Neal v. Department of Corrections

Mackenzie, J. This is a class-action suit brought, in relevant part, under the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., by female prisoners housed in facilities operated by the Michigan Department of Corrections (mdoc). Defendants are the department, its director, and several wardens, deputy wardens, and corrections officers employed by the — 733 — MDOC. Defendants appeal by leave granted from a circuit court order denying their motion for summary disposition pursuant to MCR 2.116(C)(4), (7), and (8). We affirm. The case arises out of allegations that male corrections personnel have systematically engaged in a pattern of sexual harassment of female inmates incarcerated by the mdoc. Specifically, plaintiffs’ complaint alleged that the mdoc assigns male officers to the housing units at all women’s facilities without providing any training related to cross-gender supervision; that women are forced to dress, undress, and perform basic hygiene and body functions in the open with male officers observing; that defendants allow male officers to observe during gynecological and other intimate medical care; that defendants require male officers to perform body searches of women prisoners that include pat-downs of their breasts and genital areas; that women prisoners are routinely subjected to offensive sex-based sexual harassment, offensive touching, and requests for sexual acts by male officers; and that there is a pattern of male officers requesting sexual acts from women prisoners as a condition of retaining good-time credits, work details, and educational and rehabilitative program opportunities. The complaint also alleged that the inmates were subject to retaliation for reporting this gender-based misconduct. Plaintiffs claimed that these actions, and defendants’ failure to protect female inmates from this misconduct through adequate training, supervision, investigation, or discipline of mdoc employees, constitute gender-based discriminatory conduct, sexual harassment, and retaliation in violation of the Civil Rights Act. They sought injunctive and declara — 734 — tory relief, their initial claim for monetary damages having been ordered dismissed. i The purpose of the Civil Rights Act is to prevent discrimination directed against a person because of that person’s membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Noecker v Dep’t of Corrections, 203 Mich App 43, 46; 512 NW2d 44 (1993). The act is remedial and must be liberally construed to effectuate its ends. Reed v Michigan Metro Girl Scout Council, 201 Mich App 10, 15; 506 NW2d 231 (1993). Article 3 of the Civil Rights Act prohibits discrimination in public accommodations and public services. Subsection 302(a) states: Except where permitted by law, a person shall not: (a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status. [MCL 37.2302(a); MSA 3.548(302)(a)]. Section 103 of the act, MCL 37.2103; MSA 3.548(103), declares that sexual harassment is a form of sex discrimination. Section 301 defines “place of public accommodation” and “public service” as those terms are used in subsection 302(a). It states: (a) “Place of public accommodation” means a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, — 735 — privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public. .. . (b) “Public service” means a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state, a political division, or an agency thereof, or a tax exempt private agency established to provide service to the public. [MCL 37.2301; MSA 3.548(301)]. Finally, § 303 of the act creates an exemption under article 3 for private clubs: 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 denying defendants’ motion for summary disposition with respect to plaintiffs’ Civil Rights Act claim, the trial court ruled that the mdoc is a “public service” agency prohibited from engaging in gender-based discrimination or harassment under subsection 302(a) of the act. The court further noted that the act does not specifically exclude prisoners from its coverage and declined to read such an exclusion into the act. n The narrow issue before us is whether the mdoc correctional facilities are places of “public service” in which discrimination against inmates, based on sex, is prohibited. The United States Supreme Court’s recent decision in Pennsylvania Dep’t of Corrections v Yeskey, 524 US_; 118 S Ct 1952; 141 L Ed 2d 215 — 736 — (1998), leads us to conclude that the mdoc facilities are places of “public service” within the meaning of subsection 301(b). The question in Yeskey was whether a state prisoner could maintain a claim against a state department of corrections under another civil rights statute, the Americans with Disabilities Act of 1990 (ada), title II of which prohibits discrimination by a “public entity” against individuals with a disability. 42 USC 12132. The statutory definition of “public entity” at issue in Yeskey is similar to the definition of “public service” set forth in subsection 301(b): “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 USC 12131(1)(B). Writing for a unanimous Supreme Court, Justice Scalia held that “the statute’s language unmistakably includes State prisons and prisoners within its coverage.” 118 S Ct 1954. Emphasizing the broad statutory language, the Court stated that “the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt.” Id. The Court therefore concluded that “[s]tate prisons fall squarely within the statutory definition of ‘public entity’. ...” Id. 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 prisons into doubt,” 118 S Ct 1954, is conspicuously absent from the unambiguous statutory language of the Civil Rights Act. Thus, under the — 737 — plain language of subsection 301(b), the MDOC clearly falls within the broad statutory definition of a “public service.” Defendants essentially concede as much. Defendants argue that even if the MDOC is a “public service,” its prisons are nevertheless not required to comply with subsection 302(a) of the Civil Rights Act because they fall within the § 303 exemption for “private club[s], or other establishments] not in fact open to the public.” We reject this argument. The fact that the MDOC operates buildings that are not fully open to the public does not mean that the MDOC itself is a “private club or other establishment” not open to the public. There is a distinction between a state agency and the buildings that house that state agency. There are presumably many departments of state government (this Court included) that operate facilities that members of the public may not enter at their will. This, however, does not mean that those departments themselves are private establishments not open to the public; it merely means that the physical structures used by those departments are not fully accessible to the public. Moreover, “[rjesident inmates are obviously members of the public in a general sense.” Martin v Dep’t of Corrections, 424 Mich 553, 565; 384 NW2d 392 (1986) (Cavanagh, J., dissenting). Our Supreme Court has held that prisoners are members of the public for purposes of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq. Green v Dep’t of Corrections, 386 Mich 459, 464; 192 NW2d 491 (1971). The Supreme Court has also held that prisoners are members of the public for purposes of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Martin, supra, p 555. — 738 — Civil rights acts are to be liberally construed to provide the broadest possible remedy. Reed, supra. Only by reading “private club, or other establishment not in fact open to the public” in its most restrictive, literal sense, may a correctional facility be deemed to be “not open to the public.” We therefore conclude that the § 303 exemption does not relieve defendants of the obligation to act in conformity with subsection 302(a) of the Civil Rights Act. m Defendants contend that even if the § 303 exemption does not apply to state-run correctional facilities, subsection 302(a) of the Civil Rights Act was not intended to protect prisoners. Again, we disagree. We begin by reviewing the legislative purpose of the Civil Rights Act in general and subsection 302(a) in particular. Const 1963, art 1, § 2 states: No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. The Civil Rights Act was enacted as 1976 PA 453. Its purpose was two-fold. First, it was intended to centralize and make uniform the patchwork of then-existing civil rights statutes applying to the private sector, such as the Fair Housing Act, the Fair Employment Practices Act, and the Public Accommodations Act. See Dep’t of Civil Rights ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 187-188; 387 NW2d 821 (1986). Second, it was — 739 — intended to broaden the scope of the then-existing civil rights statutes to include governmental action: [T]he Legislature’s addition of “public service” to [subsection] 302(a), thereby including state action violations that amount to constitutional deprivation with private sector, non-state action legislative violations, can be explained by the fact that article 1, § 2 of the Michigan Constitution provides: “the legislature shall implement this section by appropriate legislation.” It is the only provision of the Declaration of Rights to provide so. [Id., p 188 (emphasis in the original).] Thus, insofar as subsection 302(a) of the Civil Rights Act governs “public service,” it is essentially a codification of the constitution’s Equal Protection and Antidiscrimination Clauses, broadened to include categories not covered under the constitution, such as age, sex, and marital status. See Dep’t of Civil Rights, pp 188-189. The constitutional equal protection guarantee applies to prisoners. As explained in Jackson v Bishop, 404 F2d 571, 576 (CA 8, 1968): Lawful incarceration may properly operate to deprive the convict of certain rights which would otherwise be his to enjoy. A classic example is [the] denial to the felon of the right to vote. . . . On the other hand, a prisoner of the state does not lose all his civil rights during and because of his incarceration. In particular, he continues to be protected by the due process and equal protection clauses which follow him through the prison doors. [Citations omitted.] Because, as our Supreme Court has stated, the protections of subsection 302(a) of the Civil Rights Act — 740 — were intended to be coextensive with the Equal Protection and Antidiscrimination Clauses of the Michigan Constitution, and because prisoners do not lose their right to equal protection by virtue of their status as inmates, we can only conclude that the Legislature also intended all persons — including inmates — to be protected under subsection 302(a). Further, as noted by the trial court, nowhere does the language of the Civil Rights Act purport to preclude its application because of a person’s status as a prisoner or inmate. Compare Walters v Dep’t of Treasury, 148 Mich App 809, 819; 385 NW2d 695 (1986); Marsh v Dep’t of Civil Service, 142 Mich App 557, 569; 370 NW2d 613 (1985). When the Legislature has seen fit to exclude prisoners from the provisions of a statute, it has specifically done so. See, e.g., MCL 15.231(2); MSA 4.1801(1)(2), excluding “those persons incarcerated in state or local correctional facilities” from provisions of the Freedom of Information Act. A court must not judicially legislate by adding into a statute provisions that the Legislature did not include. Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 421; 565 NW2d 844 (1997). Accordingly, we decline to read into the Civil Rights Act an exclusion barring prisoners from bringing an action under subsection 302(a). IV Defendants suggest that any holding that the Civil Rights Act applies to prisoners will unacceptably impair the MDOC’s corrections responsibilities. Their fear is unwarranted. At least to the extent that a state agency’s conduct is at issue, the protections of subsection 302(a) of the Civil Rights Act were intended — 741 — to be coextensive with those of the Antidiscrimination and Equal Protection Clauses of the constitution. Dep’t of Civil Rights, supra, p 188. As our Supreme Court stated in Dep’t of Civil Rights, supra, p 189: Discrimination, in constitutional terms, refers to baseless and irrational line drawing. . . . When there is a sufficiently important governmental interest and the classification is adequately related to that interest, it does not amount to discrimination to draw legislative lines on the basis of those classifications. It would be anomalous at best and contradictory at worst to attempt to rid the state of discriminatory practices by the use of an arbitrary standard that would prohibit, in effect, any line drawn between the genders, regardless of its relevance to the purpose of the regulation, unless the Legislature, in its wisdom and its own good time, countervails it. Thus, even though we hold that subsection 302(a) prohibits the MDOC from engaging in discriminatory practices in the operation of its correctional facilities, the MDOC may still treat prisoners differently on the basis of gender, provided that the gender-based treatment can pass constitutional muster. As the Court acknowledged in Dep’t of Civil Rights, merely because the state engages in a practice that treats men and women differently, it does not necessarily mean that it engages in unlawful gender discrimination. Rather, the test is whether the gender-based treatment serves a sufficiently important governmental interest and is substantially related to the achievement of that interest. Dep’t of Civil Rights, supra, p 189. The MDOC may therefore treat prisoners differently on the basis of gender without violating subsection 302(a), as long as the gender-based treatment — 742 — serves important penological interests and is substantially related to the achievement of those interests. This approach to state sex discrimination claims by inmates mirrors not only the analysis employed in equal protection cases, but also the analyses typically employed by federal courts in 42 USC 1983 actions. See anno: Sex discrimination in treatment of jail or prison inmates, 12 ALR4th 1219. Because the MDOC admits that prisoners may bring equal protection claims under § 1983, our holding that prisoners are not excluded from the protections of subsection 302(a) of the Civil Rights Act should impose upon defendants no stricter standards than those to which they must presently adhere in order to survive either a constitutional or § 1983 challenge. v Finally, defendants argue that the Court of Claims, not the circuit court, had subject-matter jurisdiction over plaintiffs’ case. While it is generally true that the Court of Claims has exclusive jurisdiction over “all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state” or any of its agencies, MCL 600.6419(l)(a); MSA 27A.6419(l)(a), that exclusivity does not extend to Civil Rights Act claims. MCL 37.2801(1); MSA 3.548(801)(1); Rangel v Univ of Michigan, 157 Mich App 563, 564-565; 403 NW2d 836 (1987). Moreover, a complaint against the state seeking only equitable or declaratory relief must be filed in the circuit court. Watson v Bureau of State Lottery, 224 Mich App 639, 643; 569 NW2d 878 (1997), Silverman v Univ of Michigan Bd of Regents, 445 Mich 209, 217; 516 NW2d 54 (1994). Because plaintiffs no longer are seeking money damages, the circuit — 743 — court, rather than the Court of Claims, had jurisdiction to consider the Civil Rights Act claims, as well as the remaining equitable and declaratory claims against the mdoc and defendant McGinnis in his official capacity as the director of the MDOC. The circuit court also had jurisdiction over plaintiffs’ Civil Rights Act claims against the remaining individual defendants. MCL 600.6419(l)(a); MSA 27A.6419(l)(a). Moreover, the defendant guards and wardens are not state officers who may be sued in the Court of Claims. Lowery v Dep’t of Corrections, 146 Mich App 342, 349; 380 NW2d 99 (1985); Burnett v Moore, 111 Mich App 646, 648-649; 314 NW2d 458 (1981); Bandfield v Wood, 104 Mich App 279, 282; 304 NW2d 551 (1981). Accordingly, we find no error in the circuit court’s ruling that it had jurisdiction to hearing plaintiffs’ claims. Affirmed. Gage, J., concurred.