Littsey v. Board of Governors of Wayne State University

• Citation: 310 N.W.2d 399,108 Mich.App. 406
• Decision Date: 05 August 1981
• Docket Number: Docket No. 48999
• Parties: Keith LITTSEY, Plaintiff-Appellant, v. BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 399

310 N.W.2d 399

108 Mich.App. 406

Keith LITTSEY, Plaintiff-Appellant, v. BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, Defendant-Appellee.

Docket No. 48999.

Court of Appeals of Michigan.

Aug. 5, 1981.

Released for Publication Sept. 28, 1981.

Lawrence Ellenbogen, Southfield, for plaintiff-appellant.

Kenneth A. McKanders, Elmer L. Roller, Detroit, for defendant-appellee.

Before KAUFMAN, P. J., and KELLY and CYNAR, JJ.

KAUFMAN, Presiding Judge.

Plaintiff appeals from a grant of accelerated and summary judgment by the Wayne County Circuit Court.

Plaintiff initiated this cause in Wayne County Circuit Court on July 25, 1979. This action was premised on alleged violations of the Michigan Handicappers' Civil Rights Act, M.C.L. § 37.1101 et seq.; M.S.A. § 3.550(101) et seq., by defendant, which resulted in plaintiff's dismissal from the Wayne State University Law School.

In his complaint, plaintiff alleged that he had lost substantially all of the hearing in his left ear because of the amputation of that ear drum. During the fall semester of 1977, plaintiff requested permission from two of his professors as well as from a law school dean to tape record specific lectures because of his hearing impediment. Plaintiff claims that such permission was denied by one professor and that the dean, while giving permission to plaintiff to tape record lectures, did not send a memo notifying plaintiff's professors that such accommodation should be made. Plaintiff asserts that as a result of his hearing problems, plaintiff received a C minus in one course and withdrew from the other. Plaintiff prayed for an injunctive order restoring him to law school and further claimed damages in tort.

Defendant responded by way of motions for accelerated and/or summary judgment. Defendant contended that only the Court of Claims had jurisdiction to hear this cause of action against a state agency, according to M.C.L. § 600.6419; M.S.A. § 27A.6419. One portion of the motion for summary judgment was premised on GCR 1963, 117.2(1). Defendant alleged that plaintiff had failed to state a claim upon which relief could be granted, in that plaintiff had misconstrued the Handicappers' Civil Rights Act (hereinafter HCRA) as creating a duty affirmatively to accommodate handicapped law students. The other portion of the motion for summary judgment was based upon GCR 1963, 117.2(3), the lack of existence of a genuine issue of material fact. Defendant argued that plaintiff failed to make any causal connection between his handicap and his termination as a law student.

Defendant attached various affidavits to its motions, including one by evidence professor Ralph Slovenko. Professor Slovenko stated that while he remembered a student asking permission to tape, he did not recall that such student ever represented that he had an auditory problem which prevented him from properly hearing lectures. Plaintiff's affidavit and objection to defendant's motions set forth the history and extent of his hearing problems. In his affidavit, plaintiff reiterated his attempts to gain approval to use his tape recorder. At the time he made such attempts, his left ear was fully bandaged because of a recent operation. Plaintiff related his hearing deficiency to his lack of success in law school during the semester in question, which was his last, because of his poor grades.

In granting accelerated judgment, the trial court concluded that the Court of Claims was the proper forum in which to bring this action.

The trial court also granted defendant's motion for summary judgment, based on GCR 1963, 117.2(3) and (1). Plaintiff brings this appeal as of right, pursuant to GCR 1963, 806.1.

Plaintiff first contends that the trial court erred in granting accelerated judgment on the basis that an action under the HCRA against a state agency must be initiated in the Court of Claims.

The Court of Claims has exclusive jurisdiction over claims against the state. M.C.L. § 600.6419; M.S.A. § 27A.6419. This includes claims against a state university. Fox v. Board of Regents of the University of Michigan, 375 Mich. 238, 134 N.W.2d 146 (1965); Sprik v. Regents of the University of Michigan, 43 Mich.App. 178, 204 N.W.2d 62 (1972); aff'd 390 Mich. 84, 210 N.W.2d 332 (1973).

M.C.L. § 600.6419(4); M.S.A. § 27A.6419(4) limits the jurisdiction of the Court of Claims as follows:

"(4) This chapter shall not be construed so as to deprive the circuit courts of this state of jurisdiction over actions brought by the taxpayer under the provisions of Act No. 167 of the Public Acts of 1933 or any other actions against state agencies based upon the statutes of the state of Michigan in such case made and provided, which expressly confer jurisdiction thereof upon the circuit courts, nor of the proceedings to review findings as provided in Act No. 1 of the Public Acts of the Extra Session of 1936, or any other similar proceedings expressly authorized by the statutes of the state of Michigan in such case made and provided." (Emphasis added.)

The Court of Claims is a "legislative court" and not a "constitutional court" and derives its powers only from the act of the Legislature and is subject to the limitations therein imposed. Manion v. State Highway Comm'r., 303 Mich. 1, 5 N.W.2d 527 (1942), cert. den. 317 U.S. 677, 63 S.Ct. 159, 87 L.Ed. 543 (1942). The Legislature created a Court of Claims as a substitute "for the 'board of State auditors' and the 'State administrative board' for the purpose of hearing and determining 'all claims and demands, liquidated and unliquidated, ex contractu and ex delicto against the State' * * * ". Id., 20, 5 N.W.2d 527; Taylor v. Auditor General, 360 Mich. 146, 150, 103 N.W.2d 769 (1960). Thus, the jurisdiction granted to the Court of Claims is "narrow and limited, substituting, merely, a 'court' of claims for the superseded claims jurisdiction of the earlier boards". Id.

The HCRA sets forth the following complaint procedure:

"Sec. 605. A complaint alleging an act prohibited by this act shall be subject to the same procedures as a complaint alleging an unfair employment practice under Act No. 251 of the Public Acts of 1955, as amended, being sections 423.301 to 423.311 of the Michigan Compiled Laws, or under the existing state law dealing with unfair employment practices if Act No. 251 of the Public Acts of 1951, as amended, is repealed." M.C.L. § 37.1605; M.S.A. § 3.550(605).

1955 P.A. 251 was part of the former Michigan State Fair Employment Practices Act, which was repealed by 1976 P.A. 453, effective March 31, 1977. At the same time that 1955 P.A. 251 was repealed, a new act, known as the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq., was passed. The Act provides the following complaint procedure:

"Sec. 801(1) A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both.

"(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or has his principal place of business.

"(3) As used in subsection (1), 'damages' means damages for injury or loss caused by each violation of this act, including reasonable attorney's fees." M.C.L. § 37.2801; M.S.A. § 3.548(801).

This Court cannot accept defendant's contention on appeal that § 801 is strictly a venue statute, not affecting the exclusive jurisdiction of the Court of Claims in actions against a state university. Actions brought pursuant to either the HCRA or the Elliot-Larsen Civil Rights Act are constitutional claims. Under the latter act, the circuit courts have jurisdiction, and § 605 of the HCRA states that a complaint filed under the HCRA must comport with the procedural provisions of the existing state law dealing with fair employment practices, that is, the Elliot-Larsen act. It is, therefore, our opinion that the Court of Claims would have no jurisdiction over the instant case. For this reason, the trial court erred in granting defendant's motion for accelerated judgment on the ground that the Court of Claims had exclusive jurisdiction over the subject cause.

Plaintiff next argues that the trial court erred in finding no genuine issue as to any material fact and in entering summary judgment pursuant to GCR 117.2(3).

The Michigan HCRA provides in pertinent part:

"Sec. 402. An educational institution shall not:

"(a) Discriminate in any manner in the full utilization of or benefit from the institution, or the services provided and rendered thereby to an individual because of a handicap that is unrelated to the individual's ability to utilize and benefit from the institution or its services, or because of the use by an individual of adaptive devices or aids.

"(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the against an individual seeking admission as a student in the terms, conditions, and privileges of the institution, because of a handicap that is unrelated to the individual's ability to utilize and benefit from the institution or because of the use by an individual of adaptive devices or aids." M.C.L. § 37.1402; M.S.A. § 3.550(402).

The trial court's order of November 30, 1979, granted defendant's motion for summary judgment pursuant to GCR 1963, 117.2(1) (failure to state a claim) and (3) 117.2(3) (no genuine issue of material fact).

The events at issue are those which occurred during the fall, 1977, semester, after plaintiff had been readmitted to law school provisionally, following termination in June, 1976, because of unsatisfactory academic performance. Plaintiff's readmission was expressly conditioned upon his achievement of a 2.33 grade point average during the fall term. Plaintiff had undergone ear surgery in ...