Asked and Answered . . .

Roderick Hills on Doe vs MDOC

By Steve Thorpe
Legal News

A lawsuit filed in 2013 by youth in Michigan’s adult prisons alleged that they were subjected to rape and sexual assaults from adult prisoners and staff. At issue in Doe v Michigan Department of Corrections 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. Coverage of the case intensified in 2015 after Michigan’s Attorney General Bill Schuette subpoenaed two journalists for their notes and interviews related to the suit. He later retracted those subpoenas and apologized. The suit is now a class action suit involving more than 600 youth. Professor Roderick Hills is the William T. Comfort, III Professor of Law at New York University School of Law. Hills writes in a variety of public law areas including constitutional law, local government law, land-use regulation, jurisdiction and conflicts of law and education law. He wrote an amicus brief submitted to the Michigan Supreme Court in 2016 in the Doe(s) v Michigan Department of Corrections case. Hills taught at the University of Michigan Law School from 1994 to 2006.

Thorpe: Please give us a brief summary of where Doe(s) v Michigan Department of Corrections stands at the moment.

The John Doe and Jane Doe plaintiffs filed the case back in 2013 on behalf of youth between the ages of 13-18 who were placed in adult prisons and sexually abused by state officers and adult prisoners. The case has progressed at a snail’s pace, however, because of the Department of Corrections’ more than a dozen of interlocutory appeals. The state most recently appealed the trial court’s ruling that these youth are protected by the Elliott Larsen Civil Rights Act (ELCRA), which protects all individuals from illegal and sexually abusive actions by state agencies and their agents.

Opposing the trial court’s reading, the state is arguing that the legislature can carve out groups of people from the protections of the ELCRA, even though this statute is the implementation of equal protection required by the Michigan Constitution. 

Thorpe: The Doe case seems to be very similar to the Neal case where women prisoners alleged they were raped and sexually harassed by MDOC staff. The state settled that class action in 2009 for a record $100 million after it had rebuffed earlier, smaller settlement offers. Instead, the state opted to aggressively pursue litigation for 12 years. In the present case, Doe, the state has filed 13 appeals to the Court of Appeals and five to the Michigan Supreme Court and, even as the case is entering its fifth year, Doe has had only limited discovery. To them, is this case not about the money? Are there conditions that will be imposed they would find unacceptable?

It is difficult to psychoanalyze the Michigan Attorney General from afar, but his stubborn resistance to all prison reform efforts is hard to fathom except as blind contempt for prisoners’ welfare. The plaintiffs are asking that Michigan protect kids in prison with basic reforms that are widely accepted as essential for safety and human rights. These include keeping children separate in sight and sound from adult prisoners, keeping children out of solitary confinement, and properly monitoring guards and inmates to insure children’s safety. Given the Michigan Department of Corrections’ poor track record of protecting inmates from rape as evidenced by the Neal case, it would make sense for General Schuette to try to figure out ways to solve the problem. Instead, he seems tenaciously to resist any reform whatsoever. 

It is worth pointing out that General Schuette has opposed prison reforms pushed by state legislators in his own political party: He strenuously opposed State Representative Joe Haveman’s bill to reform parole and sentencing rules for less serious offenses. This indifference to the protection and welfare of inmates is in line with General Schuette’s perplexing view that prisons are exclusively punitive institutions that provide no “public services” to inmates, a view flatly at odds with the obvious truth that prisons obviously are concerned with rehabilitation as well as punishment: Prisons provide – and should provide – numerous public services ranging from job training and education to healthcare and (most relevant to this case) protection of each inmate from the violence of others.

Thorpe: Schuette’s office’s handling of the case appeared to anger Court of Appeals Judge Amy Ronayne Krause, who criticized a legal maneuver to transfer the case to the state’s Court of Claims, where it could not be heard by a jury. "This request for declaratory actions is really some sort of horrible, frivolous attempt to manufacture jurisdiction in the Court of Claims,” she said. Thoughts?

Circuit court jurisdiction and jury trials for these civil rights claims are both plainly protected by an expressly added provision in recent state legislation preserving the right to jury trial for claims that existed against the State before Nov. 12, 2013. The plain text of this provision clearly includes claims for violation of ELCRA. (See MCL 600.6421(1)). The initial legislation was itself an extraordinary and controversial limit on the right to jury trial. It is strange that General Schuette would further try to curtail this right to jury trial against the plain text of the statute.  

Thorpe: State attorneys are also arguing that governmental entities are immune from all claims under the Elliott Larsen Civil Rights Act (ELCRA). What might be the consequences of them winning that argument?

The ELCRA is the basic remedy for unconstitutional discrimination in Michigan. General Schuette, however, is taking the position that the Governmental Tort Liability Act (“GTLA”), a state immunity statute governing ordinary tort cases like slip-and-fall lawsuits, limits ELCRA by barring lawsuits against individual officers. Since the State concedes that GTLA does not bar ELCRA claims against state agencies, the State is arguing that individual officials enjoy more sovereign immunity than the state government itself, even though the state government, not any individual official, is the actual “sovereign.” State courts, however, have repeatedly rejected the idea that the GTLA, a state law designed to cover ordinary torts of negligence, limits the constitutional rights to equal protection covered by the ELCRA.

If the state wins this argument, then courts could routinely bar all citizens, not just prisoners, from recovering compensation from state officials even when those officials’ illegal conduct is the reason why the state itself must pay out money to injured plaintiffs. This limit on officials’ liability seems like a recipe for perverse official incentives. Individual officials would violate residents’ rights to equal treatment, but the government and taxpayer, not the official, would be on the hook for the damages. 

Thorpe: If the state prevails, some say it could set a precedent that would allow them to exclude any group from constitutionally-guaranteed equal rights protection, potentially affecting all citizens. Agree?

Yes. The state’s rationale goes far beyond exclusion of prisoners to affect anyone against whom the state might discriminate. The state argues that the legislature is entitled to exclude any group from ELCRA’s protection just so long as there is some “rational basis” for saying that the excluded group is differently situated from everyone else. But this is an extraordinarily weak test.

Just about any group could be barred from seeking redress from unlawful discrimination on such a flimsy rationale. Public school teachers, residents of Flint, firefighters, LGBT citizens – virtually every group one can imagine – differs, by definition, from other people in one respect or another. That is what makes each a group. If the state legislature can invoke weak and often pretextual justifications rooted in such differences to single out groups, then anyone can be excluded from ELCRA. Indeed, the state’s theory was initially used back in the early 1990s against gay, lesbian, and bisexual residents of Colorado to justify a state constitutional amendment barring these groups from seeking protection from discrimination. The U.S. Supreme Court rejected the state’s theory back then in Romer v. Evans, 517 U.S. 620 (1996).


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