Opinion
SC: 163588 COA: 346348
12-09-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Deonton Autez ROGERS, Defendant-Appellant.
Order
By order of February 4, 2022, the application for leave to appeal the August 5, 2021 judgment of the Court of Appeals was held in abeyance pending the decision in Rouch World, LLC v Dep't of Civil Rights (Docket No. 162482). On order of the Court, the case having been decided on July 29, 2022, 510 Mich ––––, ––– N.W.2d ––––, 2022 WL 3007805 (2022), the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Viviano, J. (dissenting).
I dissent from the Court's denial order in this case, which involves the shooting of a transgender individual. I would instead grant leave to decide the important questions raised by this case.
Defendant was charged under MCL 750.147b(1)(a). That statute states in relevant part:
(1) A person is guilty of ethnic intimidation if that person maliciously, and with specific intent to intimidate or harass another person because of that person's race, color, religion, gender, or national origin, does any of the following:
(a) Causes physical contact with another person.
* * *
(c) Threatens, by word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to believe that an act described in subdivision (a) or (b) will occur.
The circuit court quashed the charge for two alternative reasons: (1) the term "gender" does not apply to transgender individuals, and (2) defendant never "caused" physical contact—as alleged in the complaint, the victim initiated contact by grabbing defendant's hand that held the gun. After the Court of Appeals affirmed, we remanded for reconsideration in light of Bostock v Clayton Co, Georgia , 590 U.S. ––––, 140 S Ct 1731, 207 L.Ed.2d 218 (2020). Bostock held that Title VII of the Civil Rights Act—making it unlawful to "discriminate against any individual with respect to [employment matters] because of such individual's ... sex," 42 USC 2000e-2(a)(1) —applied to discrimination against homosexual and transgender individuals. Bostock , 590 U.S. at ––––, 140 S Ct at 1737. Relying on Bostock here, the Court of Appeals reversed on remand, determining that while the term "gender" did not encompass gender identity, discrimination on the basis of gender identity will always involve discrimination on the basis of "gender." Further, with regard to the physical-contact requirement, the Court of Appeals noted that the statute does not require a defendant to initiate the contact. It was sufficient that defendant brandished his gun and threatened the victim, thus leading to the struggle.
After the Court of Appeals issued its decision, this Court adopted Bostock for purposes of our civil rights law in Rouch World, LLC v Dep't of Civil Rights , 510 Mich ––––, ––– N.W.2d ––––, 2022 WL 3007805 (2022) (Docket No. 162482). The Court held that the prohibition of discrimination "because of ... sex" in the Elliott-Larsen Civil Rights Act necessarily "encompasses discrimination on the basis of sexual orientation." Rouch World , 510 Mich at ––––, ––– N.W.2d at ––––, slip op. at 1. The Court did not address whether the statute was applicable to transgender individuals. I dissented because the statutory language "requires that the defendant maintain some prejudice, bias, animus, or belief about ‘sex’ or the other characteristics protected by the statute." Id. at ––––, ––– N.W.2d at ––––, slip op. at 1 ( VIVIANO , J., dissenting).
I would grant leave in the present case to determine whether MCL 750.147b(1)(a) applies to transgender individuals. Arguably, this presents a somewhat closer question than Rouch World because discrimination against transgender individuals might be seen to relate to those individuals’ "gender" and thus fall within the statute. On the other hand, under the reasoning of my dissent in Rouch World , it is not clear that discrimination against a transgender individual could be said to arise from animus against one gender or the other, i.e., animus or prejudice against men as men or women as women. I would also grant leave to determine whether defendant caused contact under the statute. This represents another close question that this Court should address. While the Court of Appeals is correct that the statute does not expressly require the defendant to initiate the contact, it is not clear when a defendant's conduct can be said to "cause" the victim to initiate contact, thus satisfying the statute. The lack of clarity and potential breadth of the statute requires this Court's close examination.
For these reasons, I dissent.