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### STATE OF MICHIGAN

COURT OF APPEALS

BETTINA WINKLER, by her next friends HELGA DAHM WINKLER and MARVIN WINKLER,

Plaintiff-Appellee, UNPUBLISHED November 12, 2015

v No. 323511 Oakland Circuit Court MARIST FATHERS OF DETROIT, INC., d/b/a NOTRE DAME PREPARATORY HIGH SCHOOL AND MARIST ACADEMY, LC No. 2014-141112-CZ

Defendant-Appellant.

Before: S AWYER , P.J., and K. F. K ELLY and F ORT H OOD , JJ.

P ER C URIAM

. Defendant appeals by leave granted 1 from the trial court’s order denying its motion for summary disposition pursuant to MCR 2.116(C)(4) (lack of subjec t-matter jurisdiction) and MCR 2.116(C)(10) (no genuine issue of material fact). For the reasons set forth below, we reverse and remand for the ent ry of an order granting summary d isposition in defendant’s favor.

Notre Dame Marist Academy (Marist) is a private, Catholic midd le school in Pontiac, Michigan. Notre Dame Preparatory School (Notre Dame) is a priv ate, Catholic high school in Pontiac, Michigan. Together, Marist and Notre Dame constitute the defendant in this case, Marist Fathers of Detroit, Inc, d/b/a Notre Dame Preparatory Hi gh School and Marist Academy. Plaintiff, Bettina Winkler, enrolled in Marist as both a sevent h-grade and eighth-grade student. According to plaintiff’s complaint, she was “assured on numerou s occasions that if she enrolled at Marist for 7th a nd 8th grade, she would be guaranteed placem ent in Notre Dame Prep for High School 9th grade.” However, plaintiff was not granted admissio n to Notre Dame. Approximately two months after being denied admission to Notre Dame, plaintiff was diagnosed with certain learning disabilities . Thereafter, this lawsuit w as filed, alleging in pertinent part discrimination under the Persons W ith Disabilities Civil Rights Act (PWDCRA), MCL 37.1401

1 Bettina Winkler v Marist Fathers of Detroit, Inc , unpublished order of the Court of Appeals, entered December 18, 2014 (Docket No. 323511).-2- et seq . Plaintiff alleged that despite being “long aware that [she] had a learning disability,” defendant denied her admission to Notre Dame and “consistently relied upon her learning disability . . . as a justif ication” for doing so.

Defendant filed a motion for summary disposition. Defendant a rgued that summary disposition pursuant to MCR 2.116(C)(4) was appropriate because , pursuant to Dlaikan v Roodeen , 206 Mich App 591, 593; 522 NW2d 719 (1994), civil courts do n ot have jurisdiction over a religious school’s admission or denial of admission unde r the First Amendment to the United States Constitution. Defendant also argued that summary disposition pursuant to MCR 2.116(C)(10) was appropriate because, as a matter of law, plain tiff could not prove disability discrimination under the PWDCRA. Plaintiff responded that the trial court had subject-matter jurisdiction over her claim pursuant to PWDCRA and that Dlaikan was distinguishable. Plaintiff further asserted that she was denied admission to Notre Dame so lely because of he r disability.

The trial court denied defendant’s motion pursuant to MCR 2.11 6(C)(4). The trial court held that plaintiff’s disability claim could be distinguished f rom the Dlaikan case, concluding that it had subject-matter jurisdiction to consider the claim u nder the PWDCRA. The trial court deferred reaching a decision regarding defendant’s motion for s ummary disposition pursuant to MCR 2.116(C)(10), concluding that doing so would be premature. Defendant filed an interlocutory appeal, which this Court granted. Michigan Prote ction & Advocacy Service, Inc. moved for leave to file an amicus curiae brief before this Cour t, and this Court granted that motion. 2

Defendant argues that the civil courts lacks subject-matter ju risdiction over this claim pursuant to the protections of the First Amendment. We agree.

This Court reviews de novo a trial court’s decision on a motio n for summary disposition. Williams v Enjoi Transp Solutions , 307 Mich App 182, 185; 858 NW 2d 530 (2014). Summary disposition is appropriate pursu ant to MCR 2.116(C)(4) when the trial court “lacks jurisdiction of the subject matter.” MCR 2.116(C)(4); Packowski v United Food & Commercial Workers Local 951 , 289 Mich App 132, 138; 796 NW2d 94 (2010). “This Court also reviews constitutional issues de novo on appeal.” Weishuhn v Catholic Diocese of Lansing , 279 Mich App 150, 155; 756 NW2d 483 (2008).

“It is well settled that courts, both federal and state, are s everely circumscribed by the First and Fourteenth Amendments to the United States Constituti on and art 1, § 4 of the Michigan Constitution of 1963 in resolution of disputes between a church and its members.” Maciejewski v Breitenbeck , 162 Mich App 410, 413-414; 413 NW2d 65 (1987). “[C]ivil cour ts have the general authority to reso lve church property disputes. ” Lamont Community Church v Lamont Christian Reformed Church , 285 Mich App 602, 615; 777 NW2d 15 (2009). While “civil courts have jurisdiction t o determine property rights in volving ecclesiastical

2 Bettina Winkler v Marist Fathers of Detroit, Inc , unpublished order of the Court of Appeals, entered June 25, 2015 (Docket No. 323511).-3- organizations,” “jurisdiction is limited to property rights tha t can be resolved by application of civil law.” Dlaikan , 206 Mich App at 593. That is, under the First Amendment, cir cuit courts are prohibited from resolving c hurch property disputes on the b asis of religious doctrine and ecclesiastical polity. Lamont Community Church , 285 Mich App at 615. “Whenever the court must stray into questions of religious doctrine or ecclesiastic al polity the court loses jurisdiction. Religious doctrine refers to ritual, liturgy of worship and ten ants of the faith. Polity refers to organization and form of government of the church.” Pilgrim’s Rest Baptist Church v Pearson
, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket Nos. 318797, 319571); slip op at 4 (citations omitted), quoting Maciejewski, 162 Mich App at 414. This limitation on civil court jurisdiction is referred to as th e ecclesiastical abstention do ctrine.

In Dlaikan , three families sued a parochial school and its representative s after their children were denied admission to the school. Dlaikan , 206 Mich App at 592. The school and its representatives moved for summary disposition pursuant to M CR 2.116(C)(4), the trial court denied their motion, and this Court reversed. Id . at 593-594. The Dlaikan Court held that review of the defendant school’s admission decision fell outsid e the jurisdiction of civil courts, explaining:

When the claim involves the provision of the very services (or as here refusal to provide these services) for which the organization e njoys First Amendment protection, then any claimed contract for such servic es likely involves its ecclesiastical polic ies, outside the purview of ci vil law. In this regard there can be no distinction betw een a church providing a liturg ical service in its sanctuary and providing educatio n imbued with its religious doc trine in its parochial school. A civil court should avoid foray into a “pro perty dispute” regarding admission to a church’s religious or educational acti vities, the essence of its constitutionality protected function. To do so is to se t foot on the proverbial slippery slope toward entanglement in matters of doctrine or ec clesiastical polity. [ Id . at 593 (citation omitted).]

The Dlaikan Court stated that in determini ng whether a dispute is based on religious doctrine and ecclesiastical polity, “[r]eference to the form of the claim ma y oversimplify the issue.” Id

. Instead, courts “must look to the substance and effect of [the] complaint, not its emblemata.” Id

. (citation and internal quotation marks omitted). The Court exp lained that some activity by an ecclesiastical organization ma y be governed by civil law alone, such as entering into a contract to buy or sell property or interact s ome other way with the secula r world. Id . at 593-594. However, the plaintiff’s claims regarding admission to the school were “ so entangled in questions of religious doctrine or ecclesiastical policy that the civil cour ts lack jurisdiction to hear them.” Id

. at 594.

We hold that Dlaikan controls in the present case. Here, as in Dlaikan , plaintiff is suing a parochial school after she was denied admission. Thus, “the cl aim,” whether it is premised on a breach of contract as in Dlaikan or disability discrimination as is the case here, “involves th e provision of the very services (or as here refusal to provide t hese services) for which the organization enjoys First Amendment protection[.]” Id. at 593. Pursuant to Dlaikan , “[a] civil court should avoid foray into a ‘property dispute’ regarding admission to a church’s religious or-4- education activities [.]” Id . (emphasis added; citation omitted). Thus, the trial court er red in denying defendant summary dis position pursuant to MCR 2.116(C)( 4).

Plaintiff, amicus, and the trial court take the position that this case is distinguishable from Dlaikan because plaintiff’s claim invol ves disability discrimination. Further, plaintiff asserts that there was no religious just ification for plaintiff’s rejec tion. However, both arguments would require the courts to delve into the decision-making process of defendant, a religious institution. As Dlaikan explained, the factual basis for the denial is not an appropri ate consideration by civil courts. The crux of plaintiff’s complaint is that she was deni ed admission to defendant’s school. Thus, the claim at issue in thi s case “involves the provision o f the very services . . . for which the organization enjoys First Amendment protection[.]” Id. at 593. The “emblemata” of the claim, whether it be breach of contract or discrimination, is irreleva nt. Id . (citation omitted). Pursuant
to Dlaikan , any further inquiry by civil courts into the basis for that d enial invades constitutional protections provided to defendant as a religious institution.

This point is further illustrated by plain tiff’s argument that Dlaikan “provided scant detail about the facts leading to the claim.” Plaintiff is correct. The majority opinion in Dlaikan only stated that “the pleadings demonstrate[d] that plaintiffs’ clai ms [were] so entangled in questions of religious doctrine or ecclesiastical policy that civil court s lack[ed] jurisdiction to hear them.” Id . at 594. The dissent provided slightly more details, explaini ng that the students were denied admission to the school based on disputes involving the “teache rs’ lesson plans, allegations of improperly calculated grades, vi olation of the h air-length prov ision of the student dress code, and plaintiffs’ complaints about the ‘people skills’ of” one of the school’s representatives. Id. at 595 (T AYLOR , J., dissenting). The dissent stated that the complaint did not refer to religious doctrine as a basis for denial of admission. Id . Contrary to plaintiff’s asse rtions, we conclude that the majority’s refusal to consider the factual basis for the plaint iff’s denial illustrates the majority’s conclusion—that civil courts h ave no place analyzing the decisi on-making process of a religious institution regarding admission. It is inappropriate for this Court to delve into the factual basis for the denial, as the First Amen dment protections are triggere d prior to that inquiry.

Amicus also asserts that Dlaikan was wrongly decided and does not conform to precedent related to the ecclesiastical abs tention doctrine and related c onstitutional protections afforded to religious institutions. However, this Court is bound by its de cision in Dlaikan . MCR 7.215(J)(1). Thus, we re ject this argument.

Defendant next argues that summary disposition was proper purs uant to MCR 2.116(C)(4) because the PWDCRA does not apply to religious inst itutions. Defendant further argues that, even assuming the PWDCRA does apply to religious i nstitutions, defendant is entitled to summary disposition pursuant to MCR 2.116(C)(10) be cause plaintiff cannot show that she was discriminated again st. Based on our disposition o n defendant’s first issue, we decline to address these remaining issues. Amicus asserts that this Court is obligated to address-5- possible dispositive statutory issues before deciding constitut ional issues. 3 However, assuming without deciding that the PWDCRA applies to religious instituti ons, we would still conclude that Dlaikan applies and controls in this matter. Thus, it is unnecessary to engage in further analysis. Moreover, we note that several of the issues raised on appeal, including whether defendant was entitled to summary disposition pursuant to MCR 2.116(C)(10), w ere not decided by the trial court. Appellate review is limited to issues actually decided by the trial court. Heydon v MediaOne , 275 Mich App 267, 278; 739 NW2d 373 (2007).

In conclusion, we deter mine that the holding in Dlaikan applies, and that the trial court does not have subject-matter jurisdiction to review plaintiff’s claim based on constitutional protections afforded by the First Amendment. This Court is bou nd by Dlaikan . Thus, we reverse and remand with instructions that the trial court enter an order granting defendant summary disposition in this matter.

Reversed and remanded. We do not retain jurisdiction. Defend ant, the prevailing party, may tax costs. MCR 7.219.

/s/ David H. Sawyer /s/ Kirsten Frank Kelly /s/ Karen M. Fort Hood

3 Courts “ought not pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Spector Motor Serv v McLaughlin , 323 US 101, 105; 65 S Ct 152; 89 L Ed 101 (1944).