ALMA WHEELER SMITH

CHAIR
STATE OF MICHIGAN
GRETCHEN WHITMER MICHIGAN CIVIL RIGHTS COMMISSION STACIE CLAYTON
GOVERNOR LANSING VICE CHAIR

February 28, 2019

Hon. Dana Nessel, Attorney General

G. Mennen Williams Building
525 W. Ottawa St.
Lansing MI 48909

Dear Attorney General Nessel,

Pursuant to a resolution adopted by the Michigan Civil Rights Commission on February 1, 2019
(incorporated by reference), it is requested that you issue a formal opinion clarifying the Commission’s
authority to interpret Michigan civil rights laws, and the role of the Commission’s “Commission
Counsel”.
On May 21, 2018, the Michigan Civil Rights Commission (Commission) promulgated Interpretive
Statement 2018-1. In that statement, the Commission determined that the language prohibiting
discrimination “because of…sex” as used in the Elliott Larsen Civil Rights Act was ambiguous. It then
interpreted the Act’s ambiguous language to encompass discrimination because of gender identity and
sexual orientation.
On July 20, 2018, the then Attorney General, Bill Schuette, issued Attorney General Opinion No. 7305.
This formal Attorney General Opinion found the Commission’s interpretive statement to be invalid
because it conflicts with the original intent of the Legislature as expressed in what he called “the plain
language of the Act, and as interpreted by Michigan’s courts.”
The Commission subsequently determined that Attorney General Opinion 7305 did not void its
Interpretive Statement and therefore instructed the Department to continue accepting and investigating
cases pursuant to Interpretive Statement 2018-1, because:
• By Constitution and Statute, the Commission is the penultimate authority designated to interpret what
it determines is ambiguous language in the Elliott Larsen Civil Rights Act,
• Once the interpretive statement was issued, if the Attorney General wished to invalidate the
Commission’s determination, he could only do so by bringing a court action challenging it, and
• The Attorney General’s opinion was premised upon the statute’s language being “unambiguous”, an
untenable position given the opinions of the Sixth Circuit Court of Appeals and other courts that have
ruled the phrase “because of sex” is inclusive.
During the period of time the matter was being considered by the Commission, the Assistant Attorney
General appointed to represent the Commission as “Commission Counsel” repeatedly instructed the
Commission that it had no independent power to interpret Michigan civil rights laws other than as
dictated by the Attorney General. Commission Counsel informed the Commission that it would not be
represented by the Attorney General if it were legally challenged for interpreting the statute other than as
directed by the Attorney General and, further, that Commissioners who supported the Interpretative
Statement would waive their individual statutory immunity by disagreeing with the interpretation of
Attorney General. A request to appoint a Department of Civil Rights attorney to represent the interests
of the Commission independent of the interests of the Attorney General was declined, and when law
school professors and other attorneys independently offered testimony indicating the Commission had
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independent authority to interpret civil rights statutes, Commission Counsel advised the Commission it
could not consider those opinions to be legal advice if they were inconsistent with what he presented as
the position of the Attorney General.
Because the Commission is a constitutionally created independent entity empowered with exclusive
authority over Michigan’s civil rights law, it is imperative that it be provided with clarification about
whether the Commission’s independence includes the authority to interpret those civil rights laws.
Similarly, it is imperative that as an independent body the Commission have access to legal counsel that
answers to the Commission and the Commission’s interests. Therefore, the Commission asks for a
formal opinion answering the following questions:
 What is the legal validity of Interpretive Statement 2018-1 and Attorney General Opinion 7305?

 Is the Commission’s otherwise plenary authority in the area of civil rights law limited to only the
adoption of legal interpretations that are dictated to it by the Attorney General, or are such
differences to be resolved in a court of law?

 Is an Assistant Attorney General appointed to act as Commission Counsel required to act as:
counsel to the Commission and thus ethically bound to present the Commission with all legally
supportable options (including those that may be different than the Office of the Attorney General)
in order to permit the Commission to decide for itself what legal theory to adopt; or is Commission
Counsel merely a representative of the Attorney General functioning to ensure that the
Commission acts as the Office of the Attorney General prescribes without any ethical responsibility
to independently represent the Commission?

 Is the Commission entitled to legal representation in civil actions brought against it only if the legal
action is over a matter on which the Attorney General supports the Commission’s actions, or does
the constitutionally independent Commission have the right to retain its own counsel if the Attorney
General refuses to represent the Commission or its determinations, policies, and positions?

 Does an individual Commissioner lose both immunity and the right to representation by voting in
favor of an interpretation of Michigan civil rights law that is inconsistent with one championed by
the Attorney General?

 Will Commission Counsel or other members of the Office of Attorney General represent the
interests of the Department of Civil Rights when it files a charge of “discrimination because of sex”
that is based on a conclusion that a claimant was discriminated against because of their sexual
orientation or gender identity?

 Will Commission Counsel or other members of the Office of Attorney General represent the
interests of the Department of Civil Rights should a legal action be brought challenging the
Department’s jurisdiction to investigate a complaint pursuant to Interpretive Statement 2018-1 and
contrary to Attorney General Opinion 7305?

Respectfully submitted on behalf of the Michigan Civil Rights Commission,

_______________________ Laura R. Kopack

_______________________
Alma Wheeler Smith Laura Reyes Kopack
Commission Chair 2019 Commission Chair 2018

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www.michigan.gov  (517) 241-6300