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Jury Trial Right Exists In ELCRA Actions Against State

Posted on Wednesday, August 29, 2018

Plaintiffs have a right to a jury trial in Circuit Court when bringing actions against the state under the Elliott-Larsen Civil Rights Act (ELCRA), the Michigan Court of Appeals has ruled in a published decision.

The Court of Appeals in Doe v Dep’t of Transportation (Docket No. 338999) held that a plaintiff is entitled to a jury trial in an ELCRA claim against the state, as long as the claim was otherwise provided for by law and was properly pled.

In its analysis, the Court of Appeals pointed out the Court of Claims generally has exclusive jurisdiction over lawsuits against state governmental entities. There is no right to jury trial in the Court of Claims.

However, the Court of Appeals also noted that MCL 600.6421(1) entitles a plaintiff to a jury trial in claims against the state. As a result, the Michigan Legislature has consented to Circuit Court jury trials in claims against the state, the Court of Appeals ruled.

Sexual Harassment Allegations

The plaintiff worked for the defendant, Michigan Department of Transportation. She filed a sexual harassment and retaliation complaint under the ELCRA (MCL 37.2101 et seq.) against the defendant in a Michigan Circuit Court. The complaint included a demand for a jury trial.

The defendant had the matter removed to the Court of Claims and immediately brought a motion to dismiss the plaintiff’s claim. The plaintiff filed an emergency motion to transfer the case back to Circuit Court, asserting the jury trial exception in MCL 600.6421(1) took precedence over the exclusive jurisdiction of the Court of Claims. The defendant, however, argued the jury trial exception did not apply because the plaintiff was not entitled to a jury trial in an ELCRA lawsuit against the State of Michigan.

Finding it had concurrent jurisdiction with the Circuit Court, the Court of Claims said it was “well established” in Michigan jurisprudence that a plaintiff “enjoys” the right to a jury trial in an ELCRA action and that the appellate courts have extended this right “to claims against the state or state agencies.” Therefore, the Court of Claims granted the plaintiff’s emergency motion and transferred the case back to Circuit Court.

The defendant appealed, arguing the Court of Claims erred in finding that it did not have exclusive jurisdiction over the ELCRA action.

 ‘Anzaldua’ Is Applicable

In addressing the defendant’s argument, the Court of Appeals relied on the Michigan Supreme Court’s decision in Anzaldua v Band, 457 Mich 530 (1998), which was an action brought under the Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq.).

The Supreme Court in Anzaldua found the plaintiff had a statutory right to a jury trial in a WPA action. In so ruling, the Supreme Court rejected Michigan State University’s argument that, even if a general jury right existed under the WPA, the university was immune from suit because it is an “arm of the state.” 

“Defendant has confused the test we use to determine whether the state is immune from liability with the test used for determining whether the state is immune from suit,” the Supreme Court stated in Anzaldua. “[T]he state’s sovereign immunity from liability and its immunity from suit are not the same.”

According to the Supreme Court, Michigan State University claimed the state’s sovereign immunity from a jury trial could be waived only by “express statutory enactment” or by “necessary inference from a statute.”

“They are incorrect,” the Supreme Court said in Anzaldua, noting that Michigan State University’s reliance on Mead v Public Service Commission, 303 Mich 168 (1942), was misplaced. “In Mead, we examined portions of the motor vehicle law …. In ruling on Mead, we overturned one of our own prior decisions, Miller v Manistee Co Bd of Rd Comm’rs, 297 Mich 487 … (1941). We held that Miller had given the language of the motor vehicle law too broad a construction when it extended liability to the state.”

However, “Mead does not concern the state’s immunity from suit,” the Supreme Court observed in Anzaldua. “Rather, the state was subject to suit in the Court of Claims, and we held merely that it was immune from liability under the act involved in that case.”

Emphasizing that immunity from suit and immunity from liability are distinct, the Supreme Court concluded in Anzaldua: “[T]he language from Mead to the effect that the state waives immunity only by express statutory enactment or by necessary inference applies only to the state’s immunity from liability. It has no application to the state’s immunity from suit, or to immunity from trial before a jury ….”

Similar Statutory Construction

The Court of Appeals continued by pointing out the WPA is constructed similarly to the ELCRA. Therefore, “we find our Supreme Court’s interpretation of the WPA [in Anzaldua] to be instructive for how the ELCRA should be interpreted,” the Court of Appeals wrote.

“To reiterate, defendant concedes on appeal that a jury trial right generally exists under the ELCRA,” the Court of Appeals said. “But like MSU in Anzaldua, defendant … argues that it is not subject to jury trial because it is an arm of the state. And like MSU’s argument in Anzaldua, defendant’s argument fails.”

According to the Court of Appeals, the Michigan Legislature has “expressly applied” the ELCRA to the state by including the state and its political subdivisions in the definition of “person” in MCL 37.2103 and has defined “employer” in MCL 37.2201(a) as “a person” with one or more employees. “Therefore, like the WPA, the ELCRA satisfies the Mead test for waiver of immunity from liability,” the Court of Appeals explained. “This conclusion is well grounded in our caselaw.”

Moreover, the Legislature intended for the state and its political subdivisions to be regulated by and subject to the ELCRA, the Court of Appeals said, noting that MCL 37.2801(2) allows a suit under the ELCRA to be brought in Circuit Court. “Nothing in the ELCRA indicates that the state is to be treated different from any other employer, indicating that ‘the Legislature chose to subject the state to suit in the circuit court rather than in the Court of Claims.’”

Based on the express language of the ELCRA, the Court of Appeals said the Legislature intended to submit the state to the jurisdiction of the Circuit Court. “And the court rules governing circuit court allow a party seeking money damages ‘to be tried by a jury upon request.’ … In other words, the Legislature waived the state’s immunity from jury trial in actions brought under the ELCRA.”

Accordingly, the Court of Claims did not err by transferring the case back to the Circuit Court, the Court of Appeals concluded.

An application for leave to appeal the decision in Doe v Dep’t of Transportation is currently pending in the Michigan Supreme Court (Case No. 157968).

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