Haynes v Neshewat

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MARCH 28, 2007

GREGORY HAYNES,

Plaintiff-Appellant,

v No. 129206

MICHAEL J. NESHEWAT, ROBERT J.
MURRAY, and BRIAN PELTZ,

Defendants,
and

OAKWOOD HEALTHCARE, INC. and
OAKWOOD HOSPITAL-SEAWAY
CENTER,

Defendants-Appellees.

BEFORE THE ENTIRE BENCH

KELLY, J.

We granted leave to appeal to determine whether plaintiff has stated a cause

of action under MCL 37.2302, the public accommodations provision of the Civil

Rights Act (CRA). This case arose when plaintiff, Dr. Gregory Haynes, an

African-American physician with staff privileges at Oakwood Hospital-Seaway
Center, alleged that defendants treated him differently than similarly situated

white physicians on the basis of his race. Plaintiff claims that a result of this

different treatment was that he was deprived of the ability and opportunity to fully

utilize the medical facilities in violation of the CRA.

Defendants moved for summary disposition of the CRA claims, arguing

that plaintiff’s allegations did not come within the scope of the act. The trial

court rejected defendants’ arguments and denied the motion. A divided Court of

Appeals reversed and decided that MCL 37.2302(a) addresses discrimination with

respect to services made available only to the public. We disagree. We find that

MCL 37.2302 prohibits unlawful discrimination against any individual, not just

members of the public. Accordingly, we reverse the judgment of the Court of

Appeals and remand this case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff is a physician licensed in the state of Michigan with specialties in

internal medicine and gastroenterology. In order to care for patients requiring

hospitalization, plaintiff has maintained, and still maintains, medical staff

membership and clinical privileges at Oakwood Hospital-Seaway Center. Plaintiff

is the only African-American staff physician who conducts the majority of his

hospital practice at Oakwood. Defendant Oakwood Healthcare, Inc. (Oakwood),1

1
Unless it is necessary to distinguish between the two, both Oakwood-
Seaway Center and Oakwood Healthcare, Inc., will be referenced as Oakwood.

is a Michigan nonprofit corporation that does business as Oakwood Hospital-

Seaway Center. Defendant Dr. Michael J. Neshewat was the chief of staff at

Oakwood.

On October 31, 2001, plaintiff filed his four-count complaint against

defendants.2 In the complaint, he asserted claims for violation of the CRA,

tortious interference with business relationships and expectancies, negligence, and

conspiracy under the CRA. Plaintiff alleges that defendants have treated him

differently than similarly situated physicians on the basis of his race. He claims

that he has been subjected to excessive charges of unprofessional behavior and

administrative hearings designed to discourage him from using the facilities at

Oakwood. He also alleges that defendants have attempted to steal his patients and

have disparaged his professional competence in an effort to impair his

relationships with patients and other physicians.3 Plaintiff claims that this

discriminatory treatment has deprived him of the ability and opportunity to fully

and equally utilize the facilities at Oakwood.

2
The complaint named as defendants Oakwood Healthcare, Inc.; Dr.
Michael Neshewat; Dr. Robert Murray; and Brian Peltz. Before the filing of
defendants’ motion for summary disposition, Mr. Peltz and Dr. Murray were
dismissed from the action by stipulation of the parties. Dr. Neshewat failed to
appear or plead and a default judgment was entered against him. Defendants
opposed plaintiff’s motion for entry of a default judgment, thereby preserving the
right to challenge the trial court’s decision granting the default judgment.
3
Plaintiff’s medical practice is largely dependent on referrals by patients
and other physicians. Plaintiff claims that defendant Neshewat intimidated other
(continued…)

Defendants moved for summary disposition, arguing, among other things,

that a hospital is not a place of public accommodation with respect to its decisions

concerning staff privileges. The trial court granted defendants’ motion with

respect to the claims of negligence and tortious interference with business

relationships.4 Summary disposition was denied on the CRA claims pursuant to

MCR 2.116(C)(8). The trial court determined that the CRA’s reach was broad

enough to protect plaintiff’s privilege to practice medicine without plaintiff

suffering racial discrimination within the hospital, a place of public

accommodation.

Defendants timely applied for, and were granted, interlocutory review. In a

split decision, the Court of Appeals reversed. Unpublished opinion per curiam,

issued June 23, 2005 (Docket No. 249848). The Court of Appeals majority held

that a place of public accommodation exists only through the provision of goods,

services, facilities, privileges, advantages, or accommodations to the public.

Services and privileges that a facility does not provide to the public, it reasoned,

do not implicate the public accommodations provision of the CRA. Therefore, the

Court held that a health facility is certainly a place of public accommodation under

the CRA in some respects. However, a physician’s complaint concerning his or

______________________________
(…continued)

physicians in an attempt to cause them to stop referring patients to him. Plaintiff

alleges that he has been singled out for this treatment because of his race.

4
Plaintiff did not appeal from this ruling.

her private medical staff privileges at a hospital does not come within the purview

of the public accommodations provisions.

Judge Griffin dissented. He would have held that the denial of a

physician’s full and equal enjoyment of hospital staff privileges because of racial

discrimination is prohibited by the CRA. We granted plaintiff’s application for

leave to appeal. 474 Mich 1000 (2006).

STANDARD OF REVIEW

This case involves a question of statutory interpretation, which we review

de novo. Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 40; 709 NW2d 589

(2006). We also review de novo a trial court’s decision on a motion for summary

disposition. Id. Defendant’s motion for summary disposition was made pursuant

to MCR 2.116(C)(8).5 In reviewing a ruling made under this court rule, a court

tests the legal sufficiency of the plaintiff’s complaint by the pleadings alone.

Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). The

motion should be granted only if no factual development could possibly justify

recovery. Beaudrie v Henderson, 465 Mich 124, 130; 631 NW2d 308 (2001).

5
MCR 2.116(C)(8) provides:
(C) Grounds. The motion may be based on one or more of
these grounds, and must specify the grounds on which it is based:

* * *

(8) The opposing party has failed to state a claim on which
relief can be granted.

ANALYSIS

A. INTERPRETING THE STATUTE

We are called on to decide whether plaintiff stated a cause of action under

the public accommodations section of the CRA. He alleged that defendants’

discriminatory behavior deprived him of the opportunity to fully and equally

utilize the Oakwood facilities. Two provisions of the public accommodations

section are relevant to our inquiry: MCL 37.2301(a) and MCL 37.2302(a). MCL

37.2301(a) defines the phrase “place of public accommodation” while MCL

37.2302(a) lists the rights persons cannot deny individuals in places of public

accommodation on the basis of a protected characteristic.

To resolve the issue before us, we must interpret the CRA. The primary

goal of statutory interpretation is to give effect to the intent of the Legislature.

Ford Motor Co v Woodhaven, 475 Mich 425, 438; 716 NW2d 247 (2006). If the

statute is unambiguous, this Court will apply its language as written. Id. When a

statute specifically defines a given term, that definition alone controls. Tryc v

Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996).

MCL 37.2302 provides in part:

Except where permitted by law, a person shall not:

(a) Deny an individual the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations of a place of public accommodation or public
service because of religion, race, color, national origin, age, sex, or
marital status.

In order to state a claim under MCL 37.2302(a), plaintiff must establish

four elements: (1) discrimination based on a protected characteristic (2) by a

person, (3) resulting in the denial of the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommodations (4) of a place of

public accommodation.

Plaintiff claims that he was discriminated against because of his race. Race

is one of the specifically listed protected characteristics. Therefore, this allegation

sufficiently establishes the first element. The CRA defines “person” as “an

individual, agent, association, corporation, joint apprenticeship committee, joint

stock company, labor organization, legal representative, mutual company,

partnership, receiver, trust, trustee in bankruptcy, unincorporated organization, the

state or a political subdivision of the state or an agency of the state, or any other

legal or commercial entity.” MCL 37.2103(g). Both defendant Neshewat and

defendant Oakwood fit within this definition. As a result, the second element is

also sufficiently established.

In order to establish the third element, plaintiff must have been denied the

full and equal enjoyment of goods, services, facilities, privileges, advantages, or

accommodations. The CRA does not define these terms. We give undefined

terms their ordinary meanings. Koontz v Ameritech Services, Inc, 466 Mich 304,

312; 645 NW2d 34 (2002). A dictionary may be consulted if necessary. Id.

Webster’s defines “privilege” as “a right, immunity, or benefit enjoyed by a

particular person or a restricted group of persons.” Random House Webster’s

College Dictionary (2001).

Plaintiff has staff privileges at Oakwood. These privileges give him the

right to use the hospital facilities to treat his patients. Staff privileges are

“privileges” because they are a “right” or “benefit” that is enjoyed only by a

restricted group of people, in this case doctors. Thus, the full and equal enjoyment

of staff privileges is protected by § 302(a). Plaintiff alleged that defendants

interfered with his staff privileges and that this denied him the opportunity to fully

and equally utilize the facilities. This allegation sufficiently establishes the third

element of the statute.

The last remaining inquiry is whether Oakwood is a place of public

accommodation.

MCL 37.2301(a) provides in part:

As used in this article:

(a) “Place of public accommodation” means a business, or an
educational, refreshment, entertainment, recreation, health, or
transportation facility, or institution of any kind, whether licensed or
not, whose goods, services, facilities, privileges, advantages, or
accommodations are extended, offered, sold, or otherwise made
available to the public.

Oakwood provides a full range of health services to the public. It is a

“business [or] . . . health . . . facility . . . whose goods, services, facilities,

privileges, advantages, or accommodations are extended, offered, sold, or

otherwise made available to the public.” MCL 37.2301(a). Therefore, Oakwood

qualifies as a place of public accommodation. See Whitman v Mercy-Memorial

Hosp, 128 Mich App 155; 339 NW2d 730 (1983). As a result, all four elements

of the statute are sufficiently established and plaintiff has stated a cause of action

under the CRA.

B. MCL 37.2302(a) PROTECTS INDIVIDUALS, NOT MEMBERS OF THE PUBLIC

Defendants argue, and the Court of Appeals majority agreed, that plaintiff

states a claim under § 302(a) only if he alleges that he was deprived of goods,

services, facilities, privileges, advantages, or accommodations that were made

available to the public. According to defendants, even if there has been an

interference with plaintiff’s ability to practice as a physician at Oakwood, plaintiff

has not stated a cause of action. They reason that the practice of medicine is not a

privilege offered to the public. We reject this interpretation because it is contrary

to the language of the statute.

MCL 37.2302(a) protects the rights of individuals.6 Individuals, not

members of the public, are protected from the denial of the full and equal

enjoyment of the goods, services, facilities, privileges, advantages, or

6
MCL 37.2302 provides in part:

Except where permitted by law, a person shall not:

accommodations. Nowhere within the wording of § 302(a) is it required that the

goods, services, facilities, privileges, advantages, or accommodations be offered to

the public. We will not read into the statute a limitation that is not there. We

hold that MCL 37.2302(a) forbids unlawful discrimination against any individual

in a place of public accommodation, not just against members of the public.

C. KASSAB

The defendants argue that this case is controlled by our decision in Kassab

v Michigan Basic Prop Ins Ass’n, 441 Mich 433; 491 NW2d 545 (1992). In

Kassab, this Court decided that the CRA did not provide a remedy for

discriminatory processing of insurance claims. Id. at 442. The Court concluded

that, even if the insurance company was a “‘[p]lace of public accommodation,’”

the CRA did not extend beyond “‘services . . . made available to the public’” and

so did not provide a cause of action to Mr. Kassab. Id. at 440-441. It held that, as

long as the company provided access to services, the CRA did not prevent it from

discriminating in providing full and equal enjoyment of those services. Id. at 441.

We conclude that the Court in Kassab erred by reading nonexistent limitations into

the statute. To the extent that Kassab can be read to limit the CRA inconsistently

with our holding today, it is overruled.

We are mindful of the doctrine of stare decisis and do not take lightly our

decision to overrule Kassab. In Robinson v Detroit,7 we discussed stare decisis

7
462 Mich 439; 613 NW2d 307 (2000).

and the factors to be considered when deciding whether to overrule a prior

decision. When evaluating the factors, the first question we ask is whether the

earlier decision was wrongly decided. Id. at 464. As we discussed previously,

Kassab was wrongly decided. The Court erred by reading a nonexistent limitation

into the statute.

Finding that a prior decision was wrongly decided is not the end of our

inquiry. We must also weigh the effects of overruling the decision. Id. at 466.

This consideration involves a review of whether the decision “defies ‘practical

workability,’ whether reliance interests would work an undue hardship, and

whether changes in the law or facts no longer justify the questioned decision.” Id.

at 464.

We find that there are no factors that counsel against overruling Kassab.

Kassab held that the CRA does not provide a cause of action for discriminatory

processing of insurance claims. The fact that some parties may rely on a decision

to protect them from civil liability for discriminatory behavior is not a reason to

uphold an erroneous decision. This is especially true when the prior decision

involves the interpretation of the CRA. The CRA implements the equal protection

and antidiscrimination guarantees of the Michigan Constitution. It would be

inconsistent with these constitutional guarantees to uphold an erroneous

interpretation of the CRA.

CONCLUSION

The public accommodations provision of the CRA, MCL 37.2302, does not

limit its prohibition against discrimination to members of the public. Rather, §

302(a) prohibits unlawful discrimination against any individual’s full and equal

enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of a place of public accommodation.

Plaintiff is a physician with staff and clinical privileges at Oakwood. By

alleging that defendants’ discriminatory behavior deprived him of the opportunity

to fully utilize the Oakwood medical facilities, plaintiff stated a cause of action

under the CRA. The judgment of the Court of Appeals is reversed, and this case is

remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

Marilyn Kelly
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

STATE OF MICHIGAN

SUPREME COURT

GREGORY HAYNES,

Plaintiff-Appellant,

v No. 129206

MICHAEL J. NESHEWAT, ROBERT J.
MURRAY, and BRIAN PELTZ,

Defendants,
and

OAKWOOD HEALTHCARE, INC. and
OAKWOOD HOSPITAL-SEAWAY
CENTER,

Defendants-Appellees.

KELLY, J. (concurring). This case requires us to interpret the public

accommodations provision of the Civil Rights Act (CRA), MCL 37.2302. A

unanimous Court agrees that this provision prohibits unlawful discrimination

against any individual, and not just members of the public. Having authored the

opinion, obviously I agree with it. But I write separately because I believe that it

is important to set forth additional reasons for the decision to which not all my

colleagues adhere.

To start, I find frequent ambiguity in statutory language. I do not subscribe

to the belief that “only a few [statutory] provisions are truly ambiguous.” Mayor

of Lansing v Michigan Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840
(2004). For various reasons, not the least of which is the imprecise character of

language, it is often impossible to discern legislative intent solely from the

language written into statutes. As Justice Frankfurter eloquently stated:

Unlike mathematical symbols, the phrasing of a document,
especially a complicated enactment, seldom attains more than
approximate precision. If individual words are inexact symbols,
with shifting variables, their configuration can hardly achieve
invariant meaning or assured definiteness. Apart from the ambiguity
inherent in its symbols, a statute suffers from dubieties. It is not an
equation or a formula representing a clearly marked process, nor is it
an expression of an individual thought to which is imparted the
definiteness a single authorship can give. A statute is an instrument
of government partaking of its practical purposes but also of its
infirmities and limitations, of its awkward and groping efforts.
[Frankfurter, Some reflections on the reading of statutes, 47 Colum
L R 527, 528 (1947).]
Accordingly, rather than restraining myself to the text and “mak[ing] a fortress out

of the dictionary,”1 I weigh on the balance any material that illuminates legislative

intent. In this case, I have found numerous persuasive factors, not discussed in the

majority opinion, that indicate that this Court has reached the correct interpretation

of the statute.2

1
Cabell v Markham, 148 F2d 737, 739 (CA 2, 1945) (opinion by Hand, J.)
2
Justice Markman writes a concurring opinion criticizing my approach to
statutory analysis, suggesting it lacks discipline. The aids to statutory construction
I use in my concurring opinion are among many that have been applied by the
Michigan Supreme Court since long before either Justice Markman or I was born.
Almost every justice who has ever sat in this Court would be shocked to hear the
statutory analysis I use depreciated as “language-avoidance ‘interpretative’
techniques.” I agree with Justice Markman that aids to statutory analysis should
(continued…)

A. REMEDIAL STATUTES

The canon of statutory construction that remedial statutes are to be

liberally construed is deeply imbedded in American jurisprudence. Indeed, all 50

states3 and courts in each federal circuit4 have endorsed it. Even the United States

______________________________
(…continued)

not be misused and, I might add, that includes the “textualist” approach to which

he so avidly subscribes.

3
See, e.g., Alabama: Austin v Alabama Check Cashers Ass’n, 936 So 2d
1014, 1026 (Ala, 2005). Alaska: DH Blattner & Sons v NM Rothschild & Sons,
Ltd, 55 P3d 37, 47 (Alas, 2002). Arizona: Special Fund Div v Industrial Comm,
191 Ariz 149, 152; 953 P2d 541 (1998). Arkansas: Chicago Mill & Lumber Co v
Smith, 228 Ark 876; 310 SW2d 803 (1958). California: Betancourt v Storke
Housing Investors, 31 Cal 4th 1157; 82 P3d 286 (2003). Colorado: Christy v
Ibarra, 826 P2d 361 (Colo App, 1991). Connecticut: Pereira v State, 228 Conn
535, 542; 637 A2d 392 (1994). Delaware: Vance v Irwin, 619 A2d 1163, 1164-
1165 (Del, 1993). Florida: Joshua v City of Gainesville, 768 So 2d 432, 435 (Fla,
2000). Georgia: Mitchell v Wilkerson, 258 Ga 608, 610; 372 SE2d 432 (1988).
Hawaii: Kalima v State, 111 Hawaii 84, 99; 137 P3d 990 (2006). Idaho: Page v
McCain Foods, Inc, 141 Idaho 342, 346; 109 P3d 1084 (2005). Illinois: Grant
Contracting Co v Murphy, 387 Ill 137, 143; 56 NE2d 313 (1944). Indiana: United
Nat’l Ins Co v DePrizio, 705 NE2d 455, 459-460 (Ind, 1999). Iowa: TLC Home
Health Care, LLC v Iowa Dep’t of Human Services, 638 NW2d 708, 714 (Iowa,
2002). Kansas: O’Donoghue v Farm Bureau Mut Ins Co, Inc, 275 Kan 430, 437;
66 P3d 822 (2003). Kentucky: City of Louisville v Slack, 39 SW3d 809, 815 (Ky,
2001). Louisiana: Jim Walter Homes, Inc v Guilbeau, 934 So 2d 239, 245 (La
App, 2006). Maine: Bennett v Prawer, 2001 Me 172; 786 A2d 605 (2001).
Maryland: Caffrey v Dep't of Liquor Control, 370 Md 272, 306; 805 A2d 268
(2002). Massachusetts: Gasior v Massachusetts Gen Hosp, 446 Mass 645, 654,
846 NE2d 1133 (2006). Michigan: Eide v Kelsey-Hayes Co, 431 Mich 26, 36; 427
NW2d 488 (1988). Minnesota: Foley v Whelan, 219 Minn 209, 213; 17 NW2d
367 (1945). Mississippi: Cahoon v Scarborough, 159 Miss 5, 10; 131 So 431
(1930). Missouri: Scheble v Missouri Clean Water Comm, 734 SW2d 541, 556
(Mo App, 1987). Montana: In re CH, 318 Mont 208, 214; 79 P3d 822 (2003).
Nebraska: State v Kastle, 120 Neb 758, 772; 235 NW 458 (1931). Nevada: Virden
v Smith, 46 Nev 208, 211; 210 P 129 (1922). New Hampshire: Newell v Moreau,
94 NH 439, 442; 55 A2d 476 (1947). New Jersey: Feldman v Hunterdon
(continued…)

______________________________
(…continued)
Radiological Assoc, 187 NJ 228, 239; 901 A2d 322 (2006). New Mexico: Mem
Med Ctr v Tatsch Constr, Inc, 129 NM 677, 685; 12 P3d 431 (2000). New York:
Rizzo v New York State Div of Housing & Community Renewal, 6 NY3d 104, 114;
843 NE2d 739 (2005). North Carolina: Nationwide Mut Ins Co v Lankford, 118
NC App 368, 376; 455 SE2d 484 (1995). North Dakota: Schaefer v Job Service
North Dakota, 463 NW2d 665, 666 (ND, 1990). Ohio: Clark v Scarpelli, 91 Ohio
St 3d 271, 275; 744 NE2d 719 (2001). Oklahoma: Associated Indemnity Corp v
Cannon, 1975 Okla 87; 536 P2d 920 (1975). Oregon: Rash v Employment Div, 85
Or App 570, 573; 737 P2d 966 (Or App, 1987). Pennsylvania: School Dist v
Montgomery, 227 Pa 370; 76 A 75 (1910). Rhode Island: Weybosset Hill
Investments, LLC v Rossi, 857 A2d 231, 239 (RI, 2004). South Carolina: Elliott v
South Carolina Dep’t of Transportation, 362 SC 234, 237; 607 SE 2d 90 (SC App,
2004). South Dakota: Chiolis v Lage Dev Co, 512 NW2d 158, 163 (SD, 1994).
Tennessee: Kannon v Pillow, 26 Tenn 281 (1846). Texas: Mecca Fire Ins Co v
Stricker, 136 SW 599, 601 (Tex Civ App, 1911). Utah: Tolle v Fenley, 2006 Utah
App 78; 132 P3d 63 (2006). Vermont: Celeste Washington Supreme Court v
Pierce, 2005 Vt 125 (2005). Virginia: Brooks v Hannan, 53 Va Cir 465, 466
(2000). Washington: State ex rel Winston v Seattle Gas & Electric Co, 28 Wash
488, 493; 68 P 946 (1902). West Virginia: Plummer v Workers’ Compensation
Div, 209 W Va 710, 713; 551 SE2d 46 (2001). Wisconsin: Dep’t of
Transportation v Transportation Comm, 111 Wis 2d 80, 92; 330 NW2d 159
(1983). Wyoming: Wyoming Ins Guaranty Ass’n v Woods, 888 P2d 192, 195
(Wy, 1994).
4
See, e.g., First Circuit: Carew v Boston Elastic Fabric Co, 5 F Cas 56 (D
Mass, 1871); United States, to Use and Benefit of Sargent Co v Century Indemnity
Co, 9 F Supp 809 (D Me, 1935); Stevens v Bangor & Aroostook R Co, 97 F3d 595
(CA 1, 1996). Second Circuit: Imlay v Norwich & W R Co, 13 F Cas 1 (D Conn,
1858); Bossert Electric Constr Co v Pratt Chuck Co, 179 F 385 (CA 2, 1910);
Pittston Stevedoring Corp v Dellaventura, 544 F2d 35 (CA 2, 1976); Rogers v
Consolidated Rail Corp, 948 F2d 858 (CA 2, 1991); Travelers Ins Co v Carpenter,
411 F3d 323 (CA 2, 2005). Third Circuit: Sirkin v Phillips Colleges, Inc, 779 F
Supp 751 (D NJ, 1991); Clarke v Unum Life Ins Co of America, 14 F Supp 2d
1351 (SD Ga, 1998). Fourth Circuit: Dorsey v Bowen, 828 F2d 246 (CA 4,
1987); Bass v City of Wilson, 835 F Supp 255 (ED NC, 1993). Fifth Circuit:
Everett v Ribicoff, 200 F Supp 103 (ND Fla, 1961); Harris v Wal-Mart Stores, Inc,
205 F3d 847 (CA 5, 2000); Sixth Circuit: Jeter v Finch, 310 F Supp 1371 (ED Ky,
1970); Marshall v Davis, 517 F Supp 551 (WD Mich, 1981). Seventh Circuit:
Smith v Packard, 98 F 793 (CA 7, 1900); Schweizer v Mager, 297 F 334 (ND Ill,
1924); Johnson v Runyon, 47 F3d 911 (CA 7, 1995); Eighth Circuit: Surrisi v
(continued…)

Supreme Court has adopted the canon and construed many federal laws using it.5

This long-established canon still has a place in Michigan law. Though it cannot be

relied on to reach a result that is inconsistent with statutory language, it is

otherwise entitled to consideration. Plaintiff brought suit under the Michigan Civil

Rights Act. As we have stated on prior occasions, the CRA is a broad, remedial

statute. Eide v Kelsey- Hayes, 431 Mich 26, 36; 427 NW2d 488 (1988). When

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(…continued)
Conwed Corp, 510 F2d 1088 (CA 7, 1975); Maune v IBEW, Local #1, Health &
Welfare Fund, 83 F3d 959 (CA 8, 1996). Ninth Circuit: Mahroom v Hook, 563
F2d 1369 (CA 9, 1977); Smith v CMTA-IAM Pension Trust, 746 F2d 587 (CA 9,
1984); Carson Harbor Village, Ltd v Unocal Corp, 270 F3d 863 (CA 9, 2001).
Tenth Circuit: In re Dederick Herzig, 91 F2d 646 (CA 10, 1937); Sierra Club v
Seaboard Farms Inc, 387 F3d 1167 (CA 10, 2004). Eleventh Circuit: Hellums v
Webster Industries, 97 F Supp 2d 1287 (MD Ala, 2000); Cusumano v Maquipan
Int’l, Inc, 2005 US Dist LEXIS 30257 (MD Fla, 2005). D.C. Circuit: Bethel v
Jefferson, 589 F2d 631 (1978); Thomas v Mineta, 310 F Supp 2d 198 (D DC,
2004).
5
The United States Supreme Court has used this canon in interpreting: the
Securities and Exchange Act, 15 USC 78a et seq., Tcherepnin v Knight, 389 US
332, 336; 88 S Ct 548; 19 L Ed 2d 564 (1967); patent laws, Winans v Denmead,
56 US 330, 341; 14 L Ed 717 (1854); the federal Motor Carrier Act, 49 USC 306,
McDonald v Thompson, 305 US 263, 266; 59 S Ct 176; 83 L Ed 164 (1938);
revenue statutes, United States v Hodson, 77 US 395, 406; 19 L Ed 937 (1870);
the Longshoremens and Harbors Act, 39 USC 900 et seq., Baltimore &
Philadelphia Steamboat Co v Norton, 284 US 408, 414; 52 S Ct 187; 76 L Ed 366
(1932); the Fair Labor Standards Act, 42 USC 12101 et seq., Mitchell v Lublin,
McGaughy & Assoc, 358 US 207, 211; 79 S Ct 260; 3 L Ed 2d 243 (1959); the
Civil Rights Act, 42 USC 1983, Gomez v Toledo, 446 US 635, 639; 100 S Ct
1920; 64 L Ed 2d 572 (1980); the Americans with Disabilities Act, 42 USC 12101
et seq., PGA Tour, Inc v Martin, 532 US 661, 676; 121 S Ct 1879; 149 L Ed 2d
904 (2003); antitrust laws, Jefferson Co Pharmacutical Ass’n, Inc v Abbott
Laboratories, 460 US 150, 159; 103 S Ct 1011; 74 L Ed 2d 882 (1983); and the
federal Employers’ Liability Act, 45 USC 51 et seq., Atchison T & S F R Co v
Buell, 480 US 557, 562; 107 S Ct 1410; 94 L Ed 2d 563 (1987).

interpreting this statute and similar remedial statutes, it is important to remember

the “well-established rule that remedial statutes are to be liberally construed to

suppress the evil and advance the remedy.” Id. at 34 (citing 3 Sands, Sutherland

Statutory Construction [4th ed], § 60.01, p 55).

B. SUPPORT FOR OUR INTERPRETATION OUTSIDE OUR JURISDICTION

There is also support for our interpretation outside this jurisdiction. The

language used in the CRA6 is substantially similar to the language of title III of the

Americans with Disabilities Act.7 For this reason, the caselaw interpreting the

Americans with Disabilities Act is instructive with regard to the correct

interpretation of our statute.

6
MCL 37.2302 provides in part:

Except where permitted by law, a person shall not:

(a) General rule. No individual shall be discriminated against
on the basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a place of public
accommodation.

In Menkowitz v Pottstown Mem Med Ctr,8 the United States Court of

Appeals for the Third Circuit decided a case involving almost identical facts. In

that case, the defendant hospital suspended the staff privileges of the plaintiff, a

disabled orthopedic surgeon. Id. at 115. The plaintiff sued, alleging that the

hospital had discriminated against him on the basis of his disability. Id. at 116.

The district court dismissed the claim, deciding that title III protects only those

seeking medical care, not the employees and other staff who serve them. Id. The

Third Circuit reversed, holding that a “medical doctor with staff privileges . . .

may assert a cause of action under Title III of the ADA as an ‘individual’ who is

denied the ‘full and equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public accommodation.’” Id. at

122. This is the same conclusion we have reached in interpreting our statute.

Because the Third Circuit was interpreting a similar statute under similar

circumstances, the Menkowitz decision supports the conclusion that we reached

the correct interpretation of our statute.

C. OUR INTERPRETATION IS CONSISTENT WITH MICHIGAN LAW

Our conclusion is also consistent with existing Michigan caselaw. The fact

that, in considering a similar issue, another Michigan court reached an analogous

result gives us confidence that our interpretation of the statute is correct.

8
154 F3d 113 (CA 3, 1998).

In Neal v Dep’t of Corrections, the plaintiffs were women inmates in

Michigan Department of Corrections facilities who claimed they were victims of

sexual harassment. Initially, the Court of Appeals ruled that the prisoners were

not protected by the CRA because the prison did not furnish a service to its

prisoners. Neal v Dep’t of Corrections, 230 Mich App 202, 209; 583 NW2d 249

(1998) (Neal I). However, on rehearing, the Court of Appeals ruled that the

prisoners were protected because the CRA does not preclude its application on the

basis of a person’s status as a prisoner or inmate. Neal v Dep’t of Corrections (On

Rehearing), 232 Mich App 730, 740; 592 NW2d 370 (1998) (Neal II). A special

panel of the Court of Appeals affirmed the decision in Neal II in its opinion in Doe

v Dep’t of Corrections, 240 Mich App 199; 611 NW2d 1 (2000). The special

panel conceded that it was possible that the Legislature did not intend the CRA to

apply to prisoners. But, it stated, it did not have the liberty to change the meaning

of statutory language. Id. at 201.

Neal arose in a different context. However, the argument advanced by the

defendants in that case is the same one advanced by defendants here, that there is

an inferred exclusion from the protection of the CRA. Neal I, 230 Mich App at

206. In Neal, the defendants claimed that penal institutions should be divided into

a public side, where discrimination is prohibited, and a nonpublic side, where

inmates are not protected. Id. In this case, according to defendants,

discrimination is not allowed when hospitals are providing services to the public.

But, they reason, as regards relationships with the hospitals’ physicians, the CRA

does not prohibit discrimination. We reject this argument here just as the Court of

Appeals did in Neal. The statute simply does not preclude its application on the

basis of a person’s status.

D. LEGISLATIVE ACQUIESCENCE

Aside from the similarity of the arguments advanced, the Court of Appeals

decision in Doe is persuasive for another reason. After the special panel’s

decision, the Legislature amended the CRA specifically to exclude prisoners.

When it did so, it had the opportunity to carve out a broader exclusion. However,

it did not remove prisons as places of public service, nor did it engage in the

artifice of dividing the institution into public and nonpublic areas. The Legislature

simply removed prisoners from the protection of the act. It has made no further

exclusion of persons or classes of persons from the CRA, nor has it given any

indication of an intent to further restrict this remedial statute. Its decision not to

insert further exclusionary language is evidence that the Legislature approved the

Court’s broad interpretation of this statute. See, e.g., Twork v Munising Paper Co,

275 Mich 174, 178; 266 NW 311 (1936); Gordon Sel-Way, Inc v Spence Bros Inc,

438 Mich 488, 505; 475 NW2d 704 (1991).

CONCLUSION

The language of the CRA clearly supports the decision in this case. I write

separately to stress that the language is not the only consideration that courts

should weigh in interpreting a statute. “[T]he purpose of construction is the

ascertainment of meaning; nothing that is logically relevant should be excluded.”

Stephen Breyer Active Liberty (New York: Knopf, 2005), p 18, quoting Learned

Hand, The Spirit of Liberty (New York: Knopf, 1960), p 109. Interpreting a

statute involves a search for intent, and courts should be free to use all available

interpretative tools in undertaking it. Here, each of the factors I have discussed is

relevant to that search.

Marilyn Kelly
Michael F. Cavanagh

STATE OF MICHIGAN

SUPREME COURT

GREGORY HAYNES,

Plaintiff-Appellant,

v No. 129206

MICHAEL J. NESHEWAT, ROBERT J.
MURRAY, and BRIAN PELTZ,

Defendants,
and

OAKWOOD HEALTHCARE, INC., and
OAKWOOD HOSPITAL-SEAWAY
CENTER,

Defendants-Appellees.

MARKMAN, J. (concurring). Having reached the proper result in this case

through a proper legal analysis, Justice Kelly in a concurrence to her own majority

opinion proceeds to demonstrate that she could have reached the same result

through less disciplined means. Not content to rely, as she does in her majority

opinion, on the actual language of the law, Justice Kelly invokes an array of

alternative techniques to “interpret” the law in her concurring opinion. She relies

upon a “liberal construction” of the statute in question; she relies upon

characterizations of the statute as “broad” and “remedial”; she relies upon a

summary description of the law as “ambiguous,” therefore apparently affording

her the discretion to pick and choose the law she prefers; she relies upon the
Legislature’s inaction in the wake of an earlier court decision, equating this to

approval of the Court’s decision; she disparages the value of dictionaries as an

essential tool in the interpretative process; and she relies upon an extraordinarily

broad understanding of “legislative history.” For the sake of future reference, a

further catalogue of language-avoidance “interpretative” techniques would include

the following: divining the “spirit of a statute”; relying upon considerations of

“public policy”; standardlessly applying “equity”; characterizing statutes with

which a judge disagrees as “absurd”; and concocting creative “balancing” and

“totality of circumstances” tests. Innovatively applied, each of these techniques

can be relied upon to avoid the hard task of having to discern a statute's meaning

from its actual language.

Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.

Haynes v Neshewat

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