Doe v. Dep't of Transp.

• Decision Date: 08 May 2018
• Docket Number: No. 338999,338999
• Citation: 324 Mich.App. 226,919 N.W.2d 670
• Parties: Jane DOE, Plaintiff–Appellee, v. DEPARTMENT OF TRANSPORTATION, Defendant–Appellant.
• Court: Court of Appeal of Michigan — District of US

324 Mich.App. 226

919 N.W.2d 670

Jane DOE, Plaintiff–Appellee,

v.DEPARTMENT OF TRANSPORTATION, Defendant–Appellant.

No. 338999

Court of Appeals of Michigan.

Submitted May 2, 2018, at Lansing.

Decided May 8, 2018, at 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Laura Moody, Chief Legal Counsel, and Michael J. Dittenber, Assistant Attorney General, for the Department of Transportation.

Ringsmuth Wuori PLLC (by Blake K. Ringsmuth and Thomas J. Wuori ) for Jane Doe.

Before: Shapiro, P.J., and M. J. Kelly and O'Brien, JJ.

Per Curiam.

Defendant appeals as of right the opinion and order of the Court of Claims granting plaintiff's motion to transfer the case back to the circuit court, denying as moot defendant's motion for summary disposition, and denying plaintiff's motion for sanctions. Defendant only appeals the order with respect to its granting plaintiff's motion to transfer and denying defendant's motion for summary disposition. We affirm.

Plaintiff filed her original complaint in the Ingham Circuit Court on August 31, 2015, alleging that while employed by defendant, she was sexually harassed by her manager in violation of the Elliott–Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq . On April 1, 2016, plaintiff filed a first amended complaint alleging sexual harassment and illegal retaliation by defendant in violation of the ELCRA. Both complaints included a jury demand. On May 25, 2017, defendant filed a notice of transfer to the Court of Claims, "effective immediately," pursuant to MCL 600.6404(3). On the same day, defendant moved for summary disposition under MCR 2.116(C)(7), arguing that it was entitled to summary disposition because plaintiff failed to comply with the requirements for filing in the Court of Claims.

On June 5, 2017, plaintiff filed an emergency motion to transfer the case back to the circuit court, arguing that the jury-trial exception in MCL 600.6421(1) to the exclusive jurisdiction of the Court of Claims applied. In response to plaintiff's motion, defendant argued that the jury-trial exception did not apply because plaintiff was not entitled to a jury trial in an action under the ELCRA against a state defendant.

On June 20, 2017, the Court of Claims issued its opinion. The court found that it was "well established in this state's jurisprudence that [plaintiff] enjoys" the right to a jury trial in an action under the ELCRA and that Michigan's appellate courts had extended this right "to claims against the state or state agencies." The Court of Claims concluded that because a jury-trial right existed in this case, the circuit court and the Court of Claims had concurrent jurisdiction. Accordingly, the court granted plaintiff's motion for transfer to the circuit court and denied as moot defendant's motion for summary disposition.

This appeal followed.

Defendant argues that the Court of Claims erred by transferring the case back to the circuit court because the Court of Claims had exclusive jurisdiction. MCL 600.6419(1) states, in pertinent part, "Except as provided in sections 6421 and 6440, the jurisdiction of the court of claims, as conferred upon it by this chapter, is exclusive." If an exception does not apply, then the Court of Claims has exclusive jurisdiction over this action pursuant to MCL 600.6419(1)(a).¹ The only exception that may apply to the Court of Claims' exclusive jurisdiction is MCL 600.6421(1), which provides as follows:

Nothing in this chapter eliminates or creates any right a party may have to a trial by jury, including any right that existed before November 12, 2013. Nothing in this chapter deprives the circuit, district, or probate court of jurisdiction to hear and determine a claim for which there is a right to a trial by jury as otherwise provided by law, including a claim against an individual employee of this state for which there is a right to a trial by jury as otherwise provided by law. Except as otherwise provided in this section, if a party has the right to a trial by jury and asserts that right as required by law, the claim may be heard and determined by a circuit, district, or probate court in the appropriate venue.

If plaintiff had the right to a jury trial in her case against defendant, defendant does not contest that transfer back to the circuit court was otherwise proper.

On appeal, defendant concedes that a right to a jury trial exists under the ELCRA but argues that this right does not extend to state defendants. Defendant contends that because a plaintiff does not have an established right to a jury trial in an action under the ELCRA when the state is the defendant, the Court of Claims had exclusive jurisdiction. This argument fails because the question is not whether a plaintiff enjoys the right to a jury trial against a state defendant in an action under the ELCRA; plaintiffs already enjoy the right to a jury trial under the ELCRA. The proper inquiry is whether the Legislature waived the state's immunity from jury trial in the ELCRA.

A challenge to the jurisdiction of the Court of Claims requires interpretation of the Court of Claims Act, MCL 600.6401 et seq., which presents a statutory question that is reviewed de novo. Parkwood Ltd. Dividend Housing Ass'n v. State Housing Dev. Auth. , 468 Mich. 763, 767, 664 N.W.2d 185 (2003). The availability of governmental immunity presents a question of law that is reviewed de novo. Norris v. Lincoln Park Police Officers , 292 Mich. App. 574, 578, 808 N.W.2d 578 (2011). "Issues of statutory interpretation are questions of law that are reviewed de novo." Klooster v. City of Charlevoix , 488 Mich. 289, 295, 795 N.W.2d 578 (2011).

" ‘The State, as sovereign, is immune from suit save as it consents to be sued, and any relinquishment of sovereign immunity must be strictly interpreted.’ " Ross v. Consumers Power Co. (On Rehearing) , 420 Mich. 567, 601, 363 N.W.2d 641 (1984), quoting Manion v. State Hwy. Comm’r , 303 Mich. 1, 19, 5 N.W.2d 527 (1942).

In addressing the issue before us, we find instructive our Supreme Court's reasoning in Anzaldua v. Band , 457 Mich. 530, 578 N.W.2d 306 (1998).² Anzalduainvolved the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq . After finding that a plaintiff had a statutory right to a jury trial in an action under the WPA, the Michigan Supreme Court addressed the argument of the defendant Michigan State University (MSU) that "even if a jury right exists generally under the act, MSU is immune from suit before a jury because it is an arm of the state." Anzaldua , 457 Mich. at 550, 578 N.W.2d 306. Our Supreme Court rejected this argument, reasoning as follows:

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 . As the Court noted in Ross v. Consumers Power Co. (On Rehearing ), the state's sovereign immunity from liability and its immunity from suit are not the same.

Defendant MSU and amici curiae argue that the state's sovereign immunity from a trial by jury can be waived only by "express statutory enactment or by necessary inference from a statute." They are incorrect. The quoted language comes from this Court's opinion in Mead v. Public Service Comm. , 303 Mich. 168, 173, 5 N.W.2d 740 (1942). In Mead , we examined portions of the motor vehicle law, 1929 CL 4724. In ruling on Mead , we overturned one of our own prior decisions, Miller v. Manistee Co. Bd. of Rd. Comm'rs , 297 Mich. 487, 298 N.W. 105 (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. Mead , supra at 172–173 .

In Miller , the Court had construed the motor vehicle law to waive the state's immunity from liability as the owner of a vehicle. Id . at 490 . However, the motor vehicle law made only the driver of a vehicle liable. The act provided:

"The provisions of this act applicable to the drivers of vehicles upon the highways, shall apply to the drivers of all vehicles owned or operated by this State or any county, city, town, district or any other political subdivision of the State subject to such specific exceptions as are set forth in this act." [ Mead , supra at 172–173 , quoting 1929 CL 4724.]

In overruling Miller , the Court in Mead explained:

It is sufficient to note that the above-quoted portion of the statute by its express terms affects only the duties and liabilities of drivers. It does not enlarge or modify the duties or liabilities of the State as owner of a motor vehicle. [ Id . at 173, 5 N.W.2d 740.]

The motor vehicle law did not, by its express terms or by necessary implication, provide liability for the state as an owner. Therefore, we held that the state had not waived its immunity to liability. Id . at 173–174, 5 N.W.2d 740.

The Whistleblowers' Protection Act satisfies the Mead test for waiver of immunity from liability. The Legislature expressly applied the act to the state by including the state and its political subdivisions in the definition of "employer." See MCL 15.361(b) ; MSA 17.428(1)(b). Because the state is expressly named in the act, it is within the act's coverage.

However, Mead does not provide a test for determining whether a jury right exists against the state. The Court of Appeals dissent cited Mead for the proposition that the state's immunity from suit before a jury could be waived only by express statutory enactment or by necessary inference. [ Anzaldua v. Band , 216 Mich. App. 561, 590, 550 N.W.2d 544 (1996) ] ( O'CONNELL , J., dissenting). However, Mead does not concern the state's immunity from suit. 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. As we noted above, immunity from suit and immunity from liability are distinct matters. See Ross , supra at 601, 363 N.W.2d 641.

Thus, the language from Mead to the effect that the state waives immunity only

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