45 USC 51 et seq ., Atchison T & S F R Co v Buell , 480 US 557, 562; 107 S Ct 1410; 94 L Ed 2d 563 (1987).

5interpreting this statute and similar remed ial statutes, it is important to remember the “well-established rule that remedial statutes are to be liberally construed to suppress the evil and advance the remedy.” Id. at 34 (citing 3 Sands, Sutherland Statutory Construction [4th ed], § 60.01, p 55).

B. S UPPORT FOR OUR I NTERPRETATION O UTSIDE OUR J URISDICTION There is also support for ou r interpretation outside th is jurisdiction. The language used in the CRA 6 is substantially similar to the language of title III of the Americans with Disabilities Act. 7 For this reason, the caselaw int erpreting the Americans with Disabilities Act is inst ructive with regard to the correct interpretation of our statute.

6 MCL 37.2302 provides in part: Except where permitted by la w, a person shall not: (a) Deny an individual the full and equal enjoyment of the goods, services, facilities, pr ivileges, advantages, or accommodations of a place of pu blic accommodation or public service because of religion, race, colo r, national origin, age, sex, or marital status. [Emphasis added.]

7 42 USC 12182 (title III) provides: (a) General rule. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, pr ivileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

6In Menkowitz v Pottsto wn Mem Med Ctr , 8 the United States Court of Appeals for the Third Circuit decided a case involving almost identical facts. In that case, the defendant hos pital suspended the staff priv ileges of the plaintiff, a disabled orthopedic surgeon. Id. at 115. The plaintiff sued, alleging that the hospital had discriminated against hi m on the basis of his disability. Id. at 116. The district court dismissed the claim, deciding that title III protects only those seeking medical care, not the employees and other staff who serve them. Id. The Third Circuit reversed, holding that a “medical doctor with staff privileges . . . may assert a cause of action under Title III of the ADA as an ‘individual’ who is denied the ‘full and equal en joyment of the goods, serv ices, facilities, privileges, advantages, or accommodations of an y place of public accommodation.’” Id. at 122. This is the same c onclusion we have reached in interpreting our statute. Because the Third Circuit was interpret ing a similar statute under similar circumstances, the Menkowitz decision supports the conclusion that we reached the correct interpretation of our statute.
C. O UR I NTERPRETATION IS C ONSISTENT WITH M ICHIGAN L AW Our conclusion is also consistent w ith existing Michigan caselaw. The fact that, in considering a similar issue, anot her Michigan court reached an analogous result gives us confidence that our int erpretation of the statute is correct.

8 154 F3d 113 (CA 3, 1998).

7In Neal v Dep’t of Corrections, the plaintiffs were women inmates in Michigan Department of Corrections fac ilities who claimed they were victims of sexual harassment. Initially, the Court of Appeals ruled that the prisoners were not protected by the CRA because the pr ison did not furnish a service to its prisoners. Neal v Dep’t of Corrections , 230 Mich App 202, 209; 583 NW2d 249 (1998) ( Neal I ). However, on rehearing, the C ourt of Appeals ruled that the prisoners were protected becau se the CRA does not preclude its application on the basis of a person’s status as a prisoner or inmate. Neal v Dep’t of Corrections ( On Rehearing ), 232 Mich App 730, 740; 592 NW 2d 370 (1998) ( Neal II ). A special panel of the Court of Appeals affirmed the decision in Neal II in its opinion in Doe v Dep’t of Corrections , 240 Mich App 199; 611 NW 2d 1 (2000). The special panel conceded that it was possible that the Legislature did not intend the CRA to apply to prisoners. But, it stated, it did not have the liberty to change the meaning of statutory language. Id. at 201. Neal arose in a different context. Howe ver, the argument advanced by the defendants in that case is the same one advanced by de fendants here, that there is an inferred exclusion from the protection of the CRA. Neal I , 230 Mich App at
206. In Neal , the defendants claimed th at penal institutions sh ould be divided into a public side, where discrimination is prohibited, and a nonpublic side, where inmates are not protected. Id. In this case, acco rding to defendants, discrimination is not allowed when hospitals are pr oviding services to the public. But, they reason, as regards relationshi ps with the hospitals’ physicians, the CRA

8does not prohibit discrimination. We reject this argument here just as the Court of Appeals did in Neal. The statute simply does not preclude its application on the basis of a person’s status.
D. L EGISLATIVE A CQUIESCENCE Aside from the similarity of the argum ents advanced, the Court of Appeals decision in Doe is persuasive for another reason. After the special panel’s decision, the Legislature amended the CR A specifically to exclude prisoners. When it did so, it had the opportunity to carv e out a broader excl usion. However, it did not remove prisons as places of pub lic service, nor did it engage in the artifice of dividing the ins titution into public and nonpu blic areas. The Legislature simply removed prisoners from the protection of the act. It has made no further exclusion of persons or cl asses of persons from the CRA, nor has it given any indication of an intent to further restrict this remedial statute. Its decision not to insert further exclusionary language is evidence that the Legislature approved the Court’s broad interpretation of this statute. See, e.g., Twork v Munising Paper Co , 275 Mich 174, 178; 266 NW 311 (1936); Gordon Sel-Way, Inc v Spence Bros Inc , 438 Mich 488, 505; 475 NW2d 704 (1991).
C ONCLUSION The language of the CRA clearly supports the decision in this case. I write separately to stress that the language is not the only consid eration that courts should weigh in interpreting a statute. “[T]he purpose of construction is the ascertainment of meaning; nothing that is logically relevant shou ld be excluded.”

9Stephen Breyer Active Liberty (New York: Knopf, 2005 ), p 18, quoting Learned Hand, The Spirit of Liberty (New York: Knopf, 1960) , p 109. Interpreting a statute involves a search for intent, and courts should be free to use all available interpretative tools in undertaking it. H ere, each of the factors I have discussed is relevant to that search.
Marilyn Kelly Michael F. Cavanagh

10v S T A T E O F M I C H I G A N
SUPREME COURT

GREGORY HAYNES, Plaintiff-Appellant,
No. 129206 MICHAEL J. NESHEWAT, ROBERT J. MURRAY, and BRIAN PELTZ, Defendants, and OAKWOOD HEALTHCARE, INC., and OAKWOOD HOSPITAL-SEAWAY CENTER, Defendants-Appellees.

MARKMAN, J. ( concurring ). Having reached the prop er result in this case through a proper legal analysis, Justice Kelly in a concurrence to her own majority opinion proceeds to demonstrate that she could have reached the same result through less disciplined mean s. Not content to rely, as she does in her majority opinion, on the actual language of the la w, Justice Kelly invokes an array of alternative techniques to “int erpret” the law in her concu rring opinion. She relies upon a “liberal constructi on” of the statute in question; she relies upon characterizations of the statute as “b road” and “remedial”; she relies upon a summary description of the law as “am biguous,” therefore apparently affording her the discretion to pick and choose the law she prefers; she relies upon theLegislature’s inaction in the wake of an earlier court decision, equating this to approval of the Court’s decision; she disp arages the value of dictionaries as an essential tool in the interpretative process; and she relies upon an extraordinarily broad understanding of “legislative history.” Fo r the sake of future reference, a further catalogue of language-avoidance “interpretative” techni ques would include the following: divining the “spirit of a statute”; relying upon considerations of “public policy”; standardlessly applying “equity”; characterizing statutes with which a judge disagrees as “absurd”; and concocting creative “balancing” and “totality of circumstances” tests. Innova tively applied, each of these techniques can be relied upon to avoid the hard task of having to discern a statute's meaning from its actual language.

Stephen J. Markman Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr.

2