Appellate court to hear equal protection case involving jailed youths

The Michigan Court of Appeals will hear oral arguments Tuesday, Nov. 14 on an important equal protection issue stemming from a 2013 lawsuit filed over the alleged sexual abuse of incarcerated minors housed with adult prisoners.

At issue in Doe v MDOC, a case that has evolved into a class action suit involving more than 600 youths, is whether the legislature’s amendment to the Elliott Larsen Civil Rights Act (ELCRA), which carved out incarcerated individuals from protection against discrimination by the state based on their race, gender, religion, disability and national origin and age, violates the equal protection clause of the Michigan Constitution and whether it was prohibited by the implementation clause of Article I, § 2 of the Michigan Constitution.

Article I, § 2 of the Michigan Constitution states, “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 Elliott Larsen Act was the implementing statute mandated by the Michigan Constitution,” says MaryAnn Sarosi, a member of the Michigan Committee on Juvenile Justice. “The state is also arguing that all governmental entities are immune from any claims under the ELCRA (not just those claims filed by prisoners), while plaintiffs contend that the purpose of statute was to eliminate discrimination directed against a person because of that person’s membership in a certain class and to extend the protections against invidious discrimination to include governmental actions.”

The case, Sarosi notes, is entering “year 5 without reaching the discovery phase,” due in large measure to a series of appeals filed by state attorneys.

“The state’s time- and resource-consuming approach is the same one it used in a similar class action by women prisoners settled in 2009 (Neal v. MDOC),” Sarosi says. “In that case, the state’s use of delay tactics, its refusal to investigate and its rebuff of earlier, smaller settlement offers led to more women being raped, 12 years of litigation costs, and a record $100 million payout.”

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