Jane DOE and Joan Roe, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
Docket No. 200810.
Court of Appeals of Michigan.
Submitted May 24, 2001, at Lansing. Decided December 28, 2001, at 9:00 a.m. Released for Publication March 19, 2002.*270 Deborah LaBelle and Jeffrey Dillman, Ann Arbor, for the plaintiffs.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Mark Matus, Assistant Attorney General, for the defendant.
Mark A. Cody, Lansing, for Michigan Protection and Advocacy Services, Inc., Michael Steinberg and Mary Moss, Detroit, *271 for American Civil Liberties Union Fund of Michigan, Sandra Girard and Maia Justine Storm, Jackson, for Prison Legal Services of Michigan, Inc., Amici Curiae.
Before: HOEKSTRA, P.J., and DOCTOROFF, MURPHY, MARKEY, SMOLENSKI, WHITBECK, and TALBOT, JJ.[1]
ON REMAND
PER CURIAM.
In our previous opinion,[2] the majority of a special panel of this Court resolved the conflict between Neal v Dep't of Corrections (On Rehearing) Neal II[3] and Doe v. Dep't of Corrections[4] by holding that the reasoning in Neal II was consistent with established rules of statutory construction. Defendant Michigan Department of Corrections appealed to the Michigan Supreme Court. In lieu of granting the department's application for leave to appeal, the Court remanded the case to this panel to consider whether the claims of plaintiffs Jane Doe and Joan Roe are barred because recent amendments (1999 PA 201) of the Persons With Disabilities Civil Rights Act (PWDCRA)[5] should be applied retroactively to this case.[6] Pursuant to the directive from the Supreme Court, we now address the retroactivity issue that we previously considered unnecessary for our disposition. We conclude that the 1999 amendment of the PWDCRA does not apply retroactively so as to bar plaintiffs' preenactment cause of action.
I. Basic Facts And Procedural History
This is a class action brought in 1990 by current or former prisoners under the jurisdiction of the department on behalf of all prisoners who, pursuant to department policy, were denied placement in community residential programs, camps, and farms on the basis of their HIV-positive status. Among other constitutional claims, plaintiffs alleged that the department's policy directive, PD-DWA-42.08, governing the "control of communicable blood-borne diseases (AIDS, Hepatitis B)," violated the Handicappers Civil Rights Act, now the PWDCRA. The trial court granted the department's motion for summary disposition and dismissed plaintiffs' PWDCRA claim. After the trial court issued a final order, plaintiffs filed a claim of appeal in this Court.
The original Doe panel's review of the trial court's resolution of plaintiffs' PWDCRA claim involved construing the statutory definition of "public service." The original Doe panel's decision to reverse the trial court's grant of summary disposition and remand the case for trial was compelled by this Court's earlier resolution of Neal II, a class action brought in part under the Civil Rights Act[7] in which female inmates incarcerated by the department alleged that male corrections personnel had systematically engaged in a pattern of sexual harassment.
*272 In pertinent part, the PWDCRA provides that
a person shall not ... [d]eny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation or public service because of a disability 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.[8]
"Public service," in turn, was defined in the act 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.[9]
In Neal v. Dep't of Corrections (Neal I)[10] Judge O'Connell authored a majority opinion holding that correctional facilities are not "places of public service," making the Civil Rights Act inapplicable to prisons.[11] Judge O'Connell observed that the "key phrase" in § 301 of the Civil Rights Act was "established to provide service to the public"[12] and reasoned that "[p]risons are not established to provide service to the public (at least not to a public that includes prisoners)."[13] Indeed, Judge O'Connell stated that prisons are designed to do "just the opposite to keep incarcerated individuals from the public."[14]
Judge MacKenzie dissented. She would have applied a liberal construction of the statutory language to instead reach the opposite conclusion that the department fell within the broad statutory definition of "public service."[15]
In Neal II, Judge MacKenzie authored the majority opinion and held that the Civil Rights Act was applicable to prisoners. The majority in Neal II relied on reasoning in Pennsylvania Dep't of Corrections v Yeskey[16] that inmates are members of the public and that civil rights acts are to be liberally construed to provide the broadest possible remedy. The majority drew a direct analogy between the phrase "public entity" used in the federal Americans with Disabilities Act and the phrase "public service" used in the Civil Rights Act, concluding that the reasoning in Yeskey therefore applied equally to the issue in Neal II involving the Civil Rights Act. The majority held that "[o]nly by reading `private club, or other establishment not in fact open to the public' in its most restrictive, literal sense, may a correctional facility *273 be deemed to be `not open to the public.'"[17] Further, the majority noted that when the Legislature has seen fit to exclude prisoners from the provisions of a statute, it has specifically done so.[18] In dissent, Judge O'Connell readopted his position in Neal I and found that Yeskey did not require a different result because the definition of public entity in the Americans with Disabilities Act differed from the definition of public service used in the Civil Rights Act.[19]
Hence, the original majority of the panel in Doe found itself constrained by MCR 7.215(H), now 7.215(I), to follow the majority opinion in Neal II for its resolution of the PWDCRA issue in this case.[20] The majority reversed the trial court's grant of summary disposition to the department and remanded the matter for trial. However, the original panel stated that were it permitted, it would instead affirm in part and reverse in part for the reasons set forth in the majority opinion in Neal I and Judge O'Connell's dissenting opinion in Neal II. Consequently, this conflict panel was convened in July 1999 to resolve the conflict between Neal II and the opinion issued in Doe.
In December 1999, the Governor signed 1999 PA 201, which in pertinent part amended § 301 of the PWDCRA. 1999 PA 201 amended § 301 to include the following italicized phrase in the definition of "public service":
"Public service" means 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, except that public service does not include a state or county correctional facility with respect to actions or decisions regarding an individual serving a sentence of imprisonment.[21]
The enacting language of 1999 PA 201 provided the following:
This amendatory act is curative and intended to correct any misinterpretation of legislative intent in the court of appeals decision in Doe v. Department of Corrections, 236 Mich.App 801, 601 N.W.2d 696 (1999). This legislation further expresses the original intent of the legislature that an individual serving a sentence of imprisonment in a state or county correctional facility is not within the purview of this act.
The effective date of the act was March 10, 2000. On March 3, 2000, this conflict panel issued its opinion. The majority of this conflict panel adopted the majority opinion in Neal II that the Civil Rights Act was applicable to prisoners, holding that the reasoning was consistent with established rules of statutory construction.[22] This panel stated, "[i]f it is the intent of the Legislature not to have these statutes applied to prisoners and prisons, then it is incumbent on the Legislature to draft and *274 enact statutes that so provide."[23] However, this conflict panel noted that after submission and argument in this case, the Legislature amended certain provisions of the Civil Rights Act and the PWDCRA. The panel opined that "[t]he effect of these amendments is not before the Court and we render no opinion regarding this amended legislation."[24]
Judges Gribbs and Kelly dissented from the majority of this conflict panel, opining that "the clear and obvious definition of public service can only mean service to the public provided by persons, agencies or institutions"[25] and therefore that the majority in Neal I had correctly concluded that prisons, "in their dealings with prisoners,"[26] do not provide a service to the public.
The department applied for leave to appeal to the Michigan Supreme Court from this conflict panel's opinion. In lieu of granting the department's application for leave to appeal, the Michigan Supreme Court remanded the matter to this conflict panel, stating the following:
In lieu of granting leave to appeal, the case is remanded to the Court of Appeals with the direction that the special panel which decided this case consider whether plaintiffs' claims are barred because recent amendments (1999 PA 201) to the Persons With Disabilities Civil Rights Act, M.C.L. § 37.1101 et seq.; MSA 3.550(101) et seq., should be applied retroactively to this case. See Plaut v. Spendthrift Farm [sic], 514 U.S. 211, [115 S. Ct. 1447, 131 L. Ed. 2d 328] (1995). The opinion after remand is to be filed with the Clerk of the Supreme Court. Jurisdiction is retained.[27]
This Court subsequently ordered the parties to brief the retroactivity issue highlighted by the Michigan Supreme Court in its remand order. Plaintiffs filed a brief on remand as well as a reply brief to the department's brief on remand. Amicus curiae Michigan Protection and Advocacy Service, Inc., filed a short brief that either adopted or echoed many of plaintiffs' arguments.
II. Standard Of Review
Whether the 1999 amendment of the PWDCRA should be applied retroactively to plaintiffs' preenactment cause of action is a question of law that this Court reviews de novo.[28]
III. Retroactivity
A. The Promulgating Language
As noted above, effective March 10, 2000, the Legislature amended the PWDCRA to specifically exclude incarcerated prisoners from the class of persons entitled to damages under the act. The language of the statute is not at issue. Rather, we must determine the meaning of the promulgating language. Again, as noted above, in enacting 1999 PA 201, the Legislature provided the following:
This amendatory act is curative and intended to correct any misinterpretation of legislative intent in the court of appeals decision in Doe v. Department of *275 Corrections, 236 Mich.App. 801, 601 N.W.2d 696 (1999). This legislation further expresses the original intent of the legislature that an individual serving a sentence of imprisonment in a state or county correctional facility is not within the purview of this act.
B. The Retroactivity "Rules"
In In re Certified Questions (Karl v. Bryant Air Conditioning Co.),[29] the Supreme Court outlined four guiding principles or "rules" for determining when the Legislature intends for a new act to apply to a preenactment cause of action.
First, is there specific language in the new act which states that it should be given retrospective or prospective application. See headnote no. 1, Hansen-Snyder Co. v. General Motors Corp., 371 Mich. 480, 124 N.W.2d 286 (1963). Second, "[a] statute is not regarded as operating retrospectively [solely] because it relates to an antecedent event." Hughes v. Judges' Retirement Board, 407 Mich. 75, 86, 282 N.W.2d 160 (1979). Third, "[a] retrospective law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past." Hughes, supra, p. 85, 282 N.W.2d 160; Ballog v. Knight Newspapers, Inc., 381 Mich. 527, 533-534, 164 N.W.2d 19 (1969). Fourth, a remedial or procedural act which does not destroy a vested right will be given effect where the injury or claim is antecedent to the enactment of the statute. Rookledge v. Garwood, 340 Mich. 444, 65 N.W.2d 785 (1954).[30]
The second rule is not at issue here because the Michigan Supreme Court has interpreted second rule cases as related to measuring the amount of entitlement provided by a subsequent statute in part by services rendered pursuant to a prior statute.[31] However, we will separately address the applicability of the remaining three rules to this case. We hold that application of the third and fourth rules dictates the conclusion that 1999 PA 201 should not be applied retroactively and that plaintiffs' preenactment cause of action is therefore not barred.
C. The First Rule: "Is There Specific Language In The New Act Which States That It Should Be Given Retrospective Or Prospective Application?"
Applying the first rule, we find that the Legislature included language in the new act suggesting that it intended for the act to have retrospective application. Although 1999 PA 201 does not use the word "retroactive," we cannot fail to notice the Legislature's statements that it promulgated the act as an expression of its "original" intent and that it intended to "cure" this Court's earlier decision. However, our analysis does not end here. Whether the Legislature indeed balanced the benefits of retroactivity against the potential for disruption or unfairness is a query specifically contemplated by application of rules three and four to this case. Application of these two latter rules compels us to conclude that it would be improper to apply the 1999 amendment retroactively.
*276 D. The Third Rule: "A Retrospective Law Is One Which Takes Away Or Impairs Vested Rights Acquired Under Existing Laws, Or Creates A New Obligation And Imposes A New Duty, Or Attaches A New Disability With Respect To Transactions Or Considerations Already Past."
Rule three defines those retroactive situations that are not legally acceptable. Specifically, a law may not apply retroactively if it abrogates or impairs vested rights, creates new obligations, or attaches new disabilities regarding transactions or considerations already past.[32] In Frank W Lynch & Co v. Flex Technologies, Inc,[33] the Michigan Supreme Court held that the presumption of prospective application was "especially true" where retroactive application of a statute would impair vested rights, create a new obligation and impose a new duty, or attach a disability with respect to past transactions.
In this case, plaintiffs claim a vested right in their cause of action under the PWDCRA. A cause of action becomes a vested right when it accrues and all the facts become operative and known.[34] Plaintiffs' cause of action accrued and all the facts became operative and known before the effective date of 1999 PA 201. Retroactive application of the amended definition of "public service" would impair plaintiffs' cause of action under the PWDCRA, because prisons would be excluded as places of public service prohibited from discriminating on the basis of disability. Accordingly, we conclude that the new statute is within the general proscription of rule three.
E. The Fourth Rule: "A Remedial Or Procedural Act Which Does Not Destroy A Vested Right Will Be Given Effect Where The Injury Or Claim Is Antecedent To The Enactment Of The Statute."
In defining those retrospective situations that are acceptable, the fourth rule establishes the corollary to the general proscription found in rule three.[35] The fourth rule provides that a remedial or procedural statute may operate retrospectively if it does not take away vested rights.[36]
The Michigan Supreme Court has held that a statute significantly affecting a party's substantive rights should not be applied retroactively merely because it can also be characterized in a sense as "remedial."[37] "Remedial," in this context, should only be employed to describe legislation that does not affect substantive rights.[38] The legislation in this case affects substantive rights and therefore cannot operate retrospectively according to the fourth rule.
F. Conclusion
In sum, according to the rules announced in Karl, we hold that application of the 1999 amendment to the facts of this case would be an improper retroactive application because § 301 of the PWDCRA, as amended, is not remedial but would impair vested rights. We also conclude that 1999 PA 201 does not violate art 3, § 2 of the Michigan Constitution, which *277 would preclude the Legislature from reversing or setting aside a judgment entered by a court.[39] Accordingly, we answer the question posed by the Michigan Supreme Court on remand in the negative: plaintiffs' preenactment cause of action is not barred by the 1999 amendment of the PWDCRA.
Reversed and remanded for further proceedings.
HOEKSTRA, P.J. (concurring).
I agree with the majority's conclusion that § 301 is prospective in application and join in its reasoning in all but part III C of its opinion. I write separately to express my opinion on the application of the "first rule" from In re Certified Questions (Karl v. Bryant Air Conditioning Co), 416 Mich. 558, 570-571, 331 N.W.2d 456 (1982).
The first rule poses the following query: "is there specific language in the new act which states that it should be given retrospective or prospective application." Id. at 570, 331 N.W.2d 456. In considering the promulgating language of 1999 PA 201, I look for guidance in our Supreme Court's recent opinion in Frank W Lynch & Co. v. Flex Technologies, Inc., 463 Mich. 578, 624 N.W.2d 180 (2001). There, our Supreme Court strove to "reemphasize the strong presumption against the retroactive application of statutes in the absence of a clear expression by the Legislature that the act be so applied." Id. at 588, 624 N.W.2d 180.
As examples of the requisite "clear expression by the Legislature," the Court highlighted two statutes containing specific language on retroactive application. The Court cited M.C.L. § 141.1157, which provides that "[t]his act shall be applied retroactively," and M.C.L. § 324.21301a, which provides that "[t]he changes in liability that are provided for in the amendatory act that added this subsection shall be given retroactive application." Lynch, supra at 584, 624 N.W.2d 180. These statutes leave no doubt about the Legislature's intentions for the application of these specific statutes or about the Legislature's general ability to make clear its intention regarding the prospective or retroactive application of a statute. Consequently, I find it significant in this case that the Legislature omitted the word "retroactive" in 1999 PA 201.[1]
Unlike the majority, I am not persuaded that inclusion of the word "curative" and the phrase "original intent of the legislature" in the promulgating language sufficiently evidences an intent by the Legislature to make the act retroactive. This language does not necessarily indicate that the Legislature intended to cure retroactively but may merely indicate an intent to cure from this point forward. See, e.g., Rivers v. Roadway Express, Inc., 511 U.S. 298, 306-308, 114 S. Ct. 1510, 128 L. Ed. 2d 274 (1994). Retroactivity raises special policy concerns, making the choice to enact a statute that responds to a judicial decision quite distinct from the choice to make the responding statute retroactive. Id.
In my opinion, 1999 PA 201 does not contain language that specifically tells this Court that the intent of the Legislature *278 was for the act to be applied retroactively. Had the Legislature intended for the amendment to have retroactive effect, it easily could have inserted the word "retroactive" in the act as it has on previous occasions in other acts.
DOCTOROFF and MARKEY, JJ., concurred.
NOTES
[1] Judges Smolenski and Whitbeck substituted for now retired Judges Roman S. Gribbs and Michael J. Kelly, who participated in our original decision in this case.
[2] See Doe v. Dep't of Corrections, 240 Mich.App. 199, 611 N.W.2d 1 (2000).
[3] Neal v. Dep't of Corrections (On Rehearing), 232 Mich.App. 730, 743, 592 N.W.2d 370 (1998).
[4] Doe v. Dep't of Corrections, 236 Mich.App 801 (1999).
[5] MCL 37.1101 et seq.
[6] See 463 Mich. 982, 625 N.W.2d 750 (2001).
[7] MCL 37.2101 et seq.
[8] MCL 37.1302(a) (emphasis added).
[9] MCL 37.1301(b) (emphasis added).
[10] Neal v. Dep't of Corrections, 230 Mich.App. 202, 583 N.W.2d 249 (1998).
[11] The parties conceded that a prison is not a "place of public accommodation," which is defined in the act in part as "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. See Neal I, supra at 212, 583 N.W.2d 249; MCL 37.2301(a) (emphasis added).
[12] Id. at 213, 583 N.W.2d 249.
[13] Id. at 214, 583 N.W.2d 249.
[14] Id.
[15] Neal I, supra at 216-221, 583 N.W.2d 249.
[16] Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 118 S. Ct. 1952, 141 L. Ed. 2d 215 (1998).
[17] Neal II, supra at 738.
[18] Id. at 740, 583 N.W.2d 249.
[19] Id. at 743-749, 583 N.W.2d 249. The department applied for leave to appeal from this Court's decision in Neal II to the Michigan Supreme Court, but its application remains pending. See ___ Mich. ___, 630 N.W.2d 332 (2001).
[20] Doe v. Dep't of Corrections, 236 Mich.App 801, 601 N.W.2d 696 (1999).
[21] MCL 37.1301(b) (emphasis added).
[22] See Doe v. Dep't of Corrections, 240 Mich.App. 199, 611 N.W.2d 1 (2000).
[23] Id. at 201, 611 N.W.2d 1.
[24] Id. at 201, n. 1, 611 N.W.2d 1.
[25] Id. at 206, 611 N.W.2d 1.
[26] Id.
[27] 463 Mich. 982, 625 N.W.2d 750 (2001).
[28] See Frank W Lynch & Co. v. Flex Technologies, Inc., 463 Mich. 578, 583, 624 N.W.2d 180 (2001).
[29] In re Certified Questions (Karl v. Bryant Air Conditioning Co), 416 Mich. 558, 331 N.W.2d 456 (1982).
[30] Id. at 570-571, 331 N.W.2d 456.
[31] Id. at 571, 331 N.W.2d 456.
[32] Id. at 572, 331 N.W.2d 456.
[33] Lynch, supra at 583, 624 N.W.2d 180.
[34] Karl, supra at 572-573, 331 N.W.2d 456.
[35] Id. at 576, 331 N.W.2d 456.
[36] Id.
[37] Lynch, supra at 585, 624 N.W.2d 180.
[38] Id.
[39] See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995). See also Quinton v. General Motors Corp., 453 Mich. 63, 75, 551 N.W.2d 677 (1996).
[1] Applying Lynch, supra, this Court in Travis v. Preston, 247 Mich.App. 190, 197-198, 635 N.W.2d 362 (2001), also found it significant that there was an absence of a "clear expression" by the Legislature in amending the Right to Farm Act and therefore rejected the defendants' argument that the amended language should be retroactively applied.