JANE A DOE V YOUNG MARINES OF THE MARINE CORPS LEAGUE
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STATE OF MICHIGAN
COURT OF APPEALS
JANE A. DOE, by her Next Friend, JANE B.
DOE,
FOR PUBLICATION
December 18, 2007
9:05 a.m.
Plaintiff-Appellee,
v
YOUNG MARINES OF THE MARINE CORPS
LEAGUE and WADE BOYD,
Defendants-Appellants,
No. 275579
Grand Traverse Circuit Court
LC No. 06-025174-CZ
Advance Sheets Version
and
JOSHUA A. SMITH,
Defendant.
Before: Donofrio, P.J., and Sawyer and Cavanagh, JJ.
PER CURIAM.
Defendants Young Marines of the Marine Corps League and Wade Boyd (hereafter
defendants) appeal by leave granted from orders of the circuit court granting plaintiff's motion to
strike affirmative defenses and denying in part defendants' motion for summary disposition. We
reverse.
Defendant Young Marines describes itself as "a private, non-profit corporation run by
volunteers whose purpose is to promote the mental, moral and physical development of its
members, who are ages eight through high school." Defendant Boyd is the commanding officer
of the Traverse City Young Marines. Plaintiff and defendant Joshua A. Smith were individual
members of the Traverse City Young Marines at the time the incidents that form the basis of this
action occurred. Specifically, plaintiff was a member from April 2003 until December 2005.
Her complaint alleges that on two occasions in 2005, defendant Smith inappropriately touched
her during Young Marines activities. Plaintiff further alleges that the response by the Young
Marines, and Boyd in particular, gave rise to her decision to quit the group.
The first incident occurred in November 2005 at the Marine Corps birthday ball, where
plaintiff and Smith were participating as members of the color guard. While waiting with a
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group of others to perform their color-guard duty, they were discussing the ribbons on their
uniforms, which were located above the uniform's breast pocket. Smith pointed to various
ribbons and asked what they were for. At one point, according to plaintiff, he placed two fingers
on her breast while touching a ribbon. Plaintiff pushed his hand way and told him not to touch
her. Plaintiff did nothing further regarding the incident at the time.
The second incident occurred on December 1, 2005, at a regular Thursday evening
meeting at the Army Reserve Center. Smith was participating in a relay race in the gym and
plaintiff was standing nearby observing. Smith ran across the line, slid into plaintiff, and placed
his hand on her right breast. Plaintiff reported this incident to one of the adult supervisors, Linda
Deeren, who reported it to others. Apparently because Boyd was not present at the time, no
action was immediately taken. Plaintiff resumed her activities for the rest of the meeting.
Deeren drove plaintiff home that evening and spoke with plaintiff's mother regarding the
incident. After Deeren left, plaintiff and her mother discussed the incident and decided to
contact the police.
The Young Marines commenced an investigation into the incident by a board of inquiry.
Plaintiff made a statement to the board. Plaintiff states that at a meeting on December 15 she
and her mother asked Boyd what was going to happen. Boyd responded, "Nothing because of
what happened today," referencing Smith's being criminally charged in the incident. Plaintiff's
mother told Boyd that she understood that Smith had admitted that he had intentionally, rather
than accidentally, touched plaintiff. According to plaintiff, after that meeting, Deeren told them
that the board was going to rule the incident an accident. A week later, plaintiff submitted a
letter of resignation to Boyd, stating that she was leaving the group "because of the lack of
support I have received concerning the recent incident with Josh Smith." Ultimately, Smith
pleaded guilty of a misdemeanor in the criminal case in February 2006, and was sentenced to
two years' probation, with 45 days in jail. One of the conditions of probation was for Smith not
to participate in the Young Marines program.
Plaintiff commenced the instant action in April 2006, alleging a denial of access to a
place of public accommodation in violation of the Michigan Civil Rights Act, MCL 37.2101 et
seq., retaliation, intentional infliction of emotional distress, and negligent supervision.
Defendants answered, pleading numerous affirmative defenses. Plaintiff moved to strike the
affirmative defenses for failure to plead facts in support of them. The trial court granted the
motion. Defendants then moved for summary disposition, which the trial court, in part, denied.
On appeal, defendants argue that the trial court erred both in granting plaintiff's motion to
strike the affirmative defenses and in denying defendants' motion for summary disposition. We
turn first to the question whether the trial court erred in denying summary disposition, beginning
with the claim of a denial of access to a place of public accommodation.
MCL 37.2302 provides, in pertinent part, as follows:
Except where permitted by law, a person shall not:
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(a) Deny an individual the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of a place of public
accommodation or public service because of religion, race, color, national origin,
age, sex, or marital status.
MCL 37.2301 defines "place of public accommodation" and "public service" as follows:
(a) "Place of public accommodation" means a business, or an educational,
refreshment, entertainment, recreation, health, or transportation facility, or
institution of any kind, whether licensed or not, whose goods, services, facilities,
privileges, advantages, or accommodations are extended, offered, sold, or
otherwise made available to the public. Place of public accommodation also
includes the facilities of the following private clubs:
(i) A country club or golf club.
(ii) A boating or yachting club.
(iii) A sports or athletic club.
(iv) A dining club, except a dining club that in good faith limits its
membership to the members of a particular religion for the purpose of furthering
the teachings or principles of that religion and not for the purpose of excluding
individuals of a particular gender, race, or color.
(b) "Public service" means a public facility, department, agency, board, or
commission, owned, operated, or managed by or on behalf of the state, a political
subdivision, or an agency thereof or a tax exempt private agency established to
provide service to the public, except that public service does not include a state or
county correctional facility with respect to actions and decisions regarding an
individual serving a sentence of imprisonment.
Also relevant is MCL 37.2303, which specifically excludes coverage of private clubs by the
Civil Rights Act:
This article shall not apply to a private club, or other establishment not in
fact open to the public, except to the extent that the goods, services, facilities,
privileges, advantages, or accommodations of the private club or establishment
are made available to the customers or patrons of another establishment that is a
place of public accommodation or is licensed by the state under Act No. 8 of the
Public Acts of the Extra Session of 1933, being sections 436.1 through 436.58 of
the Michigan Compiled Laws. This section shall not apply to a private club that
is otherwise defined as a place of public accommodation in this article.
It is undisputed that the Young Marines is a private, tax-exempt organization. Therefore,
under the terms of MCL 37.2303, the public accommodations provisions of the Civil Rights Act
do not apply to the Young Marines unless one of the two exceptions within the section applies.
The first exception applies where the private club's "goods, services, facilities, privileges,
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advantages, or accommodations" are made available to customers or patrons of an establishment
that is a place of public accommodation or is licensed under MCL 436.1 et seq. There is no
indication that the Young Marines makes its services available to anyone other than its
members.1 The second exception, for private clubs otherwise defined as a place of public
accommodation, is likewise inapplicable because the Young Marines is not a country club, golf
club, boating or yachting club, sports or athletic club, or a dining club. MCL 37.2301(a).
Where statutory language is clear and unambiguous, judicial construction is neither
permitted nor required. Diamond v Witherspoon, 265 Mich App 673, 684; 696 NW2d 770
(2005). And we are to read nothing into an unambiguous statute that is not within the
Legislature's manifest intent as expressed by the words of the statute itself. Id. at 685. The
Legislature has clearly and unambiguously expressed that private clubs do not come within the
public accommodations provisions of the Civil Rights Act unless the private club falls within one
of the clearly expressed exceptions. The Young Marines does not fall within any of those
exceptions. Accordingly, the public accommodations provisions do not apply here.
Moreover, the cases relied on by plaintiff are inapplicable to this case. She cites the
recent Michigan Supreme Court decision in Haynes v Neshewat, 477 Mich 29, 38; 729 NW2d
488 (2007), for the proposition that the Civil Rights Act protects individuals, not the public, and
that a place's services and so forth need not be offered to the public in order for it to be a place of
public accommodation. Haynes does not, however, define what is a place of public
accommodation. Rather, it holds that discrimination in a place of public accommodation against
an individual is unlawful without regard to whether the goods, services, facilities, privileges,
advantages, or accommodations are offered to the public. The decision offers no guidance on
whether a private organization fits within the statutory definition of "place of public
accommodation".
Plaintiff also relies on two federal decisions interpreting the Michigan Civil Rights Act,
Communities for Equity v Michigan High School Athletic Ass'n, 459 F3d 676 (CA 6, 2006), and
Rogers v Int'l Ass'n of Lions Clubs, 636 F Supp 1476 (ED Mich, 1986). In Communities for
Equity, supra at 697, the United States Court of Appeals for the Sixth Circuit relied heavily on
Rogers in concluding that the Michigan High School Athletic Association was a place of public
accommodation:
MHSAA argues that the district court erred in finding that MHSAA serves
as a "public accommodation" and provides a "public service." The case most
directly on point on these issues is Rogers v. International Association of Lions
Clubs, 636 F. Supp. 1476, 1479 (E.D. Mich. 1986), where the district court found
that a Lions Club qualified as a place of public accommodation providing public
services. The Lions Club qualified as "a place of public accommodation" because
1
The statute referred to in § 303, MCL 436.1 et seq., is also inapplicable because that act has
been repealed. Furthermore, it was formerly the liquor control act and, therefore, presumably
would not have had application to an organization made up of young persons.
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its meetings are held in a public place (a Howard Johnson's restaurant), the
meetings are open to the public, and the volunteer efforts of the Lions Club's
members are made available to the public. Id. As the district court noted,
MHSAA sponsors championship athletic tournament events that are held in public
places and open to members of the general public. Cmtys. for Equity, 178 F.
Supp. 2d [805] at 859 [WD Mich, 2001]. Competitions are also held in public
places for which MHSAA facilitates the scheduling. The district court in Rogers
further considered whether the Lions Club provided a "public service." 636 F.
Supp. at 1479. After noting that the Club is a tax-exempt, nonprofit private
agency whose stated purpose is to provide volunteer public service through its
members, the court concluded that the Club provides a public service. Id.
MHSAA is likewise a tax-exempt entity that provides a service to the public—
"the organization of interscholastic athletics in the state's schools." Cmtys. for
Equity, 178 F. Supp. 2d at 859. The district court therefore determined that
MHSAA qualifies as providing a "public service" under Michigan law.
Turning to the Rogers decision, Rogers concluded that a Lions Club was a place of public
accommodation under the Michigan Civil Rights Act and did not fall within the exemption for
private clubs under MCL 37.2303:
This statutory provision has not been interpreted by the Michigan courts.
However, the United States Supreme Court has given some guidance as to what
factors should be considered in deciding when a club is private. Roberts v. United
States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984), citing
Nesmith v. Young Men's Christian Ass'n, 397 F.2d 96 (4th Cir. 1968), and
National Organization for Women v. Little League Baseball, Inc., 127 N.J. Super.
522, 318 A.2d 33, aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974). These factors
include the organization's size, selectivity, public services offered, and use of
public facilities. [Rogers, supra at 1479.]
We find little guidance in these federal decisions. We are not bound to follow a federal
court's interpretation of state law and we are not persuaded that those decisions correctly
interpret Michigan law. The fundamental flaw of Rogers is that it reads Roberts as listing factors
to be considered when determining whether a club is private. Roberts did no such thing.
In Roberts, the Minnesota Department of Human Rights had determined that the Jaycees
were a place of public accommodation under the Minnesota Human Rights Act and that the
Jaycees' policy of preventing its local chapters from accepting women as full members of the
organization violated the state law. Roberts, supra at 615-616. The Jaycees sought relief in the
federal courts, arguing that in applying the state statute to the Jaycees, Minnesota violated the
Jaycees' federal constitutional rights to freedom of association under the First Amendment and
that the statute was unconstitutionally vague in violation of the Due Process Clause of the
Fourteenth Amendment. Id. at 616-617.
The factors discussed by the Supreme Court were considered in the context of
determining whether the organization's association rights were affected, not whether the
organization was a private club, as Rogers suggests:
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We note only that factors that may be relevant include size, purpose,
policies, selectivity, congeniality, and other characteristics that in a particular case
may be pertinent. In this case, however, several features of the Jaycees clearly
place the organization outside of the category of relationships worthy of this kind
of constitutional protection. [Id. at 620.]
The court did later in its opinion turn to consideration of the factors of "the organization's size,
selectivity, commercial nature, and use of public facilities—typically employed in determining
the applicability of state and federal antidiscrimination statutes to the membership policies of
assertedly private clubs." Id. at 629. But it did so in the context of considering whether the
Minnesota statute was unconstitutionally vague and overbroad. In essence, the court concluded
that the statute, as interpreted by the Minnesota Supreme Court with reference to those criteria,
was not unconstitutionally vague.
But, contrary to the assertion in Rogers, none of these factors tells us anything about
whether the Michigan Civil Rights Act defines a place of public accommodation to include
private organizations such as the Young Marines, or, for that matter, the Lions Club or the
Michigan High School Athletic Association. Rather, Roberts merely addresses the question
whether, in light of those criteria, a state may constitutionally apply a public accommodations
statute to an otherwise private organization. In short, Roberts, Rogers, and Communities for
Equity at most tell us whether the Michigan Civil Rights Act could be applied to the Young
Marines. It tells us nothing about whether the Michigan Civil Rights Act does apply to the
Young Marines.
And for the reasons stated above, we conclude that the Young Marines is not a place of
public accommodation under the Michigan Civil Rights Act and, therefore, that article 3 of the
Civil Rights Act does not apply. Accordingly, the trial court erred in denying summary
disposition to defendants on the Civil Rights Act claims.
Because there was no violation of the Civil Rights Act, plaintiff cannot make a claim
under MCL 37.2701 that defendants retaliated against her for opposing a violation of the act.
Therefore, the trial court should have dismissed this claim as well.
This leaves plaintiff's claim for negligent supervision. This issue is controlled by the
Supreme Court's decision in Murdock v Higgins, 454 Mich 46, 54; 559 NW2d 639 (1997), in
which the Court stated:
Generally, an individual has no duty to protect another who is endangered
by a third person's conduct. Where there is a duty to protect an individual from a
harm by a third person, that duty to exercise reasonable care arises from a "special
relationship" either between the defendant and the victim, or the defendant and
the third party who caused the injury. Marcelletti v Bathani, 198 Mich App 655,
664; 500 NW2d 124 (1993). Such a special relationship must be sufficiently
strong to require a defendant to take action to benefit the injured party. Samson v
Saginaw Professional Bldg, Inc, 393 Mich 393, 406; 224 NW2d 843 (1975).
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In this case, a special relationship would exist if the plaintiff had entrusted
himself to the protection and control of defendant Higgins and, in so doing, lost
the ability to protect himself. Dykema v Gus Macker, 196 Mich App 6, 9; 492
NW2d 472 (1992), citing Williams v Cunningham Drug Stores, Inc, 429 Mich
495, 499; 418 NW2d 381 (1988).
Plaintiff sets forth no argument in support of a conclusion that a special relationship existed to
the extent that she surrendered herself to the control of defendants and lost the ability to protect
herself. Accordingly, defendants were entitled to summary disposition on this claim as well.
Because we conclude that the trial court should have granted defendants' motion for
summary disposition, we need not determine whether the trial court erred in striking defendants'
affirmative defenses. On remand, the trial court shall enter an order of summary disposition in
favor of defendants Young Marines and Boyd.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Defendants may tax costs.
/s/ Pat M. Donofrio
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
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