Scalise v. Boy Scouts of America, Docket No. 244883.

• Decision Date: 02 March 2005
• Docket Number: Docket No. 244883.
• Parties: John E. SCALISE, Individually, and as Parent, Guardian, and Next Friend of Benjamin Scalise, a Minor, Plaintiffs-Appellants, v. BOY SCOUTS OF AMERICA, Lake Huron Area Council # 265, and Mt. Pleasant Public Schools, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

692 N.W.2d 858

265 Mich. App. 1

John E. SCALISE, Individually, and as Parent, Guardian, and Next Friend of Benjamin Scalise, a Minor, Plaintiffs-Appellants, v. BOY SCOUTS OF AMERICA, Lake Huron Area Council # 265, and Mt. Pleasant Public Schools, Defendants-Appellees.

Docket No. 244883.

Court of Appeals of Michigan.

Submitted April 20, 2004, at Lansing.

Decided January 20, 2005, at 9:00 a.m.

Released for Publication March 2, 2005.

Timothy J. Taylor, P.C. (by Timothy J. Taylor), Mt. Pleasant, for the plaintiffs.

Braun Kendrick Finkbeiner, P.L.C. (by Daniel S. Opperman), Saginaw, and Hughes Hubbard & Reed, L.L.P. (by George A. Davidson), New York City, for Boy Scouts of America.

Braun Kendrick Finkbeiner, P.L.C. (by Scott C. Strattard), Saginaw, for Mt. Pleasant Public Schools.

Before: ZAHRA, P.J., and SAAD and SCHUETTE, JJ.

SCHUETTE, J.

This case arises from the circuit court grant of summary disposition to defendants, Lake Huron Area Council, the local affiliate of Boy Scouts of America (Boy Scouts)¹ and Mt. Pleasant Public Schools (Mt. Pleasant), in a suit brought by plaintiffs, father and son. Plaintiffs father and son allege that they were excluded from a local Cub Scout group affiliated with Boy Scouts when the father refused to affirm the Boy Scouts' religious declaration. Plaintiffs charge that the relationship between defendants violated Michigan constitutional and statutory prohibitions on religious discrimination. The circuit court, in two opinions, granted defendants' motion for summary disposition under MCR 2.116(C)(10), dismissing plaintiff's case in its entirety. Plaintiffs now appeal as of right. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Boy Scouts is a Michigan nonprofit corporation chartered by the national association of Boy Scouts of America to support and organize scouting activities in nineteen counties in mid-Michigan, including Isabella County. Boy Scouts conducts scouting activities, including pack and den meetings of Cub Scouts, through local sponsorships, at times referred to as "charter partners," with a wide array of community organizations in the Mt. Pleasant area. These sponsoring groups are quite diverse, including a local business (DeWitt Lumber), fraternal groups (Borley Hamel VFW Post # 3033, Shepherd Rotary Club), and religious organizations and groups (Beal City Knights of Columbus, Sacred Heart Academy, Latter Day Saints and Rosebush United Methodist Church), two local school parent teacher organizations (PTO), and one local parent teacher association (PTA). In addition, a local school of Mt. Pleasant's, Rosebush Elementary School, was a "charter partner."² Before September 2000, it was the practice of a representative of Boy Scouts, with Mt. Pleasant's permission, to visit several of its elementary schools during school hours. The purpose of the visits was to speak with boys of scouting age about becoming Cub Scouts and possibly attending evening informational meetings with their parents. In September 2000, Mt. Pleasant notified Boy Scouts that these visits were no longer permissible.

Consistently with Mt. Pleasant's facilities use policy, community organizations were permitted to use school facilities when school was not in session. Among other groups,³ Boy Scouts used school facilities to hold its den and pack meetings or other scouting activities when school was not in session. In addition, Mt. Pleasant permitted community groups to post and distribute literature within the schools and to provide recruitment flyers for distribution to students. Boy Scouts provided informational literature and recruitment flyers for distribution through this system in Mt. Pleasant classrooms. In November 1997, Ben Scalise was a third-grader at Mt. Pleasant's Fancher Elementary. After bringing home a Boy Scout flyer distributed at Fancher, he and his father attended a Cub Scout gathering. At the meeting, Mr. Scalise volunteered to become a den leader. Later, having reviewed Boy Scouts bylaws and mission statement,⁴ Mr. Scalise learned that Boy Scout leaders were required to endorse the Boy Scouts' declaration of religious principle,⁵ and youth members, depending on their status as Boy Scouts or Cub Scouts, were required to recite either the Boy Scout Oath⁶ or the Cub Scout Promise⁷ and to abide by either the Scout Law⁸ or the Law of the Pack.⁹

In January 1998, Mr. Scalise sent Boy Scouts a letter explaining the declaration of religious principle to be repugnant to his humanist beliefs and requested an exemption from the requirement. Boy Scouts refused and revoked Mr. Scalise's membership. Subsequently, Mr. Scalise removed Ben from Boy Scouts. Thereafter, Mr. Scalise contacted Mt. Pleasant to voice his concerns about distribution of information in the school about a religious organization and requested that subsequent flyers include a disclaimer informing parents of the religious character of Boy Scouts. Later, in May 1999, after a Boy Scout representative visited Ben's classroom during school hours, Mr. Scalise again contacted Mt. Pleasant because the distributed flyers lacked the requested disclaimer. Mt. Pleasant subsequently requested that Boy Scouts include such a disclaimer, and it complied. In December 1999, unsatisfied with the disclaimer's language,¹⁰ Mr. Scalise again protested the distribution of Boy Scouts flyers. In October 2000, the Scalises filed suit against defendants.

In their initial complaint, plaintiffs alleged that the actions of Boy Scouts and its use of school facilities by Boy Scouts, with the permission of Mt. Pleasant, excessively entangled Mt. Pleasant in Boy Scouts' religious mission in violation of Michigan constitutional guarantees of equal protection and free exercise of religion, as contained in Const. 1963, art. 1, §§ 1 and 4, and of nondiscriminatory schools in art. 8, § 2. Further, plaintiff claimed that Boy Scouts' actions violated the Michigan Civil Rights Act, M.C.L. § 37.2101 et seq. Plaintiffs sought damages and injunctive relief.

In April 2000, plaintiffs and defendants filed cross-motions for summary disposition. In April 2001, plaintiffs filed an amended complaint alleging criminal violation of Michigan public accommodation laws, M.C.L. § 750.146 et seq., sometimes referred to as the equal accommodation act. In November 2001, the circuit court granted summary disposition to defendants on all claims except one. The trial court, citing Sherman v. Community Consolidated School Dist. 21, 8 F.3d 1160 (C.A.7, 1993), held that a local Boy Scout council was not a state actor and, therefore, would not make Boy Scouts liable under the Michigan Constitution's Equal Protection Clause, Const. 1963, art. 1, § 2, its Establishment and Free Exercise Clause, Const. 1963, art. 1, § 4, and art. 8, § 2. Further, the court held that Boy Scouts, as a private club, was exempt from the Michigan Civil Rights Act, M.C.L. § 37.2101 et seq., and was not a public accommodation as defined within M.C.L. § 750.146.

The circuit court held that Mt. Pleasant's policy,¹¹ which provided Boy Scouts access to school facilities and mailboxes, did not provide special treatment to Boy Scouts, did not compel or encourage the maintenance of Boy Scouts' policy, and thus did not make Mt. Pleasant a symbiotic partner with Boy Scouts in violation of the Equal Protection Clause. However, the circuit court did grant plaintiffs' motion for summary disposition relating to the Establishment Clause charge, finding defendants liable for the recruiting effort by Boy Scouts conducted during school hours.

In February 2002, both defendants moved to dismiss that portion of the November opinion and order that sustained the plaintiffs' claim for the Boy Scouts' visits during school hours. Plaintiffs moved to revise the opinion and order, reiterating their contention that Boy Scouts was in fact a state actor, and again requested damages to be awarded according to the Michigan Civil Rights Act. In the alternative, plaintiffs contended that Jones v. Powell, 462 Mich. 329, 612 N.W.2d 423 (2000), recognized judicially inferable damages for civil and constitutional rights violations. In response, defendants contended the Michigan Civil Rights Act, which requires a finding of state action, provided the only remedy for violations of such rights. Defendants argued that, because state action was not present here, Boy Scouts was not liable for any damages and thus the action should be dismissed.

In November 2002, the court denied plaintiffs' motion to revise the November 2001 opinion and order and granted defendants' motion to dismiss. The court reiterated that Boy Scouts was not a state actor and, thus, the Michigan Civil Rights Act provided no relief for plaintiffs. Further, the court held that Jones militated against judicially inferred damages when a legislative scheme existed to remedy plaintiffs' rights.

In response to the November 2002 order, plaintiffs appealed to this Court. This opinion will address plaintiffs' claims under the Michigan Constitution, including the Establishment Clause, Const. 1963, art. 1, § 4, and the Equal Protection Clause, Const. 1963, art. 1, § 2, as well as plaintiffs' claims under Michigan's civil rights and public accommodation statutes, M.C.L. § 37.2101 et seq. and 750.146 et seq. Plaintiffs also alleged that Boy Scouts was acting as a fraternity as proscribed by the Michigan School Code, M.C.L. § 380.1316. Because plaintiffs failed to make this final allegation in their initial or amended complaint, this issue is not properly before this Court and will not be addressed in this opinion.

II. STANDARD OF REVIEW

Summary disposition of all or part of a claim or defense may be granted when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10).

A motion for summary disposition under MCR 2.116(C)(10) tests whether there is...