Sharp v. City of Lansing

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 17, 2001

DAVID SHARP,

Plaintiff-Appellant,

v No. 116171

CITY OF LANSING,

Defendant-Appellee.

___________________________________

BEFORE THE ENTIRE BENCH

PER CURIAM

In this case, Plaintiff David Sharp brought a reverse

discrimination claim against the city of Lansing for its use

of an affirmative action plan in hiring decisions. Plaintiff

alleged violations of the Michigan Civil Rights Act (CRA)1 and

1
MCL 37.2101 et seq.

the Equal Protection Clause of the Michigan Constitution2.

The trial court granted summary disposition for the city,

finding plaintiff's claims barred by the "safe harbor"

provision of MCL 37.2210. The Court of Appeals upheld the

dismissal.3 238 Mich App 515; 606 NW2d 424 (1999).

It is beyond question that the safe harbor of the CRA

shields a public employer with a Civil Rights Commission

approved affirmative action plan from liability under the CRA

for acts undertaken pursuant to that plan. Principally at

issue is whether the safe harbor provision also shields such

an employer from constitutional equal protection challenges.

We hold that it does not. We affirm in part the decision of

the Court of Appeals, reverse it in part, and remand the case

to the trial court.

BACKGROUND

Plaintiff wanted to be a firefighter with the city of

Lansing Fire Department. He believed himself qualified, since

he was a certified firefighter and the fire chief in Onondaga

Township. For six consecutive years, 1990-1995, he applied

for a firefighter position with the city. Each time he was

2
Const 1963, art 1, § 2.

3
It reversed in part, allowing plaintiff to amend his

complaint to claim discrimination based on residency. This

aspect of the ruling is not in dispute.

denied employment. He believes that the city wrongfully

refused to hire him because he is a Caucasian male.

The reason for the repeated rejection, according to

Sharp, was the city's affirmative action plan.4 The plan was

formally approved by the Civil Rights Commission in April

1987, pursuant to § 210 of the CRA. That provision generally

encourages employers to implement voluntary affirmative action

plans and sets forth a procedure for doing so.

Plaintiff sued the city, seeking damages, an injunction

barring further use of the affirmative action plan, and a

position with the city fire department. He argued that § 210

did not bar his claim and that the city's plan operated

unconstitutionally with respect to him. Defendant disagreed

and moved for summary disposition on the ground that the safe

harbor of § 210 precluded all liability. The trial court

granted the motion before the close of discovery, relying on

MCR 2.116(C)(8), (10). It concluded that the CRA provided the

exclusive remedy for discrimination claims in the state and,

therefore, such a claim was barred in this instance.

The Court of Appeals affirmed the trial court's grant of

4
The details of the plan itself are not central to the

questions presented in this case. The stated goal of the plan

was to increase the percentage of minorities and women in the

fire department, which was composed predominantly of white

males. In the interest of achieving its goal, the city made

race and gender factors in hiring decisions.

summary disposition, relying on Cole v General Motors Corp.5

The panel believed that it was bound by the precedent of Cole;

but disagreed with the reasoning employed there. It stated:

Because plaintiff does not challenge the

constitutionality of the Civil Rights Act itself,

but only the validity of defendant's affirmative

action plan and the actions of defendant employer,

we believe that the ruling in Cole effectively

resolves plaintiff's claim in this case. Were it

not for the Cole decision, however, we would reach

a different result. [238 Mich App 519.]

If working from "a clean slate," the Court of Appeals

majority6 added, it would not interpret § 210 as providing

defendant employer with a shield from liability. Instead, it

would have subjected the plan itself to constitutional review

and would have held that § 210 does not "automatically" confer

immunity from statutory liability under the CRA. We granted

plaintiff's application for leave to appeal.

Plaintiff argues that the city's affirmative action plan

should not have been approved. He asserts that the plan

delegates too much authority to the city by allowing the city

to make changes to it without commission approval. He

contends, also, that the trial court erred by granting summary

5
236 Mich App 452; 600 NW2d 421 (1999). Cole provided

that an employer is insulated from liability under the CRA

whenever it is insulated under title VII, its federal

counterpart.

6
The per curiam opinion was signed by Court of Appeals

Judges Michael J. Talbot and Jane E. Markey. Judge E. Thomas

Fitzgerald concurred in the result only.

disposition before discovery ended. A genuine issue of fact

exists, he argues, about whether the plan ever received

approval from the commission. Finally, he challenges the

lower court's decision that § 210 completely immunizes

defendant's actions taken in accordance with its approved

affirmative action plan.

ANALYSIS

This case involves the interplay of the Equal Protection

Clause of our constitution and the statutory framework of the

CRA. Art 1, § 2 guarantees Michigan citizens the right to be

free from racial discrimination in employment by state actors.

That clause provides:

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 CRA extended these protections to employment in the

private sector. Thus, it prohibits racial employment

discrimination by private and government employers7, while

7
Section 202 provides in pertinent part:

(1) An employer shall not do any of the

following:

(a) Fail or refuse to hire or recruit,

discharge, or otherwise discriminate against an

(continued...)

creating a damages remedy8 for those victimized by unlawful

employment acts.

Section 210 of the CRA invites employers to implement

their own affirmative action policies. Under this section, an

employer's actions that would otherwise violate the CRA are

permissible, provided they are taken pursuant to an

affirmative action plan properly approved by the commission.

Section 210 provides:

A person subject to this article may adopt and

carry out a plan to eliminate present effects of

past discriminatory practices or assure equal

opportunity with respect to religion, race, color,

national origin, or sex if the plan is filed with

the commission under rules of the commission and

the commission approves the plan.

We presume that the Legislature intended the unequivocal

meaning expressed in § 210. See Nation v WDE Electric Co, 454

Mich 489, 494; 563 NW2d 233 (1997). It provides a safe harbor

for public and private employers who act in accordance with

properly approved affirmative action plans. However, the safe

7
(...continued)

individual with respect to employment,

compensation, or a term, condition, or privilege of

employment, because of religion, race, color,

national origin, age, sex, height, weight, or

marital status. [MCL 37.2202.]

8
Section 801(1) provides: "A person alleging a violation

of this act may bring a civil action for appropriate

injunctive relief or damages, or both." [MCL 37.2801.]

harbor does not shield against all claims. It merely protects

employers from liability under the CRA for doing precisely

what the statute itself invites them to do.

In support of its motion for summary disposition,

defendant presented affidavits showing that its hiring

decisions had been made pursuant to an affirmative action plan

approved by the Civil Rights Commission in 1987. Plaintiff

does not dispute that the commission approved defendant’s 1987

plan. Rather, he argues that a genuine issue of material fact

exists whether defendant actually used the approved plan in

making hiring decisions between 1990 and 1995. Plaintiff

contends that defendant followed different and unapproved

plans when making the hiring decisions at issue. Moreover, he

asserts, the commission "exceeded its authority" by giving to

defendant the discretion periodically to adjust its hiring

goals without commission approval.

The essence of plaintiff's position is that defendant's

periodic revision of its hiring goals after 1987 resulted in

the establishment of new affirmative action plans. He argues

that these plans should have been submitted for commission

approval. However, plaintiff has offered no factual support

for his assertions. Accordingly, he has failed to create a

genuine issue of material fact whether defendant relied on a

series of separate, unapproved plans in making the hiring

decisions at issue. Moreover, he has not established that

further discovery would uncover support for that assertion.

Therefore, we reject his argument that summary disposition

entered prematurely with respect to the CRA claim.

In a related vein, plaintiff suggests that the commission

erred in failing to make findings of fact and conclusions of

law when it approved defendant's affirmative action plan.

Plaintiff did preserve the issue whether the commission was

required under the Administrative Procedures Act, MCL 24.285,

to make findings of fact and conclusions of law. However, for

the reasons set forth in the Court of Appeals decision, MCL

24.285 is not applicable to this case. 238 Mich App 521.

Accordingly, plaintiff has not preserved the issue whether the

commission was required under § 210 to make findings of fact

and conclusions of law. Thus, we conclude that the safe

harbor provision bars plaintiff's statutory claims against the

city.

But our inquiry does not end there. A state actor is

involved. Consequently, the protections provided directly by

the state Equal Protection Clause come into play. When an

aggrieved plaintiff alleges that a public employer denied his

equal protection rights in violation of art 1, § 2, the

employer's acts are subject to review under that

constitutional provision. Injunctive and declaratory relief

are available to restrain any acts found to violate the state

Equal Protection Clause.9 Hence, the mere existence of an

approved affirmative action plan does not insulate a state

employer, or its plan, from all judicial scrutiny.

In this case, plaintiff sought constitutional relief,

alleging that defendant's affirmative action plan violates

art 1, § 2.10 Defendant asserts that plaintiff did not

vigorously pursue his constitutional theory either at trial or

in the Court of Appeals. It argues that such a lack of

pursuit constitutes an abandonment of the claim, regardless of

how it was pleaded.11 We disagree that plaintiff failed to

pursue his constitutional claim sufficiently.

Although plaintiff's presentation of this issue was

somewhat scattered, the record reveals that plaintiff did

raise the issue at various stages of the litigation. First,

he challenged the constitutionality of defendant's plan in his

own motion for partial summary disposition, which was denied.

Next, he raised the issue in his motion for reconsideration of

However, money damages are not available to an

aggrieved plaintiff under these circumstances. See Lewis v

Michigan, 464 Mich __ ; ___ NW2d ___ (2001).

10
In his first amended complaint, plaintiff prayed that

the Ingham Circuit Court enter an order "enjoining Defendant

city of Lansing from discriminating in employment on the basis

of race, sex or national origin . . . ."

11
Defendant characterizes plaintiff's claim as an effort

to "vindicate equal protection rights through the vehicle of

[the CRA]." Thus, according to defendant, there is no stand
alone claim for constitutional relief.

the trial court's decision granting summary disposition to

defendant. Finally, he raised it in the Court of Appeals.

Indeed, the Court of Appeals itself acknowledged the issue.

The problem with the analyses of both the trial court and the

Court of Appeals is that the lower courts apparently assumed

that § 210 alone resolved plaintiff’s constitutional

challenge.

Hence, we find that plaintiff pleaded and pursued his

constitutional theory sufficiently to provide notice to

defendant of the claims against which it would have to defend.

Having preserved the issue, plaintiff is entitled to be heard

on his claim for injunctive relief.

The dissent’s conclusion that plaintiff’s constitutional

challenge is barred fails to appreciate that the safe harbor

provided by § 210 necessarily extends only to statutory claims

under the CRA. There is simply no requirement that a

plaintiff proceed through a statutory vehicle in order to seek

declaratory or injunctive relief against an alleged violation

of the state Equal Protection Clause. While the second

sentence of art 1, § 2 commits its affirmative

“implementation” to the Legislature,12 the first sentence of

this constitutional provision commands that “[n]o person shall

For this reason, we hold today in Lewis, supra, that

we do not have authority to grant money damages or other

compensatory relief for past violations of art 1, § 2.

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

duty imposed on the Legislature by the second sentence of

art 1, § 2 to implement art 1, § 2 is not a power to

ultimately define the substantive meaning of the first

sentence. Accordingly, while the state judiciary cannot

positively implement art 1, § 2, the judiciary has the

legitimate authority, in the exercise of the well-established

duty of judicial review, to evaluate governmental action to

determine if it is consistent with the equal protection

guarantees of the first sentence of art 1, § 2 and to

invalidate such action if it is not. In short, art 1, § 2

commands the Legislature to adopt measures to practically

implement its equal protection guarantees. This

“implementation” language does not mean that state and local

governmental entities are free to violate the substantive

equal protection guarantees of art 1, § 2 merely because the

Legislature has failed to address a particular type of

violation.

Our dissenting colleague relies heavily on an analogy to

federal law, particularly United States Supreme Court

decisions related to employment discrimination claims against

the federal government. The dissent portrays this case law as

indicating that title VII of the federal Civil Rights Act

(“title VII”) provides the exclusive remedy for employment

discrimination by the federal government. From this, the

dissent argues in essence that state statutes should be held

to provide the exclusive remedy for employment discrimination

claims against state or local government actors under state

law. As the dissent forthrightly acknowledges, this federal

case law can only be persuasive authority, not binding

precedent, in resolving the present case, which involves only

questions of state law. We consider the dissent’s attempted

analogy to federal law to be unpersuasive.

The dissent analogizes the present case to Brown v

General Services Administration, 425 US 820; 96 S Ct 1961; 48

L Ed 2d 402 (1976). In particular, our dissenting colleague

relies on language in Brown “that § 717 of the Civil Rights

Act of 1964, as amended, provides the exclusive judicial

remedy for claims of discrimination in federal employment.”

Brown, supra at 835. However, as the dissent acknowledges,

the claims in Brown were all statutory. Post at 9. Thus, at

most, Brown can only stand for the proposition that the Civil

Rights Act of 1964 provides the exclusive statutory remedy for

discrimination in employment by the federal government because

Brown did not involve a constitutional issue. Moreover, Brown

stated that even before the extension of title VII in 1972 to

cover federal employees “an action seeking to enjoin

unconstitutional agency conduct would lie . . . .” Id. at

826. Accordingly, consistent with our holding in the present

case, Brown accepted as an established principle that a party

could seek injunctive relief against unconstitutional

governmental action.

The dissent also contends that, in Great American Savings

& Loan Ass’n v Novotny, 442 US 366; 99 S Ct 2345; 60 L Ed 2d

957 (1979), the United States Supreme Court “made clear that

Brown’s reasoning extended to encompass the notion that title

VII preempts constitutionally based claims as well.” Post at

9. We disagree because Novotny, a case with only private

parties as litigants, did not involve any constitutional

claim. In Novotny, the male plaintiff alleged that he

suffered unlawful employment discrimination because he opposed

his former employer’s practice of discriminating against

female employees on the basis of sex in violation of the

“anti-retaliation” provision of title VII prohibiting an

employer from discriminating against an employee for opposing

a violation of title VII. In pertinent part, the plaintiff in

Novotny attempted to bring suit against that employer and its

directors under 42 USC 1985(3). Essentially, 42 USC 1985(3)

was the modern codification of a Reconstruction Era civil

rights statute that generally provided a private cause of

action against certain conspiracies to violate federally

protected rights. The Novotny Court noted its concern that,

if a violation of title VII could be asserted through this

other statute, many of the provisions of title VII would be

avoided. Accordingly, the Novotny Court declined to allow

such a cause of action.

We consider the dissent’s effort to analogize the present

case to Novotny unpersuasive for two critical reasons. First,

inasmuch as Novotny did not involve a governmental defendant,

it did not involve any constitutional claim of violation of

the equal protection guarantees of the United States

Constitution. Second, the plaintiff in Novotny was attempting

to redress conduct that was prohibited by title VII through

another, more generalized, federal statute, and his claim that

title VII was violated was an essential aspect of his claim.

In contrast, while the present plaintiff cannot proceed under

the CRA because of the safe harbor provided by § 210, that

does not mean that he cannot claim that the conduct at issue

by the city of Lansing is violative of the state Equal

Protection Clause. Thus, Novotny is simply inapposite to

whether injunctive relief is available against governmental

action that is unconstitutional if it is claimed that action

violates the constitutional equal protection guarantees.

The dissent further cites Davis v Passman, 442 US 228; 99

S Ct 2264; 60 L Ed 2d 846 (1979), in support of its discussion

of plaintiff’s constitutional claim. Post at 7. However, we

believe that Davis actually supports our analysis. In Davis,

a female employee of a member of congress was informed by him

in a letter that she was removed from her position because he

concluded that it was “essential” that the position be held by

a man. At that time, congressional employees like the

petitioner in Davis were not protected from employment

discrimination under title VII of the Civil Rights Act. See

id. at 247 (“[w]hen § 717 was added to title VII to protect

federal employees from discrimination, it failed to extend

this protection to congressional employees such as petitioner

who are not in the competitive service”). The United States

Supreme Court held that the plaintiff in Passman could bring

a cause of action directly under the Due Process Clause of the

Fifth Amendment on the basis of sex discrimination in

violation of its equal protection component. Id. at 242-244.

Properly understood then, Davis supports our treatment of

the constitutional claim in the present case. The plaintiff

in Davis was unable to seek relief under the generally

applicable federal statute against employment discrimination

because, as a congressional employee, she was not covered by

that statute. Similarly, because of § 210, the state CRA

provides no recourse for a person who alleges that conduct by

a governmental employer pursuant to an affirmative action plan

properly approved under § 210 constitutes unconstitutional

employment discrimination in violation of art 1, § 2. In

effect, a person who may have suffered unconstitutional

employment discrimination under such a plan, assuming it is

adopted and approved, is not covered by the CRA.

Nevertheless, as in Davis, such a person is able to directly

challenge the alleged constitutional violation.13 Indeed, the

Davis Court expressly stated that “this Court has already

settled that a cause of action may be implied directly under

the equal protection component of the Due Process Clause of

the Fifth Amendment in favor of those who seek to enforce this

constitutional right.” Davis, supra at 242. In support of

this principle, the Court referred to Bolling v Sharpe, 347 US

497; 74 S Ct 693; 98 L Ed 884 (1954), in which the Court held

that “equitable relief” was available to plaintiffs

challenging racial segregation in the District of Columbia

schools as violative of the Fifth Amendment. See Davis, supra

at 242-243. As the Davis Court noted, the action in Bolling

was predicated directly on the Fifth Amendment. Davis, supra

Of course, the type of relief that is directly

available for a violation of art 1, § 2 is different from the

action for money damages against the federal government

available under Davis. As we have discussed above, this

Court’s holding today in Lewis, supra, makes clear that there

is no cause of action for money damages arising directly under

art 1, § 2. Rather, a plaintiff may seek injunctive or

declaratory relief against the alleged constitutional

violation.

at 243. Thus, Bolling and Davis support a conclusion that

injunctive relief is available to end a constitutional

violation without the need for any type of implementing

statute.14

The United States Supreme Court decision in Smith v

Robinson, 468 US 992; 104 S Ct 3457; 82 L Ed 2d 746 (1984),

also fails to support Justice Kelly’s view that plaintiff may

not directly seek injunctive relief under the Michigan

Constitution. Smith involved claims that a handicapped child

was denied a “free appropriate public education” in violation

of, in pertinent part, the federal Education of the

Handicapped Act (EHA), 20 USC 1400 et seq., and the federal

Equal Protection Clause. Smith, supra at 994-995. The

pertinent issue in Smith was whether the petitioners could

recover attorney fees under 42 USC 1988, which generally

allowed such a recovery in favor of plaintiffs seeking to

enforce federal constitutional rights when the specifically

applicable EHA, as then in effect, made no provision for

awarding attorney fees. The Court concluded that attorney

14
The dissent misapprehends our consideration of Bolling

in stating that our use of that case “to predict the effects

of a legislative act in 1972 evidences a remarkable twist of

the laws of time and space.” Post at 24, n 25. We do not in

any way rely on Bolling as indicating the intent of Congress

in making any amendments to title VII in 1972. Rather, we

rely on Bolling as indicating that a court may directly grant

injunctive relief against a constitutional violation without

regard to the content of any statute.

fees could not be awarded under 42 USC 1988, because Congress

“intended the EHA to be the exclusive avenue through which a

plaintiff may assert an equal protection claim to a publicly

financed special education.” Smith, supra at 1009.

Accordingly, the issue involved in Smith was actually one of

statutory construction or application, not of federal

constitutional law. Thus, Smith does not support a view that

a statute may preclude injunctive relief to end a

constitutional violation.

Moreover, the Smith Court stated “where the EHA is

available to a handicapped child asserting a right to a free

appropriate public education, based either on the EHA or on

the Equal Protection Clause of the Fourteenth Amendment, the

EHA is the exclusive avenue through which the child and his

parents or guardian can pursue their claim.” Smith, supra at

1013 (emphasis added). At the very most, this can only

reasonably be taken to support the view that, if a statutory

remedy is available for an alleged constitutional violation,

a party may be required to seek to a remedy that alleged

constitutional violation through the procedures provided by

the statute. However, as we have discussed above, plaintiff

cannot challenge the alleged unconstitutional discrimination

by defendant in this case under the CRA because of the

immunity provided by § 210 of the CRA. Accordingly, because

the CRA is not available to plaintiff, Smith provides no

support for a contention that plaintiff may not directly seek

injunctive relief under the Michigan Constitution.

Indeed, the Smith Court expressly stated:

There is no issue here of Congress’ ability to

preclude the federal courts from granting a remedy

for a constitutional deprivation. Even if Congress

repealed all statutory remedies for constitutional

violations, the power of federal courts to grant

the relief necessary to protect against

constitutional deprivations or to remedy the wrong

done is presumed to be available in cases within

their jurisdiction. [Smith, supra at 1012, n 15.]

This language makes clear that the United States Supreme Court

in Smith did not regard the legislative branch as having the

power through a statute to foreclose the ability of the

judicial branch to order an end to constitutional violations.15

Our dissenting colleague also attempts to analogize the

present case to a large number of lower federal court

decisions, see post at 16-17, in support of her position with

regard to plaintiff’s constitutional claim, while forthrightly

acknowledging that “[s]ome federal circuits have held that

title VII does not necessarily provide the only remedy

available for employment discrimination claims.” Post at 16,

15
Consistent with our holding today in Lewis, supra, we

reiterate that judicial authority under the state Equal

Protection Clause is limited to providing injunctive or

declaratory relief to nullify unconstitutional legislation or

otherwise stop a recurring violation of the state Equal

Protection Clause. As discussed in Lewis, because of the

language of the state Equal Protection Clause, any provision

for compensatory relief or similar measures to positively

implement the clause requires legislative action.

n 23. Given that we have already explained why we find the

United States Supreme Court decisions on which the dissent

relies inapposite and that federal law can at most be

persuasive, not binding, authority in resolving the state law

questions involved in the present case, we will not burden

readers of this opinion with a further discussion of case law

from the lower federal courts.

We note that the dissent indicates that it would not

allow plaintiff to pursue “parallel constitutional claims to

remedy wrongs cognizable under the CRA,” post at 28, which, in

plain language, means that a discrimination plaintiff cannot

say, as this one effectively has, “I do not claim that the

statute is unconstitutional. I only claim the way the statute

was used, or applied, is discriminatory and, thus,

unconstitutional action has been engaged in by the state.”

In challenging such conduct as nevertheless constituting a

violation of art 1, § 2 of the Michigan Constitution,

plaintiff is not asserting a claim that is “parallel” to an

alleged violation of the CRA, but rather is seeking to

invalidate conduct that is allegedly prohibited by the

Michigan Constitution even though it does not violate the act.

Said plainly, the unsettling position of the dissent is that,

if the state actor (i.e., the city of Lansing in this case),

commits ongoing employment discrimination that violates the

state Equal Protection Clause, without also violating the CRA,

the courts, when petitioned by the employee, have no ability

to put an end to the unconstitutional discrimination. In an

era in which one of the noble contributions of the state and

federal courts has been to give citizens aid against

discrimination, this is a startling proposition.

Our dissenting colleague also indicates that “the

language of the [CRA], case law, and the legislative record

persuasively support the proposition that our Legislature

intended the [act] to be the sole remedy for state employment

discrimination claims in Michigan.” Post at 20. While the

accuracy of this assertion may well be debatable, it is also

irrelevant because it is axiomatic that the Legislature cannot

grant a license to state and local governmental actors to

violate the Michigan Constitution. In other words, the

Legislature cannot so “trump” the Michigan Constitution.

Indeed, the ultimate import of the dissent is that, at

least in the present context, a party cannot challenge

discriminatory acts by a state actor in connection with its

application or use of a statute as constituting

unconstitutional discrimination under the state Equal

Protection Clause—at least one cannot do so without also

attacking the validity of the underlying statute. This is

profoundly misbegotten because the power of judicial review

does not extend only to invalidating unconstitutional statutes

or other legislative enactments, but also to declaring other

governmental action invalid if it violates the state or

federal constitution.

That judicial review of governmental action for its

constitutionality extends to governmental action in connection

with applying a statute, without requiring a review of the

underlying statute itself, is reflected in both modern and

historic United States Supreme Court precedent. In Batson v

Kentucky, 476 US 79, 89; 106 S Ct 1712; 90 L Ed 2d 69 (1986),

the Court held that the federal Equal Protection Clause

forbids a prosecutor from using peremptory challenges to

remove potential jurors on the basis of their race. The

Batson Court did not address whether the underlying provisions

of the Kentucky Rules of Criminal Procedure that allow a

prosecutor to use peremptory challenges, see id. at 83, n 2,

were unconstitutional, or in any way suggest that they were.

In fact, the Court observed that it “has found a denial of

equal protection where the procedures implementing a neutral

statute operated to exclude persons from the venire on racial

grounds.” Id. at 88. Likewise, in the present case, the

courts may review whether acts undertaken by the city of

Lansing pursuant to its affirmative action plan, which was

approved by the Civil Rights Commission under § 210, are

violative of the state Equal Protection Clause without any

need for plaintiff to challenge § 210 itself as

unconstitutional.

Moreover, this is not new law. One need only refer to

the venerable, and celebrated, precedent of Yick Wo v Hopkins,

118 US 356; 6 S Ct 1064; 30 L Ed 220 (1886), to understand

this. Yick Wo involved two petitioners who were Chinese

citizens and who were imprisoned upon convictions for

violating a San Francisco ordinance that required a person to

obtain the consent of the local board of supervisors to run a

laundry business in a location other than a brick or stone

building. Such consent was denied the petitioners and “200

others who have also petitioned, all of whom happen to be

Chinese subjects, [while] 80 others, not Chinese subjects, are

permitted to carry on the same business under similar

conditions.” Id. at 374. In light of this obvious

discrimination, the Court considered the conclusion

irresistible that the distinction was due to “hostility to the

race and nationality to which the petitioners belong.” Id.

Accordingly, the Court held, without invalidating the San

Francisco ordinance, that the discrimination was violative of

the federal Equal Protection Clause and ordered the release of

the petitioners. Id. Of particular note in the present case,

the Court in Yick Wo stated:

Though the law itself be fair on its face, and

impartial in appearance, yet, if it is applied and

administered by public authority with an evil eye

and an unequal hand, so as practically to make

unjust and illegal discrimination between persons

in similar circumstances, material to their rights,

the denial of equal justice is still within the

prohibition of the constitution. [Id. at 373-374.]

Consistent with this recognition, it is axiomatic, and has

been for over a century, that the plaintiff here may challenge

the particular “application” of § 210 by defendant in

connection with defendant’s affirmative action policies

without asserting (or considering) whether § 210 is

constitutional.

We note that our decision in this case certainly does not

deny substantial practical effect to § 210 of the CRA.16

Indeed, we have held that plaintiff’s statutory claim under

the Civil Rights Act (and with it the possibility of

recovering money damages or other compensatory relief) is

barred by § 210. Further, plaintiff is able to bring a

constitutional claim under art 1, § 2 because the present

defendant, as a governmental entity, is directly bound to obey

the equal protection guarantees of this constitutional

provision. At least generally, that would not be the case

with regard to a private employer that uses an affirmative

action plan properly approved by the Civil Rights Commission

under § 210. See Woodland v Michigan Citizens Lobby, 423 Mich

188, 205; 378 NW2d 337 (1985) (“The Michigan Constitution’s

Declaration of Rights provisions have never been interpreted

We note that the present case does not involve a

challenge to the constitutionality of § 210.

as extending to purely private conduct; these provisions have

consistently been interpreted as limited to protection against

state action”); Harvey v Aetna Life Ins Co, 72 Mich App 285,

287; 252 NW2d 471 (1976) (holding that the Equal Protection

Clause applies “to actions of the state and not to private

conduct”). Obviously, nothing in this opinion would prevent

such a private employer from relying on § 210 as a bar to an

employment discrimination claim under the CRA.

Ultimately, the dissent would create a special rule for

claims of employment discrimination in violation of art 1, §

2 (or at least for such claims in the affirmative action

context) that would preclude a plaintiff from directly seeking

injunctive or declaratory relief against governmental action

as being violative of this constitutional provision. Rather,

such a plaintiff would, if the dissent’s view were to prevail,

either have to first establish a statutory violation or argue

that a state statute is unconstitutional in order to directly

challenge the alleged constitutional violation. We see no

appropriate basis for imposing such a heightened duty in this

context.

III

CONCLUSION

We conclude that § 210 bars statutory liability under the

CRA for employment discrimination where an employer acts in

accordance with an affirmative action plan properly approved

by the commission. The decisions of the trial court and the

Court of Appeals dismissing plaintiff's CRA claims are

affirmed.

The existence of the safe harbor does not abrogate rights

guaranteed under the Equal Protection Clause of the Michigan

Constitution. We hold that the trial court erred by

dismissing plaintiff's constitutional claim for injunctive

relief. Moreover, plaintiff has preserved this claim for

appellate review. Therefore, the Court of Appeals decision on

the constitutional claim is reversed and the case is remanded

to the trial court for consideration of plaintiff's prayer for

injunctive relief under art 1, § 2.

CORRIGAN , C.J., and CAVANAGH , WEAVER , TAYLOR , and YOUNG , JJ.,

concurred.

S T A T E O F M I C H I G A N

SUPREME COURT

DAVID SHARP,

Plaintiff-Appellant,

v No. 116171

CITY OF LANSING,

Defendant-Appellee.

MARKMAN, J. (concurring).

I concur in the result reached by the majority because I

agree that § 210 shields a public employer with an affirmative

action plan properly approved by the Civil Rights Commission

from liability under the Michigan Civil Rights Act, MCL

37.2101 et seq., but not necessarily from liability under the

Equal Protection Clause of the Michigan Constitution, Const

1963, art 1, § 2. Cf., however, Lewis v Michigan, 464 Mich

; NW2d (2001). Furthermore, I agree with the

analysis set forth by the majority in reaching this

conclusion.

However, I write separately to observe that, in order for

an affirmative action plan to be properly approved by the

Civil Rights Commission, it must comply fully with the

requirements set forth in § 210. Section 210's safe harbor

encompasses only affirmative action plans that are “adopt[ed]

and carr[ied] out . . . to eliminate present effects of past

discriminatory practices or assure equal opportunity . . . .”

MCL 37.2210. Therefore, where the commission fails to apply

these standards in its examination of an affirmative action

plan, the plan has not been properly approved by the

commission.1

Because plaintiff has not preserved the issue whether the

commission complied with the requirements of § 210 when it

1
In observing that “a complainant could challenge the

commission’s approval of an affirmative action plan, arguing

that the plan fails to conform to criteria required by the CRA

for approval,” post at 30, the dissent apparently does not

disagree with this proposition. However, the dissent asserts

that my “sweeping interpretation, if accurate, would render

the safe-harbor provision unworkable.” Post at 31, n 30. I

have difficulty understanding why my view is a “sweeping

interpretation,” when I am merely quoting verbatim the

statutory language, i.e., “[a] person subject to this article

may adopt and carry out a plan to eliminate present effects of

past discriminatory practices or assure equal opportunity .

. . .” MCL 37.2210. I agree with the dissent that the “safe

harbor does not protect only those plans that succeed in

eliminating present effects of past discrimination.” Id.

(emphasis added). Rather, the safe harbor protects all

properly approved plans that are “adopt[ed] and carr[ied] out

. . . to eliminate present effects of past discriminatory

practices or assure equal opportunity . . .”—but only such

plans.

approved defendant’s affirmative action plan, the majority

does not address this issue. This silence, however, should

not mislead some to believe that the commission possesses

plenary authority to shield from liability any affirmative

action plan. Rather, the commission is confined, not only by

the requirements of the constitution, but also by the

requirements of § 210 itself. To reiterate, under § 210, the

commission only has the authority to approve, and thus to

shield from liability under the Civil Rights Act, affirmative

action plans that are “adopt[ed] and carr[ied] out . . . to

eliminate present effects of past discriminatory practices or

assure equal opportunity . . . .”2 Id.

2
The significance of this unremarkable observation—that

the language of § 210 means what it says—arises largely in the

event that the constitutionality of § 210 is ultimately

sustained, in particular, if predicated upon the premise that

what would otherwise be unconstitutional, i.e., a hiring plan

allowing the government-as-employer to treat persons

differently on account of religion, race, color, or national

origin, is made constitutional by virtue of the standards set

forth for affording an affirmative action plan a “safe

harbor.” See City of Boerne v Flores, 521 US 507, 519; 117 S

Ct 2157; 138 L Ed 2d 624 (1997)(“Congress does not enforce a

constitutional right by changing what the right is. It has

been given the power ‘to enforce,’ not the power to determine

what constitutes a constitutional violation. Were it not so,

what Congress would be enforcing would no longer be, in any

meaningful sense, the ‘provisions of the Fourteenth

Amendment.’”); Marbury v Madison, 5 US (1 Cranch) 137, 177; 2

L Ed 60 (1803).

S T A T E O F M I C H I G A N

SUPREME COURT

DAVID SHARP,

Plaintiff-Appellant,

v No. 116171

CITY OF LANSING,

Defendant-Appellee.

___________________________________

KELLY, J. (dissenting).

I agree with the majority that the safe-harbor provision1

of the Michigan Civil Rights Act (CRA)2 bars statutory

liability under the CRA where an employer acts in conformity

with an approved affirmative action plan. I also agree that

the mere existence of the safe harbor does not abrogate rights

generally guaranteed under the Equal Protection Clause of the

Michigan Constitution.3 However, I cannot agree that acts of

an employer that are protected by the safe harbor are subject

1
MCL 37.2210.

2
MCL 37.2101 et seq.

3
Const 1963, art 1, § 2.

to an equal protection challenge pursued directly under art 1,

§ 2. Accordingly, because I believe that our Legislature

intended the CRA to provide the exclusive remedy for public

employment discrimination claims within the act's purview, I

Our constitution protects against discrimination at the

hands of state actors by declaring that "[n]o person shall be

denied the equal protection of the laws . . . . The

legislature shall implement this section by appropriate

legislation." Const 1963, art 1, § 2 (emphasis added). We are

bound to interpret these words in a manner that gives

sufficient effect to the "law the people have made." People

v Reichenbach, 459 Mich 109, 119; 587 NW2d 1 (1998). The

starting point for ascertaining the meaning of words used in

the constitution is to interpret them according to their plain

and ordinary meaning as understood by the people who adopted

them. Bond v Ann Arbor School Dist, 383 Mich 693, 699; 178

NW2d 484 (1970).

I. THE CONSTITUTIONAL CONVENTION OF 1961

The reference to equal protection "of the laws," found in

both the state and federal constitutions, suggests a safeguard

against the formation and execution of laws or legislative

classification schemes that operate unequally. It is well

settled that the equal protection guarantee is not a source of

substantive rights or liberties; rather, it is a measure of a

constitution's tolerance of government classification schemes.

Doe v Dep't of Social Services, 439 Mich 650, 661; 487 NW2d

166 (1992), citing San Antonio Ind School Dist v Rodriguez,

411 US 1, 24; 93 S Ct 1278; 36 L Ed 2d 16 (1973).

It seems likely from the convention record that delegates

at the Michigan Constitutional Convention of 1961 had this

principle firmly in mind as they formed art 1, § 2. Delegates

from both political parties viewed the proposed equal

protection clause as a general statement of Michigan's

policies and goals with respect to public discrimination.

Drafters of art 1, § 2, envisioned legislators, not

constitutional delegates, as the authorities vested with the

power to implement those goals. James K. Pollock, Republican

chairman of the Committee on Rights, Suffrage, and Elections

for the 1961 convention, observed the following as he

presented his committee's proposed equal protection clause to

the delegation:

We felt that, in the event we wanted to have a

specific nondiscrimination clause, it would be

better to state as a general policy of the

constitution that there shall be no discrimination

based on race, religion or national origin in the

enjoyment of political or civil rights, and that

the legislature should have the power to enforce

this by appropriate legislation. [2 Official Record

Constitutional Convention 1961, pp 741-742

(emphasis added).]

To be sure, Delegate Harold Norris, a Democrat, expressed

agreement with this basic principle of legislative delegation

despite his disagreement with other aspects of the

recommendation tendered by Pollock's committee. Professor

Norris described the constitution as "a statement of goals and

not a detailing of means." Id. at 742. Don Binkowski,

another Democratic delegate on the Pollock committee,

characterized the constitution as a guiding document that

"must point the way" by providing a "strong, resolute and bold

restatement of the principles on which this country has been

founded." Id. at 746. He concluded his remarks to the

delegation by observing "[i]t is up to you to include in the

new constitution the statement of an individual's rights to

equal protection of the law . . . and to provide for

legislative implementation of these principles." Id.4

II. TITLE VII

We have long recognized that federal courts'

interpretations of the law under circumstances analogous to

those before us on review are highly persuasive although not

4
See also Cramton, The powers of the Michigan Civil

Rights Commission, 63 Mich L R 5, 13 (1964) ("[Under art 1, §

2,] the legislature is empowered to create and define the

'civil rights' that it feels are deserving of protection. The

nature and scope of these rights, and the remedies available

for their violation, are left to legislative judgment.");

Smith v Dep't of Public Health, 428 Mich 540, 632; 410 NW2d

749 (1987)(Brickley, J.).

necessarily binding on us. Continental Motors v Muskegon Twp,

365 Mich 191, 194; 112 NW2d 429 (1961). See, e.g., State Bd

of Ed v Houghton Schs, 430 Mich 658; 425 NW2d 80 (1988).

There is no question that legislative bodies generally

possess the power to enact detailed, comprehensive remedial

legislation that preempts parallel claims brought directly

under a constitution. The United States Supreme Court

expressly recognized this fact in Smith v Robinson5, where it

observed:

In light of the comprehensive nature of the

procedures and guarantees set out in the [Education

of the Handicapped Act] and Congress' express

efforts to place on local and state educational

agencies the primary responsibility for developing

a plan to accommodate the needs of each individual

handicapped child, we find it difficult to believe

that Congress also meant to leave undisturbed the

ability of a handicapped child to go directly to

court with an equal protection claim to a free

appropriate public education. Not only would such a

result render superfluous most of the detailed

procedural protections outlined in the statute,

but, more important, it would also run counter to

Congress' view that the needs of handicapped

children are best accommodated by having the

parents and the local education agency work

together to formulate an individualized plan for

each handicapped child's education. No federal

district court presented with a constitutional

claim to a public education can duplicate that

process.

The Smith Court held that the Education of the

Handicapped Act (EA) provided the exclusive avenue through

5
468 US 992, 1011-1012; 104 S Ct 3457; 82 L Ed 2d 746

(1984).

which the plaintiffs could assert an equal protection claim

for publicly funded special education.6 Justice Blackmun

recognized the possibility that broadly drafted legislation

could preempt an entire field of substantive law. The Supreme

Court further acknowledged that a comprehensive remedial act,

such as the EA, will rightfully preclude the availability of

parallel constitutional claims because such duplication would

undermine the thoroughness of the statutory scheme.

I find highly persuasive here the reasoning employed by

the United States Supreme Court in Smith. It is the same

rationale that backed the Court's earlier holdings that

6
The statute was later amended by Congress to allow

statutory and constitutional claims in tandem. Nevertheless,

the reasoning of Smith still stands for the proposition that

a comprehensive remedial scheme will preclude parallel

constitutional claims. See Zombro v Baltimore Police Dep't,

868 F2d 1364, 1368 (CA 4, 1989)(using Smith for the

proposition that "[t]he Supreme Court has similarly

demonstrated a disinclination to entertain § 1983 actions in

which plaintiffs have bypassed a comprehensive statutory

remedy in favor of a § 1983 claim predicated on an alleged

constitutional violation"); Mattoon v City of Pittsfield, 980

F2d 1, 6 (CA 1, 1992)(relying on Smith for the conclusion that

"even assuming a 'fundamental constitutional right' to safe

public drinking water, it would not alter the present

analysis. Comprehensive federal statutory schemes, such as the

[Safe Drinking Water Act], preclude rights of action under §

1983 for alleged deprivations of constitutional rights in the

field occupied by the federal statutory scheme"); Pfeiffer by

Pfeiffer v Marion Center Area Sch Dist, 917 F2d 779, 789 (CA

3, 1990)(holding that Smith is part of a consistent

application by the Supreme Court of the doctrine that a

comprehensive enforcement scheme will preclude parallel

constitutional claims).

Congress intended title VII7 to provide the exclusive judicial

remedy for discrimination claims in the federal employment

sector. See Brown v General Services Administration;8 Great

American Fed S & L Ass'n v Novotny9; Davis v Passman.10

Brown involved an African-American federal government

employee who claimed that the General Services Administration

(GSA) had racially discriminated against him by failing to

promote him to a higher grade. He filed a complaint with the

GSA, then appealed to the federal Civil Service Commission,

both of which ruled against him. He then appealed from the

commission decision to a federal district court. The suit

alleged jurisdiction under title VII as amended by the Equal

Employment Opportunity Act of 1972,11 the general

federal-question statute,12 the declaratory judgment act13 and

the Civil Rights Act of 1866, as amended.14 The district court

7
42 USC 2000e et seq. (This was the Civil Rights Act of

1964. References to § 717 and § 717a are to that act. Many

courts refer to the section numbers from that act.)

8
425 US 820, 835; 96 S Ct 1961; 48 L Ed 2d 402 (1976).

9
442 US 366; 99 S Ct 2345; 60 L Ed 2d 957 (1979).

10
442 US 228; 99 S Ct 2264; 60 L Ed 2d 846 (1979).

11
42 USC 2000e et seq.

12
28 USC 1331.

13
28 USC 2201-2202.

14
42 USC 1981.

dismissed the entire action for failure to conform to the

procedural requirements of § 717 of the Civil Rights Act of

1964.15 The Court of Appeals affirmed. Brown v General

Services Administration, 507 F2d 1300 (CA 2, 1974).

In deciding the case, the Supreme Court engaged in a

detailed review of the legislative history underlying the

enactment of the 1972 amendments to title VII. It noted that

comprehensive administrative, judicial and remedial schemes

have been included there. It viewed the enactment of § 717 as

clear evidence of what Congress intended when it passed the

1972 title VII amendments. It quoted extensively from

committee reports and floor debates to ascertain the will of

Congress, before concluding:

This unambiguous congressional perception

seems to indicate that the congressional intent in

1972 was to create an exclusive, pre-emptive

administrative and judicial scheme for the redress

of federal employment discrimination. [Brown, 425

US 828-829.]

Brown denounced the idea that circuitous pleading might

enable a party to avoid the preemptive scheme set forth in

title VII. It observed that an attempt to circumvent the

command of title VII would defeat Congress' purpose of

amending the statute in 1972.

15
42 USC 2000e-16 (title VII), as amended in 1972.

The crucial administrative role that each

agency together with the Civil Service Commission

was given by Congress in the eradication of

employment discrimination would be eliminated "by

the simple expedient of putting a different label

on (the) pleadings." It would require the

suspension of disbelief to ascribe to Congress the

design to allow its careful and thorough remedial

scheme to be circumvented by artful pleading.

[Brown, 425 US 833, quoting Preiser v Rodriguez,

411 US 475, 489-490; 93 S Ct 1827; 36 L Ed 2d 439

(1973).]

Ultimately, the Supreme Court concluded that the plaintiff's

other statutory claims were preempted by title VII. It

affirmed the lower courts and held:

[T]he established principle [found in Preiser]

leads unerringly to the conclusion that § 717 of

the Civil Rights Act of 1964, as amended, provides

the exclusive judicial remedy for claims of

discrimination in federal employment. [Brown, 425

US 835.]

Though the remedies sought in Brown were all statutory,

its holding was broader and unqualified. In Novotny, supra,

the Supreme Court made clear that Brown's reasoning extended

to encompass the notion that title VII preempts

constitutionally based claims as well. Novotny brought an

equal protection claim through the vehicle of § 1985(3),16 and

an action under § 704(a),17 the retaliatory discharge provision

of title VII. The Novotny Court relied on the principles set

forth in Brown to hold that title VII foreclosed plaintiff's

16
42 USC 1985(3).

17
42 USC 2000e-3(a).

equal protection claim. It recognized that the availability

of parallel constitutional relief, under these circumstances,

would dramatically undercut the effectiveness of title VII.

Comparing Novotny to Brown, the Supreme Court stated:

Here, the case is even more compelling. In

Brown, the Court concluded that § 717 displaced

other causes of action arguably available to assert

substantive rights similar to those granted by §

717. Section 1985(3), by contrast, creates no

rights. It is a purely remedial statute, providing

a civil cause of action when some otherwise defined

federal right--to equal protection of the laws or

-
equal privileges and immunities under the laws--is

-
breached by a conspiracy in the manner defined by

the section. Thus, we are not faced in this case

with a question of implied repeal. The right

Novotny claims under § 704(a) did not even arguably

exist before the passage of Title VII. The only

question here, therefore, is whether the rights

created by Title VII may be asserted within the

remedial framework of § 1985(3). [Novotny, supra at

376.]

The Supreme Court answered this question in the negative.

Applying Brown's holding broadly,18 it observed that

18
The majority opinion relies on Davis, supra for the

proposition that a constitutional claim can proceed where a

plaintiff is not covered by title VII. This is accurate.

However, in analogizing the specific facts of Davis to this

case, the majority overlooks the distinction that the claim at

issue in Davis did not fall under the umbrella of title VII.

The plaintiff there, by virtue of her status as a

congressional employee, was not eligible for coverage under

title VII. Thus, her ability to pursue a constitutional remedy

would not undercut title VII's remedial scheme. Indeed, the

Davis Court reaffirmed Brown's exclusivity principle.

By contrast, this case involves an individual, Mr. Sharp,

who is protected by the applicable legislation, the CRA. He is

not barred by having a status that renders him outside the

(continued...)

restricting the plaintiff to an action under title VII was the

only way to preserve the integrity of title VII's remedial

scheme. Notwithstanding Novotny's broad constitutional claims,

the Supreme Court continued:

If a violation of Title VII could be asserted

through § 1985(3) [in the form of a constitutional

claim], a complainant could avoid most if not all

of these detailed and specific provisions of the

law. . . . Perhaps most importantly, the complaint

could completely bypass the administrative process,

which plays such a crucial role in the scheme

established by Congress in Title VII. [Id. at 375
376.]

The majority responds that Novotny "did not involve any

constitutional claim[s]" and therefore does not aid us in

determining whether a statute can ever preempt a claim brought

directly under the constitution.19 My colleagues acknowledge

that Novotny brought a claim under § 1985(3), but ignore the

underlying substantive posture of any action pursued through

the vehicle of § 1985(3). Although § 1985 is certainly a

statute, it "creates no rights," the Novotny Court observes,

and is thus activated only "when some otherwise defined

federal right--to equal protection of the laws or equal

18
(...continued)

scope of its contemplation. His inability to state a

successful claim under the CRA does not place him in the same

position as the plaintiff in Davis. Factually speaking, he

more closely resembles the plaintiffs in Brown and Novotny,

where the Supreme Court restricted access to alternative

parallel remedies. Davis, supra at 247, n 26.

19
Slip op at 13.

privileges and immunities under the laws--is breached by a

conspiracy in the manner defined by the section." Novotny,

supra at 376. [Emphasis added.]

Hence, § 1985 is a remedial vehicle to pursue the

vindication of constitutionally guaranteed rights. The

Novotny Court was unequivocal when it declared that a

violation of rights contemplated under title VII could not be

asserted through a § 1985(3) claim. Id. at 375-376. It

opined that pursuit of such a remedy would enable a

complainant to "avoid most if not all of [the] detailed and

specific provisions of the law." Id. The majority is

inaccurate in suggesting that using § 1985(3) to vindicate a

violation of a constitutional right is substantively different

than suing directly under the constitution.

The majority uses its flawed analysis of Novotny as a

springboard from which to leap to the general proposition that

a legislative act can never "trump" the constitution. Nowhere

in Novotny can one locate the principle that the majority

attributes to it. Indeed, when the Supreme Court has

addressed the subject of statutory preemption of

constitutional remedies, it has reached the opposite

conclusion.20 It cannot be accurately said that Novotny lends

20
See Smith v Robinson, n 6 supra, which lists federal

cases that apply Smith in finding a statutory preemption of

(continued...)

credence to the conclusion that a constitutional claim can

never be preempted by statute.

The majority is unpersuasive in its attempt to

distinguish Smith v Robinson, the Supreme Court case that

directly addresses the principle of statutory preemption of

parallel constitutional claims.21 As discussed above, the

Smith Court held that a complainant's equal protection claim

was preempted by a statute, the EA. The majority reads Smith

to mean only that "if a statutory remedy is available for an

alleged constitutional violation, a party may be required to

seek to remedy that alleged constitutional violation through

procedures provided by the statute." Slip op at 18-19. It

then finds that Miss Smith's claims were covered by the EA.

and that Smith is inapposite here.

The flaw in its logic lies in its premise. In Smith, the

principle claim involved the right of a handicapped child to

a free public education. The claim that went to the United

States Supreme Court was for attorney fees. Under the facts

in Smith, the plaintiff was covered by the act and was unable

20
(...continued)

constitutional claims.

21
The majority chooses not to "burden the readers of this

opinion with a further discussion of case law from the lower

federal courts," slip op at 17, but opts to ignore the

considerable line of federal cases that have applied Smith to

find statutory preemption of constitutional claims. See n 6.

to obtain attorney fees under an equal protection claim.

Under the facts in Sharp, plaintiff was covered by the act and

sought relief for various equal protection claims. Hence, in

each case a statutory remedy was available to and sought by

the plaintiff and the plaintiff sought relief, as well, for

the same alleged wrongs through a direct constitutional due

process claim. Consequently, Smith is pertinent and supports

my conclusion that a comprehensive legislative scheme can

preempt certain constitutional claims where the Legislature is

authorized and intends to preempt an entire field of law.

In attempting to distinguish the holding in Smith from

the one I propose today, the majority points to a footnote in

Smith. In it, the United States Supreme Court remarks that, if

there were no statutory remedies for constitutional

violations,

the power of federal courts to grant the relief

necessary to protect against constitutional

deprivations or to remedy the wrong done is

presumed to be available in cases within their

jurisdiction. [Id. at 1012, n 15, quoted ante at

19.]

This observation has no bearing on what the Court in Smith

actually did decide: when the Legislature implements a

comprehensive remedial scheme to rectify certain

constitutional equal protection rights, the scheme will

preempt parallel constitutional claims.

The footnote is dictum because the Smith Court found that

Congress had implemented such a comprehensive remedial scheme

in the EA. Examined closely, the footnote stands only for the

proposition that, absent a statutory scheme to remedy equal

protection violations, courts can grant appropriate relief

directly under the constitution.

This goes precisely to my point. Indeed, if there were

no title VII, or no EA, there certainly would exist a role for

the courts in remedying the constitutional deprivations those

statutes address. The courts, within jurisdictional

limitations, would fill the void in legislation and right

wrongs through claims brought directly under the constitution.

Yet the fact that Congress did enact such legislation is

thought to manifest dissatisfaction with existing remedies the

courts were providing. It is said to evidence a desire,

instead, to replace unsuccessful solutions with a

comprehensive scheme that preempts the field, including the

very preexistent constitutional claims that warranted the

legislation. Hence, the holding of Smith is that the EA's

legislative history leads to the conclusion that the act "is

the exclusive avenue through which the child and his parent or

guardian can pursue their claim." Id. at 1013.

Therefore, despite the majority's unsubstantiated

assertion that a statute cannot "trump" the constitution,

federal courts have long acknowledged the opposite principle.22

Consistent with the logic working in Smith, these courts have

applied Brown and Novotny to hold that title VII preempts

constitutional equal protection claims that fall within the

jurisdiction of the statute23. See, e.g., Ethnic Employees of

the Library of Congress v Boorstin, 243 US App DC 186, 196;

751 F2d 1405 (1985)(observing that "[a]llowing federal

employees to recast their title VII claims as constitutional

claims would clearly threaten those same policies"); Day v

Wayne Co Bd of Auditors, 749 F2d 1199, 1204-1205 (CA 6, 1984);

Kizas v Webster, 227 US App DC 327, 345; 707 F2d 524 (1983)(a

Fifth Amendment claim based upon race and sex discrimination

22
As stated in n 6, numerous federal cases have cited

Smith as authority for making the type of ruling that the

majority claims cannot be made.

23
Some federal circuits have held that title VII does not

necessarily provide the only remedy available for employment

discrimination claims. See, e.g., Beardsley v Webb, 30 F3d

524, 527 (CA 4, 1994). However, many of these decisions dealt

with claims arising from facts beyond the contemplation of

title VII, such that recognizing them would not encroach upon

the area defined by title VII.

Even those circuits that have interpreted Brown narrowly

have not, as the majority suggests, done so on the basis of

any distinction between legal and equitable remedies. See,

e.g., Annis v Westchester Co, 36 F3d 251 (CA 2, 1994); Notari

v Denver Water Dep't, 971 F2d 585 (CA 10, 1992). Instead, most

have so held on the basis that they disagree about the scope

of coverage that Congress intended. The majority offers no

case holding that it is beyond the inherent power of any

legislative body to enact a statutory scheme that preempts

parallel constitutional claims.

was barred by title VII); Purtill v Harris, 658 F2d 134, 137

(CA 3, 1981)(relying on Brown to hold that the Age

Discrimination in Employment Act, modeled after title VII,

preempts judicial remedies based directly on the constitution

for claims of age discrimination in federal employment);

Lawrence v Staats, 214 US App DC 438, 439-441; 665 F2d 1256

(1981) (a Fifth Amendment claim based on race discrimination

would be barred if § 717 applied); Davis v Califano, 198 US

App DC 224, 225, n 1; 613 F2d 957 (1979); Hofer v Campbell,

189 US App DC 197, 200; 581 F2d 975 (1978)(a Fifth Amendment

claim based on national origin discrimination was barred by

title VII); Richardson v Wiley, 186 US App DC 309, 310; 569

F2d 140 (1977); Gissen v Tackman, 537 F2d 784, 786 (CA 3,

1976); Lutes v Goldin, 62 F Supp 2d 118 (D DC, 1999); Brug v

Nat'l Coalition for the Homeless, 45 F Supp 2d 33, 42 (D DC,

1999); Clement v Motta, 820 F Supp 1035 (WD Mich, 1991).

In Kizas, the United States Court of Appeals for the

District of Columbia rejected a reverse discrimination claim

brought by white clerical and support employees of the Federal

Bureau of Investigation. The complainants alleged that

including affirmative action principles in the qualifying

process for special agents violated their Fifth Amendment

constitutional right to equal protection as well as their

statutory title VII rights. The court concluded that the

plaintiffs' constitutional claim was "unavoidably foreclosed

by [the] precedent" of Brown. Kizas, at 345. Their sole

remedy was under title VII. The Kizas Court observed:

The Kizas complainants suggest, in repeated

but less than lucid argument, that the

Constitution's equal protection principle entails a

stricter restraint on classification by race or sex

than does Title VII and would shelter them against

"reverse" discrimination that the statute may

permit. We need not linger over this suggestion.

. . .

They may not circumvent the "careful and

thorough remedial scheme" Congress ordered for

them; their access to court is determined by that

effective, albeit demanding statute. [Kizas, at

345-346.]

III. THE CRA

In the instant case, Sharp is covered by the protections

afforded through the CRA--a legislative enactment every bit as

detailed and comprehensive as its federal counterpart, title

VII.

Section 717 contains a general prohibition of federal

employment "discrimination based on race, color, religion,

sex, or national origin." § 717(a). Michigan's CRA contains

a proscription at MCL 37.2202(1), which provides in part:

An employer shall not . . . :

(a) Fail or refuse to hire, or recruit, or

discharge, or otherwise discriminate against an

individual with respect to employment,

compensation, or a term, condition, or privilege of

employment, because of religion, race, color,

national origin, age, sex, height, weight, or

marital status.

Section 717 also provides the Civil Service Commission

with the power and authority to enforce the civil rights

requirements of title VII. Michigan vests its own Civil Rights

Commission with similar enforcement powers. Article 6 of the

CRA delegates powers and duties to the commission, MCL

37.2601, and the Civil Rights Department, MCL 37.2602.

Section 602(c) establishes in the Department the authority to

[r]eceive, initiate, investigate, conciliate,

adjust, dispose of, issue charges, and hold

hearings on complaints alleging a violation of this

act, and approve or disapprove plans to correct

past discriminatory practices which have caused or

resulted in a denial of equal opportunity with

respect to groups or persons protected by this act.

In addition, § 717(c) outlines a detailed administrative

grievance procedure that a complainant must follow before

filing suit in federal district court. It gives an aggrieved

federal employee thirty days from a final order of the Civil

Service Commission to register an appeal in a district court.

Michigan's CRA provides an almost identical structure.

See MCL 37.2605-37.2606. Section 605 requires the state

commission to issue written findings of fact and conclusions

of law to support a conclusion that an employer has engaged in

discriminatory practices. The section also details the

various remedies available to the commission following a

finding of discrimination in violation of the CRA. Finally,

§ 606 provides the complainant with the right to appeal from

any final decision of the commission to a circuit court within

thirty days.

The parallels that exist between title VII and the CRA

are undeniable. Similarly, the concerns apparent in Brown and

Novotny about parallel claims that threaten to dilute the

comprehensive scheme carefully crafted by Congress also exist

here. Michigan's CRA provides the kind of detailed scheme

that the United States Supreme Court recognizes as providing

the sole remedy for claims arising under its coverage

umbrella.

IV. LEGISLATIVE INTENT

Moreover, the language of the act, case law, and the

legislative record persuasively support the proposition that

our Legislature intended the CRA be the sole remedy for state

employment discrimination claims in Michigan. The primary

goal of statutory interpretation is to ascertain and give

effect to the intent of the Legislature. Frankenmuth Mut Ins

v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998).

Like title VII, the CRA does not contain an express

description of its position in the constellation of

antidiscrimination law. Thus, it is appropriate to look for

legislative intent in other, less obvious places. Brown,

supra at 825. "Where the mind labours to discover the design

of the legislature, it seizes everything from which aid can be

derived . . . ." United States v Fisher, 6 US (2 Cranch) 358,

386 (1805).

To begin, the language of the CRA itself manifests an

apparent intent to establish a broad, comprehensive scheme

that "defines" and remedies violations of civil rights. The

preamble to the CRA begins: "An act to define civil rights

. . . ." 1976 PA 453 (emphasis added). It continues by

describing its own purpose as "to prohibit discriminatory

practices" and "to provide remedies and penalties . . . ." Id.

Thus, on its face, the CRA shows that the Legislature

envisioned it as comprehensive and detailed.

The legislative history, as gathered from House and

Senate bill analyses generated before the act's passage in

1976, bears out this suggestion. The legislative documents

explain that the act was intended to address the problems

caused by the splintered remedial systems that existed before

1976 in the area of civil rights. The report accompanying

House Bill 4055 described the bill as a consolidation of these

concepts into a single law that would

place legal and procedural recourse for all civil

rights discrimination within the Department of

Civil Rights, enabling the Department to provide

more effective remedies for those who have been

victimized by unlawful discrimination. [Emphasis

added.]

The bill analysis further describes the bill as a means

of "[outlining] more specifically the legal action a person

could take if that person feels that he or she has been

unfairly discriminated against." (Emphasis added.) The

"Argument For:" section of the bill analysis includes the

following two statements of purpose, both bearing particular

relevance to this case:

The bill would provide a uniform statutory

framework to deal with the many different forms of

discrimination. [Emphasis added.]

* * *

The bill would include the concept of

discrimination enunciated by the U.S. Supreme Court

with respect to equal protection under the

Constitution.

Hence, the CRA, like its federal counterpart, was

intended as a vehicle to define and consolidate the various

remedial measures accorded by other statutes. Moreover, it

was envisioned as incorporating the "concept of

discrimination" inherent in the Equal Protection Clause.24

Courts have interpreted the CRA as bearing a singular

objective in harmony with the Michigan Constitution and as an

instrument to interpret and enforce its provisions. See, e.g.,

Thompson v Bd of Ed Romeo Comm Schs, 519 F Supp 1373, 1380 (WD

Mich, 1981) (interpreting Michigan law to conclude that the

24
The Equal Protection Clause of Michigan's Constitution

is virtually identical to its counterpart contained in the

Fourteenth Amendment of the United States Constitution. They

are interpreted as embodiments of the same concepts. See,

e.g., Moore v Spangler, 401 Mich 360, 370; 258 NW2d 34 (1977);

Naudzius v Lahr, 253 Mich 216, 222; 234 NW 581 (1931).

"general object [of the CRA] is to define and protect certain

civil rights of individuals under the jurisdiction of Michigan

law"); Neal v Dep't of Corrections, 232 Mich App 730, 734; 592

NW2d 370 (1998)("[t]he act is remedial and must be liberally

construed to effectuate its ends").

I find that the intent that appears to underlie the CRA

supports the proposition that the Legislature meant it to

provide the sole remedy for public employment discrimination

claims in Michigan. Moreover, the United States Supreme

Court's decisive interpretation in Brown, Novotny, and their

progeny of the breadth of § 717 of title VII renders

convincing guidance in determining the breadth of Michigan's

CRA. Just as title VII provides the sole remedy for equal

protection claims involving federal governmental employment

discrimination, the CRA provides the sole remedy for Michigan

governmental employment discrimination.

V. ANALOGY

A Michigan complainant like Mr. Sharp is in the same

position as the complainants in Kizas. He may not circumvent

the "careful and thorough remedial scheme" that the

Legislature, in response to the direct call of the people, has

ordered for him. Kizas, at 346. His access to court "is

determined by that effective, albeit demanding, statute." Id.

He may not pursue a state constitutional equal protection

claim that falls within the purview of the CRA.25 Allowing

that a parallel and circuitous claim would dilute the CRA's

purpose, just as allowing Novotny to seek constitutional

redress would have diluted the carefully crafted scheme of

title VII.

In addition to the persuasiveness of federal analogous

law is the sheer counter intuitiveness of allowing an equal

protection claim to survive in this case. If a complainant

were entitled to relief under the state Equal Protection

Clause as an alternative to the CRA, the safe harbor provision

25
The majority intimates that Lewis v Michigan, 464 Mich

___; ___ NW2d ___ (2001), issued with this decision, holds

that a complainant has a direct claim under the constitution

for equitable relief from an approved affirmative action plan.

Slip op at 15, n 13. The issue in Lewis is whether this Court

should recognize the existence of a claim for monetary damages

directly under the Equal Protection Clause. It does not

address whether a party can seek equitable relief under the

auspices of the constitution.

The majority miscasts my position in this dissent as one

that leaves certain Michigan citizens entirely without civil

rights or constitutional protections. Also, it cites Bolling

v Sharpe, 347 US 497; 74 S Ct 693; 98 L Ed 884 (1954) as

assuming that Congress would amend title VII eighteen years

later to retain the availability of equitable relief directly

under the constitution. The use of a 1954 Supreme Court case

to predict the effects of a legislative act in 1972 evidences

a remarkable twist of the laws of time and space. Moreover,

Bolling is inapposite because it describes federal employment

discrimination remedies that existed before 1972. The 1972

amendments of title VII were aimed at altering the legal

foundation for pursuing federal employment discrimination

claims in the public sector. Brown, Novotny, Smith, and each

case upon which I rely, concern the state of employment

discrimination law after 1972.

would be dramatically weakened. If the safe harbor were

destroyed, the CRA would fail in one of its essential

purposes: to provide for affirmative action in order to

alleviate past instances of discrimination.

In turn, the delegates to the 1961 Constitutional

Convention would have failed in their attempt to draft art 1,

§ 2 as a set of policy goals "pointing the way" for the

Legislature. Such a result is inconsistent with the expressed

policy goals of the constitutional framers and the intent of

the Legislature in enacting the CRA. In addition, it ignores

the persuasive direction charted by the United States Supreme

Court in Brown,26 Novotny, and their respective progeny.

26
To counter the unqualified, direct holding of Brown, the

majority relies on a misreading of it. Brown does not state

that the 1972 amendments to title VII left intact the

availability of injunctive relief for federal employment

discrimination directly under the Fifth Amendment. There is

little question that the Brown Court regarded earlier remedies

for employment discrimination in the public sector as

impotent. See Brown, supra at 826 ("If administrative remedies

were ineffective, judicial relief from federal employment

discrimination was even more problematic before 1972.")

Injunctive relief, like the balance of remedies available

before 1972, effected nothing to merit celebration among

opponents of workplace discrimination.

According to the Brown Court, that was the weakness that

Congress intended to address through the Equal Employment

Opportunity Act of 1972. Its aim was to preempt the field by

providing a comprehensive, exclusive slate of remedies,

displacing existing legal and equitable claims. I find that

our Legislature intended the CRA to have similar preemptive

force.

VI. SHARP 'S INADEQUATELY PLEADED CASE

A more detailed analysis of whether plaintiff has pleaded

and preserved any other direct constitutional claim is

appropriate here.

MCR 2.111 provides:

(B) Statement of Claim. A complaint, counter
claim, cross-claim, or third-party complaint must

contain the following:

(1) A statement of the facts, without

repetition, on which the pleader relies in stating

the cause of action, with the specific allegations

necessary reasonably to inform the adverse party of

the nature of the claims the adverse party is

called on to defend[.]

In his second amended complaint, plaintiff pleaded as

follows:

7. Notwithstanding rejection of Plaintiff's

application for employment as a fire fighter in the

Lansing fire department, Defendant city of Lansing

and the Lansing fire department have continued to

accept applications for employment and have

continued to hire persons as fire fighters who are

not certified fire fighters and not as well

qualified as Plaintiff.

***

10. Defendant city of Lansing and its fire

department have limited, segregated or classified

plaintiff in a way that tends to deprive him of

employment opportunities in the public fire

department of the city of Lansing, or otherwise

adversely affects his status as an applicant

because of his race and sex.

***

13. Defendant city of Lansing has adopted a

policy of discriminating in employment on the basis

of race, sex and national origin by means of

treating white male applicants for employment less

favorably than applicants who are not white males.

14. Defendant city of Lansing has applied its

policy of discriminating in employment on the basis

of race, sex and national origin to the Lansing

fire department.

15. Defendant city of Lansing and its fire

department have manipulated facially neutral

testing procedures to discriminate on the basis of

race, sex and national origin by means of giving

second, third and fourth chances to members of

favored races, sex or national origin.

***

18. Defendant city of Lansing obtained

approval for a voluntary affirmative action plan in

1987 but has abandoned the approved plan.

19. Defendant's affirmative action plan lacks

any rational connection with a legitimate

governmental objective for the reason that ten

years of enforcement of the said voluntary

affirmative action plan has had no effect on the

distribution of women and minorities in the non
supervisory ranks of the Lansing fire department.

20. Defendant city of Lansing adopted both its

approved voluntary affirmative action plan, and its

unapproved voluntary affirmative action plan with

intent to discriminate on the basis of race and

sex.

21. The only effect of ten years of voluntary

affirmative action in the Lansing fire department

has been to deprive white males of employment

opportunities in the Lansing fire department.

22. Plaintiff has sustained damages in the

premises in excess of $10,000.00, in violation of

the form of the Elliott Larsen Civil Rights Act and

Const 1963, art 1, § 2.

Wherefore, Plaintiff prays that this Honorable

Court enter its order enjoining Defendant city of

Lansing from discriminating in employment on the

basis of race, sex or national origin . . . .

Plaintiff's pleadings acknowledge the apparent

constitutionality of an affirmative action plan that has been

approved by the commission and enacted in conformity with

§ 210. There is no dispute that the city's plan satisfies both

criteria. In his answer to defendant's affirmative defenses,

plaintiff stated:

Plaintiff affirmatively avers that an

affirmative action plan may be adopted and carried

out "if the plan is filed with the commission under

rules of the commission and the commission approves

the plan."

As the majority concedes, plaintiff is barred from

pursuing a claim under the CRA. By extension, then, he has

failed to state a cognizable claim under the Equal Protection

Clause of the Michigan Constitution. Simply stated, he has

nothing left to pursue on remand.

The majority misrepresents my position as asserting that

the only way to challenge a state actor's implementation of a

law is to challenge the law itself. It interprets this

dissent as in conflict with Batson v Kentucky, 476 US 79; 106

S Ct 1712; 90 L Ed 2d 69 (1986),27 and Yick Wo v Hopkins, 118

27
Batson held that the federal Equal Protection Clause

forbids a prosecutor from using peremptory challenges to

remove potential jurors because of race.

US 356; 6 S Ct 1064; 30 L Ed 220 (1886).28 In so doing, it

overlooks a crucial fact that distinguishes Batson and Yick Wo

from the instant case: the relationship of the underlying

"law" to the conduct alleged in this case is distinguishable

from the relationship of those two variables as they operated

in Batson and Yick Wo. The key difference is that § 210

expressly allows the conduct in which defendant engaged. It

permits racial discrimination within certain parameters. The

city of Lansing governed itself within those constitutional

parameters. Though he tried, Mr. Sharp could not establish a

factual issue to the contrary.

By contrast, the underlying law in Batson did not

expressly allow the conduct in which the Kentucky prosecutor

engaged. The "law" in Batson did not permit prosecutors to

exercise peremptory challenges on the basis of race. It did

not even address race. Thus, the unconstitutional

implementation at work in Batson was found in the "deviation"

from what the underlying constitutional law would allow. That

"law" had been applied to Batson in a way that denied him

equal treatment under it. I apply the same standard to Mr.

Sharp's claim, but reach a different result because the law in

28
The Yick Wo Court found an equal protection violation

where an otherwise neutral San Francisco city ordinance was

applied unequally to citizens on the basis of race.

his case operated exactly as legislators intended it should.29

There was no deviation from the scheme intended by the

Michigan Legislature.

However, despite Mr. Sharp's failure to articulate a

cognizable claim, another in his position would not

necessarily be without a remedy. A complainant could

challenge the constitutionality of the CRA generally, or of

the safe harbor, testing whether either constitutes a

constitutional implementation of art 1, § 2. Sharp chose not

to do so. Alternatively, a complainant could challenge the

commission's approval of an affirmative action plan, arguing

that the plan fails to conform to criteria required by the CRA

for approval.30 Again, Sharp chose not to pursue such a claim.

29
Similarly, in Yick Wo, the law at issue did not

expressly authorize discrimination on the basis of race. It

established an approval process for operating certain types of

laundry businesses in San Francisco. The process was used to

deny business opportunities to Chinese immigrants, while

granting them to non-Chinese applicants. The "law" in Yick Wo

did not authorize city officials to treat Chinese applicants

differently than others. Rather, it established a neutral

permitting process. City officials applied that law unequally,

thereby violating the equal protection guarantee of the

constitution. Such a fact pattern is easily distinguishable

from the instant case, where an admittedly constitutional

statute prescribes the very discrimination from which

plaintiff claims to have suffered.

30
The concurrence is mistaken in its suggestion that I

agree that the "safe harbor encompasses only affirmative

action plans that are 'adopt[ed] and carr[ied] out . . . to

eliminate present effects of past discriminatory practices or

assure equal opportunity . . . .'" Slip op at 2. The safe

(continued...)

Finally, a complainant could articulate a challenge to a

public employer's actions in implementing a plan, by

demonstrating that they fell outside the scope authorized by

§ 210. He could establish a fact question on such a claim by

showing, hypothetically, that the employer hired a minority

firefighter despite the fact that the individual had failed a

required physical examination. Hiring such a candidate, who

would not be qualified even with the benefit of the

affirmative action plan, would not fall within the protection

of the safe harbor. A complainant could establish a fact

question whether the employer used some other unapproved plan,

thereby violating complainant's rights. Such acts would not

be protected by the safe harbor and the complainant's art 1,

§ 2 rights could be vindicated under the CRA.

Sharp attempted to create a fact question under certain

of these theories, but failed. Hence, he is now left with

nothing by way of an action arising either under the CRA or

directly under art 1, § 2. With no cognizable claims

30
(...continued)

harbor does not protect only those plans that succeed in

eliminating present effects of past discrimination. Section

210 contemplates protection for any properly approved plan

that is reasonably created with the intention of eliminating

discrimination or furthering equal opportunities in the

workplace. The section specifically refers to plans "to"

eliminate effects of discrimination, not plans "that" do in

fact eliminate them. The concurrence's sweeping

interpretation, if accurate, would render the safe-harbor

provision unworkable.

remaining that have not already been discharged, his cause was

properly dismissed by the Court of Appeals.

VII. CONCLUSION

I agree with the majority that the safe harbor protects

the city of Lansing from an action against it under the CRA.

I further acknowledge that the Legislature cannot abrogate

constitutional rights through passage of a statute. However,

the constitution can delegate authority. The CRA is the

Legislature's response to one such constitutional delegation

of authority. I believe that art 1, § 2, envisioned that the

Legislature would pass an act like the CRA that could be the

exclusive remedy for vindicating civil rights claims against

public employers in Michigan. I base this conclusion on the

expressed intent of certain constitutional convention

delegates and by analogy to a persuasive line of federal

authority regarding title VII and the federal equal protection

clause. The CRA closely resembles title VII that the United

States Supreme Court in Brown and Novotny held preempted the

field of employment discrimination claims under federal law.

Allowing the pursuit of parallel constitutional claims to

remedy wrongs cognizable under the CRA is not only illogical,

it threatens to undermine and destroy the comprehensive design

of the statute. Such a contrary ruling could not reflect the

intent of either the Legislature in passing the act or the

people in adopting the Michigan Constitution.

The majority first misconstrues my position, then finds

it "a startling proposition." Slip op at 18. It states my

position as being that, if a state actor commits ongoing

employment discrimination violative of the state Equal

Protection Clause but not violative of the CRA, the courts

cannot end the discrimination. My position is that, if a

state actor commits employment discrimination by performing

acts covered by the CRA, the state Equal Protection Clause

cannot be used to end the discrimination.

I have demonstrated that this proposition has extensive

support in holdings of the United States Supreme Court.

Moreover, a contrary holding, the majority's holding, sadly

weakens the "noble contributions of the state and federal

courts" in fighting discrimination that it purports to esteem.

The majority states that my reading of the law allows the

Legislature to "trump" the Michigan constitution. It says

that "it is axiomatic that the Legislature cannot grant a

license to state and local governmental actors to violate the

Michigan Constitution." Slip op at 21. However, a close

examination reveals that this is mere rhetoric and misses the

mark.

Without dispute, the constitution can delegate to the

Legislature the task of devising a comprehensive statutory

scheme to protect specific constitutional rights. Art 1, § 2

contains such a constitutional provision, and it is the one

involved in this case. It is also beyond dispute that, when

one person's constitutional rights conflict with another's,

courts will render a decision whereby one right is sublimated

to the other.

This dissent, simply stated, stands for the proposition

that, when a state actor discriminates against a person in a

manner made lawful by the CRA, that person's art 1, § 2 rights

are sublimated to the art 1, § 2 constitutional rights of

others to have the state actor discriminate in their interest.

Art 1, § 2 delegated to the Legislature the power to implement

it. In turn, the Legislature authorized the sublimation of

one person's equal protection rights over another's when it

created § 210.

The majority also distorts the meaning of the dissent

when it asserts that I would prevent the Court from hearing

plaintiff's claim that defendant discriminated against him.

It states that the dissent would prevent plaintiff from

recovering for defendant's acts that, although not violative

of the CRA, violate the Due Process Clause. However, one

should note, it neglects to specify the acts. What conduct by

defendant does plaintiff claim violated art 1, § 2, but did

not violate the CRA? In fact, plaintiff has named no

governmental action by defendant that survived summary

disposition, or that should have, and that, also, violated the

Due Process Clause.

Here, Sharp cannot sue under the CRA because of the bar

imposed by § 210. Both the nature of his claim and his

pleadings preclude the availability to him of a parallel

constitutional claim. The CRA provides his exclusive remedy.

Because the Court of Appeals properly dismissed this action,

I would affirm.

Sharp v. City of Lansing

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