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 JUNE 4, 2002
LESLIE G. CRAWFORD,
Plaintiff-Appellant,
v No. 114930
DEPARTMENT OF CIVIL SERVICE,
MEMBERS OF THE CIVIL SERVICE
COMMISSION, DEPARTMENT OF
CORRECTIONS, and DIRECTOR OF
THE DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
________________________________
PER CURIAM
The plaintiff claims that he was improperly denied a
promotion and that minority applicants with lower test scores
were promoted. He brought this action under 42 USC 1983,
Const 1963, art 11, § 5, and the Michigan Civil Rights Act.
The circuit court granted summary disposition for the
defendants, and the Court of Appeals affirmed. We conclude:
(1) the “safe harbor” provision of MCL 37.2210 does not bar
the plaintiff’s constitutional or federal law claims,
(2) plaintiff has standing to pursue those claims, and (3)
further factual development is needed on the merits, making
summary disposition inappropriate under MCR 2.116(C)(10). We
remand the case to the Saginaw Circuit Court for further
proceedings.
I
The plaintiff’s complaint alleges that he has worked for
the Department of Corrections since 1987. He began at the
Thumb Correctional Facility as a Corrections Officer. In
1989, the plaintiff took a written examination for
supervisors, and received a score of 99 out of 100, which gave
him a “band 1" (highly qualified) rating. The other levels
are band 2 (qualified) and band 3 (unqualified). The
plaintiff began working as a sergeant in 1989 at the Standish
Maximum Correctional Facility. He held that position for
about two years, and then spent almost two more years there in
a lower job classification following a voluntary demotion.
The plaintiff resumed his status as a sergeant in 1993,
serving as a “CSS IV sergeant” at the Gus Harrison
Correctional Facility in Adrian, which required a 218-mile
daily round trip from his Clio home.
In 1993, the Department of Corrections opened the Saginaw
Correctional Facility near plaintiff’s home, and he sought a
sergeant’s position there. Although he already worked at that
rank in Adrian, the Department of Corrections required persons
seeking lateral transfers to proceed as though they were
seeking promotion to that position. The plaintiff therefore
2
took a “structured interview” in the spring of 1994. The
interview process involved a group of applicants being asked
identical questions. The responses were then scored and the
applicants were ranked.
The Department of Corrections hired eleven persons into
the sergeant positions at Saginaw. Three were
African-Americans who had scored in the top eleven. Four were
African-Americans who did not score in the top eleven. The
plaintiff and three other white applicants who scored in the
top eleven were not given positions.
Of the four African-Americans who were hired as sergeants
despite not placing in the top eleven, three had received
written scores that placed them in band 2 on the written exam.
Under “augmented certification” procedures employed by the
Department of Corrections, members of protected groups
(African-Americans, Hispanics, American Indians, Asians,
Pacific Islanders, women, and handicapped persons) in band 2
were treated as though they had scored in band 1, under
certain circumstances. In this instance, those applicants
were moved into the set of persons eligible for promotion even
though nonhandicapped white males in band 2 were never moved
into band 1.
In June 1996, the plaintiff filed suit against the Civil
Service Commission, the Department of Civil Service, and the
Department of Corrections and its director. In count I of his
amended complaint, the plaintiff asked for “prospective
3
relief” under 42 USC 1983—declaratory and injunctive relief
that would cancel the department’s affirmative action plans
and processes. Count II sought injunctive and declaratory
relief under Const 1963, art 11, § 5 (the Civil Service
provision that prohibits appointments and promotions on the
basis of racial considerations). Count III was framed under
the Michigan Civil Rights Act,1 and once again asked for
declaratory and injunctive relief. In each count, the
plaintiff also specifically requested an order that would
place him at the Saginaw Correctional Facility in the disputed
sergeant position.
II
In response to the first amended complaint, the
defendants filed a motion for summary disposition, which the
circuit court granted on August 12, 1997.
The department’s affirmative action plan had been
submitted to and approved by the Civil Rights Commission under
MCL 37.2210, which 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.
The circuit court held that that approval insulated the
department from an action under the Civil Rights Act, and
dismissed count III of the complaint. The court granted
1
MCL 37.2101 et seq.
4
summary disposition on plaintiff’s 42 USC 1983 and Const 1963,
art 11, § 5 claims on the ground that the plaintiff lacked
standing. Alternatively, the court found that those claims
were moot because the department had ceased using the
augmented certification lists as part of the hiring process in
1997.2
The plaintiff appealed, and the Court of Appeals
affirmed, with Judge Markman dissenting.3 The majority agreed
with the circuit court that the Civil Rights Commission’s
approval of the affirmative action plan protected the
department from suit under the Civil Rights Act. It also
affirmed the circuit court’s conclusion that the plaintiff
2
The circuit court also added the following comment:
The Court would note parenthetically that even
if the Court’s analysis of Defendant’s race
discrimination claims in counts I and II are
erroneous, Plaintiff has advanced no documentary
proof that Defendant’s affirmative action plan has
accomplished its goal and despite same continues to
be utilized, as the trial court found to be
unconstitutional in Cremonte v State Police,
Livingston Circuit Court/Court of Claims
#94-13442-NO; #95-15727, which is cited by
Plaintiff in its supplemental authorities. Thus,
Plaintiff has not constructed a documentary record
to demonstrate that the goals of affirmative action
have been met, or exceeded, and the continued use
of the plan would “unnecessarily trammel the rights
of nonminority employees.” Victorson [v Dep’t of
Treasury, 439 Mich 131, 140; 482 NW2d 685 (1992)].
See also Conlin [v Blanchard, 745 F Supp 413, 423
(ED Mich, 1990)] and Johnson v Transportation
Agency, 480 US 616, 638; 107 S Ct 1442; 94 L Ed 2d
615 (1987).
3
Unpublished opinion per curiam issued, June 1, 1999
(Docket No. 205603).
5
lacked standing to seek declaratory and injunctive relief
under 42 USC 1983 and Const 1963, art 11, § 5.4
The plaintiff has filed an application for leave to
appeal to this Court. We held the application in abeyance for
Lewis v Michigan, Docket No. 114241, and Sharp v City of
Lansing, Docket No. 116171, which have now been decided.5
III
The appeal involves a decision on a motion for summary
disposition, which we review de novo. Hazle v Ford Motor Co,
464 Mich 456, 461; 628 NW2d 515 (2001). The critical issue in
the case—whether the plaintiff has standing—is a question of
law, which we also review de novo. Lee v Macomb Co Bd of
Comm’rs, 464 Mich 726, 734; 629 NW2d 900 (2001).
IV
The Sharp and Lewis decisions are not entirely
dispositive of this case. In Lewis, we held that the judicial
branch could not create a money damages remedy for violation
of the Equal Protection Clause of the Michigan Constitution.
Const 1963, art 1, § 2. The applicability of that principle
to this case is limited, however, since the plaintiff is not
seeking the benefit of such a judicially created damages
remedy. Rather, he primarily seeks injunctive relief.
4
The Court declined to reach the circuit court’s
alternative or “parenthetical” basis for granting summary
disposition.
5
Lewis v Michigan, 464 Mich 781; 629 NW2d 868 (2001);
Sharp v City of Lansing, 464 Mich 792; 629 NW2d 873 (2001).
6
Our decision in Sharp focused on the statutory safe
harbor defense of § 210 of the Civil Rights Act. Sharp makes
clear that an employer, like the department in this case, is
insulated from liability under the Civil Rights Act where the
affirmative action plan in question has been approved by the
Civil Rights Commission. However, in Sharp we emphasized that
that statute does not protect the defendant against other
claims:
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. Hence, the mere existence of an approved
affirmative action plan does not insulate a state
employer, or its plan, from all judicial scrutiny.
[464 Mich 800.]
V
The principal basis on which the Court of Appeals upheld
the summary disposition was its conclusion that the plaintiff
lacked standing. It found that there was no indication that
plaintiff would face adverse treatment in the future:
Here, the substance of plaintiff’s complaint
deals only with his past rejection. There has been
no showing that plaintiff will continue to apply
for the sergeant’s position at the SCF in the near
future or otherwise. Nor does plaintiff indicate
that a particular position exists for which he may
apply in the future where the DOC’s affirmative
action policy would also apply. Plaintiff also
does not claim to be excluded from any further
applicant pool or selection process in applying for
any given appointment for which he is qualified.
7
In addition, even if plaintiff had alleged
that he was going to apply for a sergeant’s
position in the immediate future at a desirable
location, there is no evidence that the DOC will
again use the affirmative action plan and augmented
certification lists. To the contrary, on April 25,
1997, the DOC discontinued its use of augmented
certification lists. Thus, if plaintiff attempts
to apply for another position, the selection
process will not use certification lists.
Therefore, it is conjectural whether plaintiff will
suffer any future injury because of the DOC’s
affirmative action plan. Accordingly, we find that
plaintiff failed to demonstrate a real and
immediate threat that he would again suffer similar
injury in the future and that the relief sought
would redress the future injury.
As we explained in Lee, supra, the doctrine of standing
has its origin in the requirement that the judiciary address
only actual controversies:
This position followed from the even earlier
iteration of the standing doctrine by Justice
Campbell in 1859 when, speaking for this Court, he
said:
“By the judicial power of courts is generally
understood the power to hear and determine
controversies between adverse parties, and
questions in litigation. [Daniels v People, 6 Mich
381, 388 (1859) (emphasis added).]”
Later, in Risser v Hoyt, 53 Mich 185, 193; 18 NW
611 (1884), this Court explained:
“The judicial power referred to is the
authority to hear and decide controversies, and to
make binding orders and judgments respecting them.
[Emphasis added.]” [464 Mich 738.]
In Lee, we endorsed the test articulated by the
United States Supreme Court in Lujan v Defenders of Wildlife,
504 US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d 351 (1992), in
which the Court said:
Over the years, our cases have established
8
that the irreducible constitutional minimum of
standing contains three elements. First, the
plaintiff must have suffered an “injury in fact”—an
invasion of a legally protected interest which is
(a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’”
Second, there must be a causal connection between
the injury and the conduct complained of—the injury
has to be “fairly . . . trace[able] to the
challenged action of the defendant, and not . . .
th[e] result [of] the independent action of some
third party not before the court.” Third, it must
be “likely,” as opposed to merely “speculative,”
that the injury will be “redressed by a favorable
decision.”
We concluded in Lee:
In our view, the Lujan test has the virtues of
articulating clear criteria and establishing the
burden of demonstrating these elements. Moreover,
its three elements appear to us to be fundamental
to standing; the United States Supreme Court
described them as establishing the “irreducible
constitutional minimum” of standing. We agree.
Accordingly, we now join Justice Cavanagh’s view
[in Detroit Fire Fighters Ass’n v Detroit, 449 Mich
629, 651-652; 537 NW2d 436 (1995)] and adopt the
Lujan test . . . . [464 Mich at 740.]
Judge Markman, dissenting in the Court of Appeals, found
the facts of this case to clearly come within the standing
requirements. As he explained:
With respect to count I, plaintiff sues for
declaratory relief under 42 USC 1983, namely, a
declaration that “said affirmative action policy,
the current availability standard, the ‘augmented
certification’ rule and the DOC’s affirmative
action plans in force in 1994 and thereafter are
unconstitutional, null and void . . . .” Here,
there is undisputably a “case of actual
controversy,” in which the parties have adverse
interests. Detroit Base Coalition v Dep’t of
Social Services, 431 Mich 172, 191-192; 428 NW2d
335 (1988); MCR 2.605(A). Plaintiff asserts that
the government has acted in a manner inconsistent
with the federal and state constitutions in
carrying outs its affirmative action programs,
while defendant denies this.
9
* * *
With respect to count II, plaintiff sues for
injunctive relief under Const 1963, art 11, § 5.
Such provision, in addition to mandating civil
service promotions “exclusively on the basis of
merit” and prohibiting decisions undertaken for
“religious, racial or partisan purposes,” also
provides that “[v]iolation of any of the provisions
hereof may be restrained or observance compelled by
injunctive or mandamus proceedings brought by any
citizen of the state.” However broadly this
provision is to be construed with regard to the
rights of “any citizen,” it is certainly broad
enough to encompass a “citizen” who has been
subject to the application of an affirmative action
plan—involving at least arguably a departure from
the constitutional “merit” standard—and who
otherwise has standing to pursue a statutory
damages claim. Plaintiff asserts that, but for the
dilution of the “merit” standard by defendant’s
affirmative action policies, he would have obtained
the promotion which he has currently been denied.
It may be that changes in the defendants’ policies will
mean that it is not appropriate to award injunctive relief
regarding future conduct. However, we agree with Judge
Markman that on its face this is a case in which the plaintiff
has standing. He alleges that he was denied a job for which
he was qualified and that he would have received but for
illegal racial discrimination. This would constitute a
concrete, actual injury directly traceable to the challenged
action by the defendants. He requests an order placing him in
that position. Such an order would redress the injury
claimed. Lujan, supra, 504 US 561. Whether he is entitled to
such relief is a question that must await further proceedings
in the circuit court. But, under the principles set forth in
our decisions, he has standing to bring this action.
10
This is particularly true of the plaintiff’s claim under
Const 1963, art 11, § 5. That section establishes the Civil
Service Commission, and includes the following provisions
relevant to this case:
No person shall be appointed to or promoted in
the classified service who has not been certified
by the commission as qualified for such appointment
or promotion. No appointments, promotions,
demotions or removals in the classified service
shall be made for religious, racial or partisan
considerations.
* * *
Violation of any of the provisions hereof may
be restrained or observance compelled by injunctive
or mandamus proceedings brought by any citizen of
the state.
That provision explicitly gives standing to any Michigan
citizen to challenge alleged violations of art 11, § 5.
Michigan Coalition of State Employee Unions v Civil Service
Comm, 465 Mich 212, 219; 634 NW2d 692 (2001). Thus, plaintiff
certainly has standing to seek injunctive or mandamus relief
against defendants’ alleged violations of art 11, § 5.
VI
Because it upheld the summary disposition on the standing
issue, the Court of Appeals did not reach the circuit court’s
alternative mootness theory. The circuit court had said:
Similarly, this Court alternatively finds that
Plaintiff’s 42 USC 1983 claim is moot. “An issue
is moot where circumstances render it impossible
for the reviewing court to grant any relief.” In
re Wayne Election Comm, 150 Mich App 427, 432; 388
NW2d 707 (1986), lv den 425 Mich 882 (1986).
However, where the issue is of public significance
and is likely to recur in the future yet evade
judicial review, this Court will entertain the
11
case. Id.; In re Forfeiture of $53, 178 Mich App
480, 485; 444 NW2d 182 (1989).
In the present case, Plaintiff requests an
injunction to enjoin Defendants from using,
implementing, or enforcing an affirmative action
plan. Since Defendants have ceased using augmented
certification lists as part of their hiring
process, it is unlikely that this issue will recur
in the future. If it does, Plaintiff and others
similarly situated have immediate recourse to
declaratory and injunctive relief, and thus are not
prejudiced by the court’s disposition herein.[6]
However, this ignores the fact that the plaintiff’s claim
seeks redress for the 1994 decision not to promote him.
Further factual development may establish that he is entitled
to relief on the ground that that decision was the product of
illegal race discrimination, or it may establish that he is
not entitled to such relief. However, the fact that the
Department of Corrections has apparently discontinued use of
the policies that allegedly led to that employment decision
does not render moot the controversy regarding the plaintiff’s
entitlement for redress for the 1994 decision.
The importance of the circuit court’s “parenthetical”
statement, which the Court of Appeals also did not address, is
not clear. It appears to be an at least tentative decision by
the circuit court that the plaintiff had not come forward with
enough evidence to show that the department’s affirmative
action plan was not still justified. Given the vagueness of
the circuit court’s statement in that regard, we cannot
6
The circuit court later said that the same mootness
analysis applied to the claim under Const 1963, art 11, § 5.
12
consider sustaining summary disposition for the defendants on
that ground. Certainly on the materials presented, it cannot
be said that there was no genuine issue of material fact on
that question.
VII
The safe-harbor provision of MCL 37.2210 does not
insulate the defendants from potential liability under federal
law or the Michigan Constitution, and plaintiff has standing
to challenge the Department of Corrections’ 1994 decision not
to promote him. Whether he is entitled to relief requires
further factual development in the circuit court.
Accordingly, the judgments of the Court of Appeals and the
Saginaw Circuit Court are reversed, and the case is remanded
to the circuit court for further proceedings.
CORRIGAN , C.J., and CAVANAGH , TAYLOR , and YOUNG , JJ.,
concurred.
KELLY , J., concurred in the result only.
13
S T A T E O F M I C H I G A N
SUPREME COURT
LESLIE G. CRAWFORD,
Plaintiff-Appellant,
v No. 114930
DEPARTMENT OF CIVIL SERVICE,
MEMBERS OF THE CIVIL SERVICE
COMMISSION, DEPARTMENT OF
CORRECTIONS, and DIRECTOR OF
THE DEPARTMENT OF CORRECTIONS,
Defendant-Appellees.
_______________________________
WEAVER, J. (concurring).
I concur in the decision to reverse the judgment of the
Court of Appeals and to remand to the circuit court for
further proceedings.
I write separately because I continue to disagree with
this Court’s adoption in Lee v Macomb Co Bd of Comm’rs, 464
Mich 726; 629 NW2d 900 (2001) of the federal standing
requirements from Lujan v Defenders of Wildlife, 504 US 555;
112 S Ct 2130; 119 L Ed 2d 351 (1992). As I stated in my
concurrence in Lee, I would not supplement Michigan’s
traditional rules of standing by adopting the federal test.
In this case, plaintiff has standing under Michigan’s
traditional rules. This Court stated in House Speaker v State
Administrative Bd, 441 Mich 547, 554; 495 NW2d 539 (1993),
that “[s]tanding requires a demonstration that the plaintiff’s
substantial interest will be detrimentally affected in a
manner different from the citizenry at large.” Plaintiff was
denied a job for which he was qualified in violation of the
prohibition of race-based hiring in Const 1963, art 11, § 5.
Plaintiff has thus clearly demonstrated that he has a
substantial interest that has been detrimentally affected in
a manner different from the citizenry at large.
MARKMAN , J., took no part in the decision of this case.
2