Neal v. Department of Corrections

583 N.W.2d 249, 230 Mich. App. 202

Opinions

O’Connell, P.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 mdoc wardens, deputy wardens, and corrections officers. 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 in part, reverse in part, and remand.

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 alleges 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 alleges that the inmates are subject to retaliation for reporting this gender-based misconduct. Plaintiffs claim 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. Plaintiffs’ complaint requests injunctive and declaratory relief as well as compensatory damages.¹

On August 1, 1996, defendants moved for summary disposition on the grounds that the circuit court lacked subject-matter jurisdiction, that the claims of some class members were barred by release, prior judgment, or statute of limitations, that all defendants enjoyed immunity under Michigan law, and that plaintiffs had failed to state a claim upon which relief could be granted. On September 24, 1996, the circuit court denied defendants’ motion on all grounds. On October 23, 1996, defendants requested leave to appeal the court’s denial of their motion for summary disposition with regard to the claims set forth under the Civil Rights Act and with regard to the subject-matter jurisdiction issue. This Court granted leave to appeal on October 31, 1996, limited to those issues. We now examine each issue in tarn.

i

Defendants first claim that the Civil Rights Act does not apply to prisoners incarcerated by the Michigan Department of Corrections. Defendants specifically note that the language of the statute is inapplicable because correctional facilities are not open to the general public and because prisoners are not members of the general public for purposes of the statute. The trial court held that the mdoc is a “public service” agency prohibited from engaging in gender-based discrimination or harassment under subsection 302(a) of the act, MCL 37.2302(a); MSA 3.548(302)(a). 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. Because this is an issue of first impression in Michigan, our task is to determine whether the Legislature intended the activities complained of here to be included within the scope of the Civil Rights Act.

When interpreting a statute, our goal is to ascertain and effectuate the intent of the Legislature. Folands Jewelry Brokers, Inc v City of Warren, 210 Mich App 304, 307; 532 NW2d 920 (1995). The first criterion in determining intent is to examine the specific language in the statute. Ballman v Borges, 226 Mich App 166, 168; 572 NW2d 47 (1997). Statutory language should be construed reasonably, keeping in mind the purpose of the statute. Attorney General v Public Service Comm, 220 Mich App 561, 565; 560 NW2d 348 (1996). We resort to judicial construction only where the statute is so unclear that reasonable minds could disagree with regard to the meaning of the statute. Folands, supra.

The Legislature enacted the Civil Rights Act as a means of preventing 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 Preamble to 1976 PA 453 provides, in relevant part, that the purposes of the act include: “to define civil rights; to prohibit discriminatory practices, policies, and customs in the exercise of those rights based upon religion, race, color, national origin, age, sex, height, weight, familial status or marital status; . . . [and] to provide remedies and penalties . . . .” The act is remedial and must be liberally construed to provide a broad remedy. 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:

As used in this article:

(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, 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 subdivision, 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)].

Plaintiffs argue 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 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 clubfs], or other establishments] not in fact open to the public . . . .”

To the extent a prison opens its doors to visitors, employees, officials, or other persons who voluntarily seek admittance or to utilize any service available to free citizens, those persons concededly may not be the subject of any form of discrimination proscribed by the Civil Rights Act. However, we can perceive no legislative intent to extend the dictates of the Civil Rights Act to prisoners. A cardinal rule of statutory construction precludes any interpretation of a statute that leads to absurd or unjust results. Williams v Secretary of State, 338 Mich 202, 208; 60 NW2d 910 (1953). If the Civil Rights Act applies to prisoners, then the existence of separate prison “facilities” for men and women patently violates the statutory prohibition against gender discrimination; yet surely it is absurd to suggest that male and female prisoners must be housed together. See Klinger v Dep’t of Corrections, 31 F3d 727 (CA 8, 1994); Timm v Gunter, 917 F2d 1093, 1102-1103 (CA 8, 1990). Similarly, it is absurd to suggest that the MDOC could not segregate prisoners according to age, despite legitimate penological purposes that are served by such a classification. Yet, if the Civil Rights Act applies to prisoners, one might draw such a conclusion. Hence, we reject a reading of the act that would include prisons within its ambit in their dealings with prisoners.

Prison administrators must be accorded wide-ranging deference with respect to their adoption, implementation, and execution of policies and practices that in their judgment are needed to preserve internal order, discipline, and institutional security. Bell v Wolfish, 441 US 520, 547; 99 S Ct 1861; 60 L Ed 2d 447 (1979). However, that deference does not insulate from review actions taken in bad faith and for no legitimate penological purpose. Whitley v Albers, 475 US 312, 321-322; 106 S Ct 1078; 89 L Ed 2d 251 (1986). Thus, for example, a prison inmate generally lacks a reasonable expectation of privacy with respect to the Fourth Amendment protection against unreasonable searches and seizures. Hudson v Palmer, 468 US 517, 525-526; 104 S Ct 3194; 82 L Ed 2d 393 (1984). On the other hand, notwithstanding a prisoner’s diminished right of privacy as compared with free citizens, the infringement of that privacy by prison officials cannot be based upon an arbitrary or irrational justification or no justification at all. Bell, supra at 559.

Accepting, in the summary disposition context, the well-pleaded allegations of plaintiffs’ complaint as true, Horn v Dep’t of Corrections, 216 Mich App 58, 66; 548 NW2d 660 (1996), infringements of the privacy of female inmates occur on a regular basis in the Michigan correctional system. When faced with the conflict between legitimate security precautions and sexual harassment or abuse, a number of federal courts have required prison administrators to allow female, inmates to dress or undress and use toilet facilities without unnecessarily being viewed by guards or other prisoners, particularly those of the opposite gender. See, e.g., Forts v Ward, 621 F2d 1210, 1216-1217 (CA 2, 1980); Lee v Downs, 641 F2d 1117, 1119 (CA 4, 1981). Absent a showing of a legitimate governmental interest in the privacy invasions alleged, these unnecessary infringements on privacy rights are actionable under 42 USC 1983 as violations of plaintiffs’ constitutional rights. Dawson v Kendrick, 527 F Supp 1252, 1316-1317 (SD W Va, 1981). Admittedly, 42 USC 1983 ordinarily does not permit vicarious liability to be imposed on prison administrators. See Will v Michigan Dep’t of State Police, 491 US 58, 68-69; 109 S Ct 2304; 105 L Ed 2d 45 (1989). However, because the activity violates the Eighth Amendment, a Bivens2-type action, arising directly under the United States Constitution, may be maintained against both the recreant officials and the mdoc. Carlson v Green, 446 US 14, 19-20; 100 S Ct 1468; 64 L Ed 2d 15 (1980). See, also, Smith v Dep’t of Public Health, 428 Mich 540, 618-619; 410 NW2d 749 (1987) (Brickley, J.), aff’d sub nom Will, supra.

Plaintiffs may also have a direct constitutional claim. For example, the Equal Protection Clauses of the Fourteenth Amendment and Const 1963, art 1, § 2 may provide the constitutional underpinnings for a cause of action to redress the situation. Craig v Boren, 429 US 190, 197; 97 S Ct 451; 50 L Ed 2d 397 (1976); Kersh v Bounds, 501 F2d 585, 588 (CA 4, 1974). This type of action is appropriate if gender-based classifications fail to serve important governmental objectives or are not substantially related to the achievement of those objectives. See Craig, supra. A constitutional claim may also be appropriate against those persons or entities not amenable to suit under 42 USC 1983.

Our decision recognizes the rights of plaintiffs not to be subjected to any form of sexual harassment. At the same time, our decision accords proper deference to principles of statutory interpretation. By relying directly on the state and federal constitutions, we achieve the goal of legally protecting basic human rights. Thus, even though we hold that the Civil Rights Act does not apply to the MDOC’s relations with prisoners, our decision is not a license for the mdoc to engage in discriminatory practices in the operation of its correctional facilities. The MDOC may still, consistent with the Fourteenth Amendment of the United States Constitution, treat prisoners differently on the basis of gender. However, the gender-based treatment must still pass constitutional muster — that is, the gender-based treatment must serve important penological interests and be substantially related to the achievement of those interests. See Dep’t of Civil Rights ex rel. Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 190-194; 387 NW2d 821 (1986); Craig, supra.

Finally, we feel it appropriate to reply to the concurring opinion. The parties recognize that the scope of the Civil Rights Act is limited to either a “place of public accommodation” or a “public service” as defined by the statute. The parties concede that a prison is not a “place of public accommodation.” Therefore, in order for the MDOC to fall within the ambit of the Civil Rights Act, it must fall within the scope of the term “public service.” While the statute could, in fact, be read in a manner that supports plaintiffs’ position, we believe that such a reading is inappropriate and dangerous.

The concurring opinion liberally construes the term “public service” and concludes that the mdoc “falls within the broad statutory definition of a ‘public service’ set forth in subsection 301(b).” Post at 217. While we may agree with the concurring opinion that subsection 301(b) is inartfully drafted, and that the Legislature may wish to redraft this definition, we do not conclude that the term somehow includes prisoners, or that prisons are “established to provide service to the public.” We are not inclined to put a judicial gloss on the otherwise plain meaning found in this statutory definition.

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 act. 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 term “public service,” because “government” would subsume the entire spectrum. See Frank v William A Kibbe & Associates, Inc, 208 Mich App 346, 350-351; 527 NW2d 82 (1995) (“In construing a statute, the court should presume that every word has meaning and avoid a construction which would render a statute, or any part of it, surplusage or nugatory.”).

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 to do just the opposite — to keep incarcerated individuals from the public. A prison is not like a court, a hospital, or the office of the Secretary of 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. An example, hopefully, will clarify this point. Suppose that two gangs, membership in each of which is based on race or ethnicity, get into a fight in a Michigan prison. In order to avoid any further incidents, the warden arranges transfers of the gang leaders to different prisons. One of these individuals then brings a lawsuit pursuant to the Civil Rights Act against the MDOC, alleging that he was transferred on account of race, sex, age, or some other protected personal characteristic. Unfortunately, the concurring opinion would allow this type of discrimination lawsuit. We do not believe that this was the intended result of the Civil Rights Act. Prisoners simply are 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 comers 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 an 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.

n

Defendants’ next argument on appeal is that the Court of Claims, not the circuit court, had subject-matter jurisdiction over plaintiffs’ case. We disagree. While it is generally tme 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), a complaint against the state seeking only equitable or declaratory relief must be filed in the circuit court. 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 court, rather than the Court of Claims, has proper jurisdiction to consider the remaining equitable and declaratory claims against the MDOC and defendant Kenneth McGinnis in his official capacity as the director of the mdoc.

Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.

Gage, J., concurred.

Mackenzie, J.

1

An initial request for monetary damages was ordered dismissed.

2

Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388; 91 S Ct 1999; 29 L Ed 2d 619 (1971).