Jane DOE and Joan Roe, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
Court of Appeals of Michigan.
Before RICHARD ALLEN GRIFFIN, P.J., and McDONALD and WHITE, JJ.
*697 ORDER
Doe v. Dep't of Corrections, Docket No. 200810. The Court orders that a special panel shall be convened pursuant to MCR 7.215(H) to resolve the conflict between this case and Neal v. Dep't of Corrections (On Rehearing),
The Court further orders that the opinion in this case released June 25, 1999, is hereby vacated.
The appellant may file a supplemental brief within 28 days of the Clerk's certification of this order. Appellant may file a supplemental brief within 21 days of service of appellant's brief. Nine copies must bе filed with the Clerk of the Court.
RICHARD ALLEN GRIFFIN, P.J.
This is a class action brought by current or former prisoners under the jurisdiction of defendant, Michigan Department of Corrections (MDOC), on behalf of all prisoners who, pursuant to MDOC policy, were denied placement in community residential programs (CRP), camps, and farms on the basis of their HIV-positive status. Plaintiffs alleged that MDOC's policy directive, PD-DWA-42.08,[1] governing the "control of communicable blood-borne diseases (AIDS, Hepatitis B)," violated their constitutional due process and equal protection rights,[2] Const. 1963, art. 1, §§ 2, 17, violated the constitutional prohibition аgainst cruel or unusual punishment, Const. 1963, art. 1, § 16, and violated the Michigan Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; MSA 3.550(101) et seq. Before trial, the court granted summary disposition in favor of defendant regarding all claims except that alleging violation of plaintiffs' equal protection rights under the Michigan Constitution, Const. 1963, art. 1, § 16. The trial court also denied plaintiffs' motion to amend their complaint to add claims under the Rehabilitation Act, 29 U.S.C. 701 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. Following a bench trial, the court ruled that plaintiffs had failed to sustain their burden of proof with respect to their equal protection claim and entered judgment in favor of defendant. Plaintiffs appeal as of right from the trial court's order granting summary disposition regarding their HCRA claim, the order denying their motion to amend the complaint, and the judgment for defendant pertaining to the alleged violation of equal protection rights.[3]*698 Were we permitted, we would affirm in part and reverse in part for the reasons set forth in the majority opinion in Neal v. Dep't of Corrections,
I
Plaintiffs first contend that the trial court erred in ruling that they failed to state a claim for relief under the HRCA. The trial court's ruling on a motion for summary disposition is reviewed de novo. Pinckney Community Schools v. Continental Casualty Co.,
The HCRA provides in part as follows:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantаges, and accommodations of a place of public accommodation or public service because of a handicap that is unrelated to the individual's ability to utilize and benefit from the goods, services, facilities, privileges, advantages, or accommodations or because of the use by an individual of adaptive devices or aids. [MCL 37.1302(a); MSA 3.550(302)(a).]
A "public service" is defined as "a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of this state or a subdivision of this state, a county, city, village, township, or independent or regional district in this state, or a tax exempt private agency established to provide service to the public." MCL 37.1301(b); MSA 3.550(301)(b).
Section 303 of the HCRA creates an exemption for private establishments. It provides:
This article shall not apply to a private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages, or accommodations of the private club or establishment are made available to the customers or patrons of another establishment that is a place of public accommodation, or if it is licensed, chartered, or certified by the state or any of its political subdivisions. [MCL 37.1303; MSA 3.550(303).]
The question raised by plaintiffs regarding the applicability of the HCRA to prisons and inmates presents an issue of first impression in this state. However, in the recently released decision in Neal II, supra, this Court applied the Michigan Civil Rights Act, M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq., to prisoners housed in MDOC facilities. Although we disagree with the rationale and result of Neal II, we conclude that the circumstances in Neal II *699 parallel the circumstances in the present case to such an extent that the holding in Neal II dictates the resolution of the present issue.
Subsection a of § 302 of the Civil Rights Act provides:
Except where permitted by law, a person shall not:
(а) Deny an individual the full and equal employment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status. [MCL 37.2302(a); MSA 3.548(302)(a).]
The Civil Rights Act's definition of a "public service" is similar to that of the HCRA; it defines the term as "a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state, a political subdivision, or an agency thereof, or a tax exempt private agency established to provide public service." MCL 37.2301(b); MSA 3.548(301)(b). Finally, the Civil Rights Act provides an exemption for private clubs nearly identical to that set forth in the HCRA. It provides:
This article shall not apply to a private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages, or accommodations of the private club or establishment are made available to the customers or patrons of another establishment that is a place of public accommodation or is licensed by the state.... [MCL 37.2303; MSA 3.548(303).]
In Neal I, supra, the parties posited nearly the same arguments raised here. The plaintiff prisoners
argue[d] that MDOC correctional facilities are places of "public service" under § 301 and subsection 302(a), and thus that discrimination against inmates, based on sex, is prohibited in such facilities. Defendants assert[ed] that if the MDOC is a "public service," its prisons are not required to comply with subsection 302(a) because they fall within the § 303 exemption for "private club[s], or other establishment[s] not in fact open to the public...."[Id. at 209,583 N.W.2d 249 .]
The Neal I majority concluded that it could "perceive no legislative intent to extend the dictates of the Civil Rights Act to prisoners" and thus "reject[ed] a reading of the act that would include prisons within its ambit in their dealings with prisoners." Id. at 209-210,
It is important to remember that subsection 301(b) does not stipulate which buildings or agencies are included within the scope of the act, nor does it define the individuals that are or are not covered by the аct. It defines the term" public service." The key phrase in this subsection is: "established to provide service to the public." The concurring opinion concludes that because the MDOC is a state "department" or "agency," then the Civil Rights Act must apply to any facilities that it operates; this interpretation is an oversimplification of the definition. No reasonable reading of the statute would conclude that "public service" merely means a department or agency. If the concurring opinion is correct, there would be no need to use or define the tеrm "public service," because "government" would subsume the entire spectrum....
The definition of "public service" in subsection 301(b) reads, in pertinent part: "`Public service' means a ... department [or] agency ... owned, operated, or managed by or on behalf of the state ... established to provide service to the public." Prisons are not established to provide service to the public (at least not to a public that includes prisoners). Indeed, they are designed *700 to do just the oppositeto keep incarcerated individuals from the public. A prison is not like a court, a hospital, or the office of the Secretary of the State, all of which were established to provide, and do provide, "service to the public."
It could be argued that prisons serve the public by confining individuals who commit felonies. However, this, in our opinion, is not the equivalent of "established to provide service to the public." If the concurring opinion is correct, then every act done by prison officials could subject those officials and the MDOC to a discrimination lawsuit.... We do not believe that this was the intended result of the Civil Rights Act. Prisoners simply arе not protected against discrimination by the act (which is by no means to say that they are entirely unprotected; whatever restraints exist, however, are found outside the four corners of the act).
We conclude that in order for an agency or department to fall within the scope of the Civil Rights Act, it must be "established to provide service to the public." While prisons may perform a public service by confining those who have been convicted of serious crimes, they are not established as a "place of public accommodation" or as аn agency that provides "service to the public." Given our conclusion, we reject any interpretation of the Civil Rights Act that would bring prisons within its scope and subject prison personnel to discrimination lawsuits brought by prisoners pursuant to the act. [ Id. at 213-215,583 N.W.2d 249 (emphasis added).]
This Court subsequently granted rehearing in Neal I to consider the effect, if any, of Pennsylvania Dep't of Corrections v. Yeskey,
The Supreme Court's reasoning in Yeskey applies equally to this case. Under subsection 301(b), a "public service" includes "a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state...." The MDOC is a state agency, and this state's correctional facilities are operated by it. Any "exception that could cast the coverage of prison into doubt," 118 S.Ct. [at] 1954, is conspicuously absent from the unambiguous statutory language of the Civil Rights Act. Thus, under the plain language of subseсtion 301(b), the MDOC clearly falls within the broad statutory definition of a "public service."
Although this Court has said that the similarities in purpose and some definitions make it "appropriate to look at the Rehabilitation Act and the ADA for guidance in interpreting" the HCRA, Stevens v. Inland Waters, Inc.,
In contrast to the ADA, the Civil Rights Act (CRA), M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq., defines "public service" so as to include only entities that "provide serviсe to the public." MCL 37.2301(b); MSA 3.548(301)(b). State prisoners, by definition, are not part of the general public to whom any otherwise public service proffered by the Michigan Department of Corrections can be provided. This limitation of the definition of "public service" is conspicuously absent from the definition of"public entity" found in the ADA, which has no corresponding language of limitation. The MDOC is subject to the CRA, as we held in the original opinion, to the extent that it opens the doors of any place of confinement under its jurisdiction to visitors, employees, officials, or other persons voluntarily seeking admittance. 230 Mich.App. [at] 209 [583 N.W.2d 249 ]. Indeed, with respect to employees of the Department of Corrections, the CRA applies by virtue of article 2, which extends the CRA's prohibition of the statutorily enumerated forms of discrimination to the employment relationship, McCallum v. Dep't of Corrections,197 Mich.App. 589 ,496 N.W.2d 361 (1992), rather than article 3, which covers places of public accommodation and public services. The majority's current expansion of the CRA's reach conflates all these crucial distinctions. I am unable to subscribe to the notion that the decision in Yeskey, which involved a different stаtute, significantly different statutory language, different facts, and different jurisprudential principles of statutory construction, somehow controls the present case or even usefully informs our analysis and decision.
We find Judge O'Connell's reasoning to be persuasive and equally applicable to the present circumstances. Nonetheless, we are constrained by MCR 7.215(H) to follow the majority opinion in Neal II. Both the HCRA and the Civil Rights Act have similar purposes, i.e., the prevention of discrimination in employment, housing, and other real estate and to ensure full and equal utilization of рublic accommodations, public services, and educational facilities, M.C.L. § 37.1102(1); MSA 3.550(102)(1), M.C.L. § 37.2102(1); MSA 3.548(102)(1), and both acts define a public service in almost identical terms, that being essentially some "agency established to provide service to the public." MCL 37.1301(b); MSA 3.550(301)(b), M.C.L. § 37.2301(b); MSA 3.548(301)(b). Because prison inmates are protected by the Civil Rights Act under Neal II, it necessarily follows that prison inmates are also protected by the HCRA. We apply the holding of Neal II only because we are required to do so pursuant to MCR 7.215(H). Under Neal II, we reluctantly rule that the trial court erred in finding that plaintiffs had failed to state a claim for reliеf under the HCRA. Were we allowed, we would follow the better-reasoned approach of Neal I and Judge O'Connell's dissent in Neal II and affirm the holding of the trial court regarding this issue.
II
Plaintiffs next contend that the trial court abused its discretion in denying their motion for leave to amend their complaint to add claims under the Rehabilitation Act and the ADA. We agree.
A motion to amend pleadings is a matter "within the sound discretion of the trial court and reversal is only appropriate when the trial court abuses that discretion." Weymers v. Khera,
The trial court ruled that the proposed amendment would have prejudiced defendants because it was sought on the eve of mediation, which had been scheduled with great difficulty before a special panel, and because plaintiffs had been aware of potential claims under the federal antidiscrimination acts for some time. However,"[d]elay without more, such as undue prejudice, does nоt mandate the denial of a motion to amend." Traver Lakes Community Maintenance Ass'n v. Douglas Co.,
The trial court also ruled that the proposed amendment would have been futile because neither the ADA nоr the Rehabilitation Act applied to prisons and claims by prison inmates. At the time the trial court ruled on plaintiffs' motion to amend, the state of the law regarding the applicability of these acts to prisons and prison inmates was unsettled. Subsequently, however, the United States Supreme Court rendered its opinion in Yeskey, supra, holding that the plain language of the ADA unambiguously and "unmistakably includes State prisons and prisoners within its coverage," and finding that the text of the act provided no basis for distinguishing the programs, services, and activities provided by prisons to their inmates from those providеd by other public utilities. Because the Rehabilitation Act "is materially identical to and the model for the ADA, ... except that it is limited to programs that receive federal financial assistance," Crawford v. Indiana Dep't of Corrections,
III Finally, plaintiffs contend that the trial court erred in finding that they had failed to sustain their burden of proof with regard to their equal protection claim at trial. This Court reviews the trial court's findings of fact in a bench trial for clear error. Featherston v. Steinhoff, 226 Mich.App. 584 , 587, 575 N.W.2d 6 (1997). A finding is clearly erroneous when, although evidence supports it, this Court is left with a firm conviction that the trial court made a mistake. Id. The trial court's conclusions of law аre reviewed de novo for error. Omnicom of Michigan v. Giannetti Investment Co., 221 Mich.App. 341 , 348, 561 N.W.2d 138 (1997). "A new trial is appropriate when an error of law has occurred in the proceedings." Schellenberg v. Rochester, Michigan, Elks Lodge No. 2225, 228 Mich.App. 20 , 31, 577 N.W.2d 163 (1998).
The trial court's initial finding regarding the length of time that the MDOC utilized a blanket prohibition policy is supported by the evidence and is not clearly erroneous. Lumley v. Univ. of Michigan Bd. of Regents,
We further conclude that the trial court's application of the rational basis test, People v. Pitts,
Rather, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley,
Because the trial court in the instant case applied the wrong legal analysis to plaintiffs' equal protection claim and in so doing failed to consider the necessary factors for determining the constitutional validity of prison policy, we reverse the judgment of the trial court and remand for reconsideration of plaintiffs' constitutional claim under the test set forth in Turner, supra.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
McDONALD, J., concurs.
WHITE, J. (concurring).
The majority agrees with the reasoning of the Neal I[1] majority and of the dissenting judge in Neal II[2] that prisoners fall outside the coverage of the Civil Rights Act (CRA), M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq., because prisons are not "established to provide public service," and concludes that prisoners also fall outside the coverage of the Persons with Disabilities Civil Rights Act (PWDCRA), M.C.L. § 37.1101 et seq.; MSA 3.550(101) et seq., formerly the Handicappers' Civil Rights Act (HCRA),[3] which defines "public service" similarly. I disagree.
The PWDCRA defines "public service" as:
*704 "Public service" means a public facility, department, agency, bоard, or commission, owned, operated, or managed by or on behalf of this state or a subdivision of this state, a county, city, village, township, or independent or regional district in this state, or a tax exempt private agency established to provide service to the public. [MCL 37.1301(b); MSA 3.550(301)(b) (emphasis added).]
The CRA defines "public service" as:
"Public service" means a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state, a political subdivision, or an agency thereof, or a tax exempt private agency established to provide service to the public. [MCL 37.2301(b); MSA 3.548(301)(b) (emphasis added).]
Neither the plain language of the CRA or the PWDCRA nor the result reached upon application of rules of statutory interpretation to the definitions of "public service" support the result reached in Neal I.
The CRA and the PWDCRA, being remedial in nature, are to be construed liberally. Chmielewski v. Xermac, Inc.,
Analysis of PWDCRA claims is largely parallel to analysis under the ADA; the statutes have similar purposes and definitions. Chmielewski, supra at 602,
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. [42 U.S.C. 12132 (emphasis added).]
Subsection 1 of § 12131 of the ADA, 42 U.S.C. 12131(1), defines "public entity" as
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of a State or States or lоcal government;
*705 (C) the National Railroad Passenger Corporation, and any commuter authority....
When the PWDCRA provision defining "public service" is interpreted as discussed above, it becomes analogous in its coverage to the ADA provision defining "public entity." While the majority notes its agreement with the Neal I Court's determination that "[n]o reasonable reading of the statute [CRA] would conclude that `public service' merely means a department or agency," ante, p. 699, the ADA operates precisely in that fashion, and the PWDCRA is the Michigan analog of the ADA.
The analysis of a unanimous United States Supreme Court in Yeskey, supra, provides guidance in interpretation of the PWDCRA as well:
Here, the ADA plainly cоvers state institutions without any exception that could cast the coverage of prisons into doubt. Title II of the ADA provides that:
"Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
State prisons fall squarely within the statutory definition of "public entity," which includes "any department, agency, special purpose district, or other instrumentality of a State or Statеs or local government." § 12131(1)(B).
Petitioners contend that the phrase "benefits of the services, programs, or activities of a public entity," § 12132, creates an ambiguity because state prisons do not provide prisoners with "benefits" of "programs, services, or activities" as those terms are ordinarily understood. We disagree. Modern prisons provide inmates with many recreational "activities," medical "services," and educational and vocational "programs," all of which at least theoretically" "benefit" the prisoners (and any of which disabled prisoners сould be "excluded from participation in").... The text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons.
...
Finally, petitioners point out that the statute's statement of findings and purpose, 42 U.S.C. § 12101, does not mention prisons and prisoners.... [A]ssuming [that] to be true, and assuming further that it proves, as petitioners contend, that Congress did not "envisio[n] that the ADA would be applied to state prisoners," Brief for Petitioners 13-14, in the context of an unambiguous statutory text that is irrelevant. As we have said before, the fact that a stаtute can be "`applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.'" Sedima, S.P.R.L. v. Imrex Co.,473 U.S. 479 , 499,105 S.Ct. 3275 ,87 L.Ed.2d 346 (1985) (citation omitted). [118 S.Ct. at 1954-1956 ,141 L.Ed.2d at 219-220 (emphasis added).]
Additionally, I conclude that the Neal II majority correctly determined that prisons are not exempt under the exemption for private establishments found in § 30.
I agree with the majority's disposition of the remaining issues.
NOTES
[1] PD-DWA-42.08 provided in pertinent part that "[p]risoners with present or past HIV related illness shall not be placed in a community residential program, nor shall they be medically cleared for camps or farms." The blanket prohibition in the directive was revised in June 1990 by DOM 1990-16, which allowеd those HIV prisoners who were medically eligible to participate in CRPs if physically able and the projected costs of their care in the community would not greatly exceed the cost of comparable care in MDOC facilities.
[2] Plaintiffs alleged that the 1989 version of PD-DWA-42.08 violated their constitutional rights because it excluded them from participation in CRPs, camps, or farms, for which they were otherwise eligible, based on their HIV-positive status. Although not specified in their complaint, plaintiffs also asserted that the revised version was unlawfully discriminatory because it subjected HIV-positive prisoners to more stringent requirements for CRP placement than other prisoners.
[3] In a prior appeal in this case, Doe v. Dep't of Corrections, unpublished opinion per curiam of the Court of Appeals, issued June 15, 1994 (Docket No. 147293), this Court addressed three issues not presently before the Court, holding in pertinent part:
The trial court erred in granting summary disposition pursuant to MCR 2.116(C)(4) on the ground that jurisdiction over plaintiffs' claims for money damages was in the Court of Claims. While it is generally true that the Court of Claims has exclusive jurisdiction over claims for money damages against the state, that exclusivity does not extend to civil rights claims such as those asserted under the HCRA.... Defendant so concedes. Hence, we reverse the trial court's order granting partial summary disposition to defendant under MCR 2.116(C)(4).
Next, the trial court erred in granting summary disposition as to plaintiffs' claim for injunctive relief on the basis that defendant's amendment of PD-DWA-42.08 rendered this claim moot. In response to defendant's motion, plaintiffs argued that despite the new policy, HIV positive inmates otherwise qualified for placement were not being placed in community facilities. Moreover, the policy as amended continued to deny placement to some HIV positive prisoners based on their CD-4 counts alone. The affidavit submitted in support of defendant's motion contained numerous factual/medical assertions in support of this policy. Plaintiffs' should have been given the opportunity to explore and refute these assertions.
Lastly, the trial court did not clearly err in certifying the class....
[4] To the extent that Turner applies to a prisoner's right to the free exercise of religion, it has been superseded by the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-2000bb-4. See Fawaad v. Jones,
Notes
[1] Neal v. Dep't of Corrections,
[2] Neal v. Dep't of Corrections (On Rehearing),
[3]
[4] Defendants' appellate brief urges that we look not to the PWDCRA's plain language, but to the spirit and purpose of the act: