A. The Promulgating Language

As noted above, effective March 10, 2000, the Legislature amended the PWDCRA to specifically exclude incarcerated prisoners from the class of persons entitled to damages under the act. The language of the statute is not at issue. Rather, we must determine the meaning of the promulgating language. Again, as noted above, in enacting 1999 PA 201, the Legislature provided the following:
This amendatory act is curative and intended to correct any misinterpretation of legislative intent in the court of appeals decision in **275Doe v. Department of Corrections, 236 Mich.App. 801, 601 N.W.2d 696 (1999). This legislation further expresses the original intent of the legislature that an individual serving a sentence of imprisonment in a state or county correctional facility is not within the purview of this act.

B. The Retroactivity "Rules"

In In re Certified Questions (Karl v. Bryant Air Conditioning Co.), [FN29] the Supreme Court outlined four guiding principles or "rules" for determining when the Legislature intends for a new act to apply to a preenactment cause of action.

FN29. In re Certified Questions (Karl v. Bryant Air Conditioning Co), 416 Mich. 558, 331 N.W.2d 456 (1982).

First, is there specific language in the new act which states that it should be given retrospective or prospective application. See headnote no. 1, Hansen-Snyder Co. v. General Motors Corp., 371 Mich. 480, 124 N.W.2d 286 (1963). Second, "[a] statute is not regarded as operating retrospectively *60 [solely] because it relates to an antecedent event." Hughes v. Judges' Retirement Board, 407 Mich. 75, 86, 282 N.W.2d 160 (1979). Third, "[a] retrospective law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past." Hughes, supra, p. 85, 282 N.W.2d 160; Ballog v. Knight Newspapers, Inc., 381 Mich. 527, 533-534, 164 N.W.2d 19 (1969). Fourth, a remedial or procedural act which does not destroy a vested right will be given effect where the injury or claim is antecedent to the enactment of the statute. Rookledge v. Garwood, 340 Mich. 444, 65 N.W.2d 785 (1954). [FN30]

FN30. Id. at 570-571, 331 N.W.2d 456.

The second rule is not at issue here because the Michigan Supreme Court has interpreted second rule cases as related to measuring the amount of entitlement provided by a subsequent statute in part by services rendered pursuant to a prior statute. [FN31] However, we will separately address the applicability of the remaining three rules to this case. We hold that application of the third and fourth rules dictates the conclusion that 1999 PA 201 should not be applied retroactively and that plaintiffs' preenactment cause of action is therefore not barred.

FN31. Id. at 571, 331 N.W.2d 456.

C. The First Rule: "Is There Specific Language In The New Act Which States That It Should Be Given Retrospective Or Prospective Application?"

Applying the first rule, we find that the Legislature included language in the new act suggesting that it intended for the act to have retrospective application. Although 1999 PA 201 does not use the word "retroactive," *61 we cannot fail to notice the Legislature's statements that it promulgated the act as an expression of its "original" intent and that it intended to "cure" this Court's earlier decision. However, our analysis does not end here. Whether the Legislature indeed balanced the benefits of retroactivity against the potential for disruption or unfairness is a query specifically contemplated by application of rules three and four to this case. Application of these two latter rules compels us to conclude that it would be improper to apply the 1999 amendment retroactively.

**276 D. The Third Rule: "A Retrospective Law Is One Which Takes Away Or Impairs Vested Rights Acquired Under Existing Laws, Or Creates A New Obligation And Imposes A New Duty, Or Attaches A New Disability With Respect To Transactions Or Considerations Already Past."

Rule three defines those retroactive situations that are not legally acceptable. Specifically, a law may not apply retroactively if it abrogates or impairs vested rights, creates new obligations, or attaches new disabilities regarding transactions or considerations already past. [FN32] In Frank W Lynch & Co v. Flex Technologies, Inc, [FN33] the Michigan Supreme Court held that the presumption of prospective application was "especially true" where retroactive application of a statute would impair vested rights, create a new obligation and impose a new duty, or attach a disability with respect to past transactions.

FN32. Id. at 572, 331 N.W.2d 456.

FN33. Lynch, supra at 583, 624 N.W.2d 180.

In this case, plaintiffs claim a vested right in their cause of action under the PWDCRA. A cause of action becomes a vested right when it accrues and all the *62 facts become operative and known. [FN34] Plaintiffs' cause of action accrued and all the facts became operative and known before the effective date of 1999 PA 201. Retroactive application of the amended definition of "public service" would impair plaintiffs' cause of action under the PWDCRA, because prisons would be excluded as places of public service prohibited from discriminating on the basis of disability. Accordingly, we conclude that the new statute is within the general proscription of rule three.

FN34. Karl, supra at 572-573, 331 N.W.2d 456.

E. The Fourth Rule: "A Remedial Or Procedural Act Which Does Not Destroy A Vested Right Will Be Given Effect Where The Injury Or Claim Is Antecedent To The Enactment Of The Statute."

In defining those retrospective situations that are acceptable, the fourth rule establishes the corollary to the general proscription found in rule three. [FN35] The fourth rule provides that a remedial or procedural statute may operate retrospectively if it does not take away vested rights. [FN36]

FN35. Id. at 576, 331 N.W.2d 456.

FN36. Id.

The Michigan Supreme Court has held that a statute significantly affecting a party's substantive rights should not be applied retroactively merely because it can also be characterized in a sense as "remedial." [FN37] "Remedial," in this context, should only be employed to describe legislation that does not affect substantive rights. [FN38] The legislation in this case affects substantive *63 rights and therefore cannot operate retrospectively according to the fourth rule.

FN37. Lynch, supra at 585, 624 N.W.2d 180.

FN38. Id.

F. Conclusion

In sum, according to the rules announced in Karl, we hold that application of the 1999 amendment to the facts of this case would be an improper retroactive application because § 301 of the PWDCRA, as amended, is not remedial but would impair vested rights. We also conclude that 1999 PA 201 does not violate art 3, § 2 of the Michigan Constitution, which **277 would preclude the Legislature from reversing or setting aside a judgment entered by a court. [FN39] Accordingly, we answer the question posed by the Michigan Supreme Court on remand in the negative: plaintiffs' preenactment cause of action is not barred by the 1999 amendment of the PWDCRA.

FN39. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). See also Quinton v. General Motors Corp., 453 Mich. 63, 75, 551 N.W.2d 677 (1996).

Reversed and remanded for further proceedings.

HOEKSTRA, P.J. (concurring).

I agree with the majority's conclusion that § 301 is prospective in application and join in its reasoning in all but part III C of its opinion. I write separately to express my opinion on the application of the "first rule" from In re Certified Questions (Karl v. Bryant Air Conditioning Co), 416 Mich. 558, 570-571, 331 N.W.2d 456 (1982).

The first rule poses the following query: "is there specific language in the new act which states that it should be given retrospective or prospective application." Id. at 570, 331 N.W.2d 456. In considering the promulgating language *64 of 1999 PA 201, I look for guidance in our Supreme Court's recent opinion in Frank W Lynch & Co. v. Flex Technologies, Inc., 463 Mich. 578, 624 N.W.2d 180 (2001). There, our Supreme Court strove to " reemphasize the strong presumption against the retroactive application of statutes in the absence of a clear expression by the Legislature that the act be so applied." Id. at 588, 624 N.W.2d 180.

As examples of the requisite "clear expression by the Legislature," the Court highlighted two statutes containing specific language on retroactive application. The Court cited M.C.L. § 141.1157, which provides that "[t]his act shall be applied retroactively," and M.C.L. § 324.21301a, which provides that "[t]he changes in liability that are provided for in the amendatory act that added this subsection shall be given retroactive application." Lynch, supra at 584, 624 N.W.2d 180. These statutes leave no doubt about the Legislature's intentions for the application of these specific statutes or about the Legislature's general ability to make clear its intention regarding the prospective or retroactive application of a statute. Consequently, I find it significant in this case that the Legislature omitted the word "retroactive" in 1999 PA 201. [FN1]

FN1. Applying Lynch, supra, this Court in Travis v. Preston, 247 Mich.App. 190, 197-198, 635 N.W.2d 362 (2001), also found it significant that there was an absence of a "clear expression" by the Legislature in amending the Right to Farm Act and therefore rejected the defendants' argument that the amended language should be retroactively applied.

Unlike the majority, I am not persuaded that inclusion of the word "curative" and the phrase "original intent of the legislature" in the promulgating language sufficiently evidences an intent by the Legislature to make the act retroactive. This language does not necessarily *65 indicate that the Legislature intended to cure retroactively but may merely indicate an intent to cure from this point forward. See, e.g., Rivers v. Roadway Express, Inc., 511 U.S. 298, 306-308, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994). Retroactivity raises special policy concerns, making the choice to enact a statute that responds to a judicial decision quite distinct from the choice to make the responding statute retroactive. Id.

In my opinion, 1999 PA 201 does not contain language that specifically tells this Court that the intent of the Legislature **278 was for the act to be applied retroactively. Had the Legislature intended for the amendment to have retroactive effect, it easily could have inserted the word "retroactive" in the act as it has on previous occasions in other acts.

DOCTOROFF and MARKEY, JJ., concurred.

249 Mich.App. 49, 641 N.W.2d 269, 23 NDLR P 50

END OF DOCUMENT

The PWDCRA provides in part:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation or public service because of a handicap that is unrelated to *203 the individual's ability to utilize and benefit from the goods, services, facilities, privileges, advantages, or accommodations or because of the use by an individual of adaptive devices or aids. [MCL 37.1302(a); MSA 3.550(302)(a) (emphasis added).]
The statute defines "place of public accommodation":
(a) "Place of public accommodation" means a business, educational institution, refreshment, entertainment, recreation, health, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made **3 available to the public. [MCL 37.1301(a); MSA 3.550(301)(a).]
The statute attempts to define "public service":
(b) "Public service" means a public facility, department, agency, board or commission, owned, operated, or managed by or on behalf of this state or a subdivision of this state, a county, city, village, township, or independent or regional district in this state, or a tax exempt private agency established to provide service to the public. [MCL 37.1301(b); MSA 3.550(301)(b).]

The various panels of this Court have struggled to determine what public service means. Does it mean service to the public? Who is the public? Are prisoners included?

Subsection 301(a) states in pertinent part: " 'Place of public accommodation' means a business [or] educational institution ... whose ... accommodations are extended, offered, sold, or otherwise made available to the public." MCL 37.1301(a); MSA 3.550(301)(a).

I note with interest that the plaintiffs in this action complain that they were denied placement in community *204 residential programs, camps, and farms on the basis of their HIV-positive status. Plaintiffs do not argue a violation of subsection 301(a), which deals expressly with accommodations, obviously because of its concluding words "otherwise made available to the public." (Emphasis added). Clearly, prisoners are not incarcerated in accommodations that are made available to the public. In fact, in Neal I the parties conceded that a prison is not "a place of public accommodation."

Subsection 301(b) states in pertinent part: " 'Public service' means a public facility, department, agency ... or a tax exempt private agency established to provide service to the public." MCL 37.1301(b); MSA 3.550(301)(b).

Thus, rather than relying on the statutory definition of public accommodations, plaintiffs now turn to subsection 301(b) seeking a remedy for prisoners and inmates under a broad reading of "public service" in that section. In the supplemental brief on appeal, addressed to this conflict panel, plaintiffs argue that the Doe majority was incorrect in its conclusions that public service means service to the public. The discussion by plaintiffs' brief posits the question for this panel:
In an attempt to distinguish the Michigan Department of Corrections from the other covered state agencies or departments, the Doe majority panel asserts that the "key phrase" of the definition of public service is the phrase "established to provide service to the public" and reads this phrase as modifying all proceeding [sic] parts of the definition. Because the panel believes that prisons, and presumably community treatment centers, were not established to provide a service to the public (at least not a public that includes prisoners), they conclude that Michigan Department *205 of Corrections, a state agency, is not a public service under this Definition. Doe v. MDOC, Slip Op. At 4.
However, a careful reading of Section 301(b) shows that the key phrase relied upon by the Doe majority panel is used to modify what immediately proceeds [sic] it ... "a tax-exempt private agency," not the preceding terms, which include all state owned and operated facilities and departments. Section 301(b) defines a public service as any "public facility, department [or] agency ... owned, operated, or managed by or on behalf of the state, ... or a tax-exempt private agency established to provide services to the public." MCL 37.2301(b) (emphasis added). Section 301(b) does not establish an additional requirement that each and every public facility, department, or agency also must be shown to have been established to provide service to the public. Rather all such organizations qualify as do those tax-exempt **4 private agencies which have been established to provide service to the public.
The majority panels' [sic] restrictive interpretation is contrary to the basic rules of statutory construction. Only if the comma was placed after private agency, could one read the requirement "established to provide service to the public" as modifying all of the prior terms:
The absence of a comma after "private agency" in both the PWDCRA's and CRA's definitions of "public service" supports that the phrase "established to provide service to the public" modifies only "a tax-exempt private agency." See, Eskridge and Frickey Legislation, Statutory Interpretation, Chapter 7, Section 2, P644.

Without debating or disagreeing with the principle of statutory interpretation as discussed in the concurring opinion of Doe and accepting the principle as correct, we are now left with the need to define "public service," the first two words of subsection 301(b). But for the absence of a comma, the definition or meaning of "public service" would include the prior terms and the phrase "established to provide service to the public" would modify all preceding terms and it *206 would be clear that prisoners do not provide service to the public by their incarceration.

Instead we are left without a definition of the term "public service." When a term is not defined, its "commonly used meaning" controls. Frankenmuth Mut. Ins. Co. v. Masters, 460 Mich. 105, 111, 112, 114, 595 N.W.2d 832 (1999). I conclude that the clear and obvious definition of public service can only mean service to the public provided by persons, agencies, or institutions.

The majority in Neal I addressed this issue and correctly concluded that prisons, "in their dealings with prisoners," do not provide a service to the public. Neal I, supra at 210, 583 N.W.2d 249. This Court in Doe, supra, agreed with Neal I that "it could perceive no legislative intent to extend the dictates of the Civil Rights Act to prisoners." Id. at 209, 583 N.W.2d 249. I agree with the conclusion of the panel in Doe, supra, that "the Court's rationale for rejecting a prison as a place of public service is just as applicable to the [Handicappers' Civil Rights Act, now the PWDCRA] as it is to the Civil Rights Act."

It is important to observe that subsection 301(b) does not indicate which buildings or agencies are included within the scope of the act, nor does it define the individuals that are or are not covered by the act. It merely purports to define "public service" and, as can be readily inferred from this Court's conflicting opinions, the intended definition is nullified by the lack of a comma. Neal I, supra at 213, 583 N.W.2d 249.

Notwithstanding the placement of commas and the emphasis of previous analyses, the meaning of the *207 statutory definition contained in subsection 301(b) is clear: [FN2]

FN2. After submission and argument in this case, the Legislature amended certain provisions of the CRA and the PWDCRA. The effect of these amendments is not before this Court, and we render no opinion regarding this amended legislation. The Legislature's action has no bearing on my conclusion that the statutory intent in this matter is clear, even without the recent amendments.

Prisons are not established to provide service to the public (at least not to a public that includes prisoners.) Indeed, they are designed to do just the opposite--to keep incarcerated individuals from the public. [Neal, supra at 214, 583 N.W.2d 249.]
Because I am convinced that prisoners incarcerated in prisons do not perform a public service, it follows that prisons are not included in the meaning of "public service" and that prison inmates are not **5 protected under either the Civil Rights Act or the PWDCRA. For this reason I would reject the holding of Neal II and adopt the conclusions reached by the majority in Doe. Accordingly, I would affirm the trial court's order granting defendant's motion for summary disposition of this issue.

MICHAEL J. KELLY, J., concurred with GRIBBS, J., in dissent.

240 Mich.App. 199, 611 N.W.2d 1, 10 A.D. Cases 551

END OF DOCUMENT

II
Plaintiffs next contend that the trial court abused its discretion in denying their motion for leave to amend their complaint to add claims under the Rehabilitation Act and the ADA. We agree.

A motion to amend pleadings is a matter "within the sound discretion of the trial court and reversal is only appropriate when the trial court abuses that discretion." Weymers v. Khera, 454 Mich. 639, 654, 563 N.W.2d 647 (1997). A motion to amend pleadings should ordinarily be granted absent such factors as undue prejudice to the opposing party, undue delay, **702 bad faith, or dilatory motive on the movant's part, or where the proposed amendment would be futile. Ben P Fyke & Sons v. Gunter Co., 390 Mich. 649, 656, 213 N.W.2d 134 (1973).

The trial court ruled that the proposed amendment would have prejudiced defendants because it was sought on the eve of mediation, which had been scheduled with great difficulty before a special panel, and because plaintiffs had been aware of potential claims under the federal antidiscrimination acts for some time. However, "[d]elay without more, such as undue prejudice, does not mandate the denial of a motion to amend." Traver Lakes Community Maintenance Ass'n v. Douglas Co., 224 Mich.App. 335, 343-344, 568 N.W.2d 847 (1997). Plaintiffs filed their motion several months in advance of trial and there was no indication that mediation could not have been rescheduled within a reasonable time in advance of trial. Similarly, there was no finding that plaintiffs' delay was due to bad faith or dilatory motive. Therefore, we conclude that the trial court abused its discretion in denying plaintiffs' proposed amendment on the basis of undue prejudice.

The trial court also ruled that the proposed amendment would have been futile because neither the ADA nor the Rehabilitation Act applied to prisons and claims by prison inmates. At the time the trial court ruled on plaintiffs' motion to amend, the state of the law regarding the applicability of these acts to prisons and prison inmates was unsettled. Subsequently, however, the United States Supreme Court rendered its opinion in Yeskey, supra, holding that the plain language of the ADA unambiguously and "unmistakably includes State prisons and prisoners within its coverage," and finding that the text of the act provided no basis for distinguishing the programs, services, and activities provided by prisons to their inmates from those provided by other public utilities. Because the Rehabilitation Act "is materially identical to and the model for the ADA, ... except that it is limited to programs that receive federal financial assistance," Crawford v. Indiana Dep't of Corrections, 115 F.3d 481, 483 (C.A.7, 1997), we conclude that the Rehabilitation Act would, under the analysis in Yeskey, supra, apply to state prisons that receive federal financial assistance and to their prisoners. Thus, the trial court erred (albeit without the benefit of hindsight available to this Court) in denying plaintiffs' proposed amendment to their complaint. However, again echoing the concerns expressed in Neal I and Judge O'Connell's dissent in Neal II, we reiterate our misgivings about such a result. While we follow Yeskey, we urge Congress to amend the ADA to exclude prisoners from the class of persons entitled to protection under the act.

III
Finally, plaintiffs contend that the trial court erred in finding that they had failed to sustain their burden of proof with regard to their equal protection claim at trial. This Court reviews the trial court's findings of fact in a bench trial for clear error. Featherston v. Steinhoff, 226 Mich.App. 584, 587, 575 N.W.2d 6 (1997). A finding is clearly erroneous when, although evidence supports it, this Court is left with a firm conviction that the trial court made a mistake. Id. The trial court's conclusions of law are reviewed de novo for error. Omnicom of Michigan v. Giannetti Investment Co., 221 Mich.App. 341, 348, 561 N.W.2d 138 (1997). "A new trial is appropriate when an error of law has occurred in the proceedings." Schellenberg v. Rochester, Michigan, Elks Lodge No. 2225, 228 Mich.App. 20, 31, 577 N.W.2d 163 (1998).

The trial court's initial finding regarding the length of time that the MDOC utilized a blanket prohibition policy is supported by the evidence and is not clearly erroneous. Lumley v. Univ. of Michigan Bd. of Regents, 215 Mich.App. 125, 135, 544 N.W.2d 692 (1996). However, we conclude that the trial court erred in finding that **703 MDOC's 1990 revised policy was not an issue to be considered in plaintiffs' constitutional claim. The prisoners who were rejected from consideration for CRP placement on the basis of their medical eligibility under the revised policy were HIV-positive and thus within the class certified by the court.

We further conclude that the trial court's application of the rational basis test, People v. Pitts, 222 Mich.App. 260, 272-273, 564 N.W.2d 93 (1997), to plaintiffs' equal protection claim was inappropriate. Because this case involves prison policy rather than legislation, a traditional equal protection analysis is not utilized.

Rather, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Although this test is essentially the same as the rational basis test (a statute is valid "if the classification scheme it has created is rationally related to a legitimate governmental purpose," Pitts, supra at 273, 564 N.W.2d 93), its application requires consideration of four factors: (1) whether there is "a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it," (2) "whether there are alternative means of exercising the right that remain open to prison inmates," (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally," and (4) whether the regulation "is an 'exaggerated response' to prison concerns" or there really are no alternatives "that fully accommodate the prisoner's rights at de minimus cost to valid penological interests." Turner, supra at 89-91, 107 S.Ct. 2254. [FN4] Plaintiffs bear the burden of showing that the challenged regulation is unreasonable under Turner. Casey v. Lewis, 4 F.3d 1516, 1520 (C.A.9, 1993).

FN4. To the extent that Turner applies to a prisoner's right to the free exercise of religion, it has been superseded by the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-2000bb-4. See Fawaad v. Jones, 81 F.3d 1084 (C.A.11, 1996); Werner v. McCotter, 49 F.3d 1476 (C.A.10, 1995).

Because the trial court in the instant case applied the wrong legal analysis to plaintiffs' equal protection claim and in so doing failed to consider the necessary factors for determining the constitutional validity of prison policy, we reverse the judgment of the trial court and remand for reconsideration of plaintiffs' constitutional claim under the test set forth in Turner, supra.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

McDONALD, J., concurs.

WHITE, J. (concurring ).

The majority agrees with the reasoning of the Neal I [FN1] majority and of the dissenting judge in Neal II [FN2] that prisoners fall outside the coverage of the Civil Rights Act (CRA), M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq., because prisons are not "established to provide public service," and concludes that prisoners also fall outside the coverage of the Persons with Disabilities Civil Rights Act (PWDCRA), M.C.L. § 37.1101 et seq.; MSA 3.550(101) et seq., formerly the Handicappers' Civil Rights Act (HCRA), [FN3] which defines "public service" similarly. I disagree.

FN1. Neal v. Dep't of Corrections, 230 Mich.App. 202, 583 N.W.2d 249 (1998).

FN2. Neal v. Dep't of Corrections (On Rehearing), 232 Mich.App. 730, 592 N.W.2d 370 (1998).

FN3. 1998 PA 20 renamed the HCRA and changed the term "handicap" to "disability" throughout the act.

The PWDCRA defines "public service" as:
**704 "Public service" means a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of this state or a subdivision of this state, a county, city, village, township, or independent or regional district in this state, or a tax exempt private agency established to provide service to the public. [MCL 37.1301(b); MSA 3.550(301)(b) (emphasis added).]
The CRA defines "public service" as:
"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. [MCL 37.2301(b); MSA 3.548(301)(b) (emphasis added).]

Neither the plain language of the CRA or the PWDCRA nor the result reached upon application of rules of statutory interpretation to the definitions of "public service" support the result reached in Neal I.

The CRA and the PWDCRA, being remedial in nature, are to be construed liberally. Chmielewski v. Xermac, Inc., 457 Mich. 593, 601, 580 N.W.2d 817 (1998); Allen v. Southeastern Michigan Transportation Authority, 132 Mich.App. 533, 537, 349 N.W.2d 204 (1984), citing 90 A.L.R.3d 393, 393-394. The plain language of the PWDCRA nowhere excludes prisons from its coverage, [FN4] referring throughout to "persons" and "individuals" with disabilities. The absence of a comma after "private agency" in both the PWDCRA's and CRA's definitions of "public service" supports that the phrase "established to provide service to the public" modifies only "a tax exempt private agency." See Eskridge & Frickey, Cases and Materials on Legislation, ch. 7, § 2, p. 644 (noting that " '[e]vidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma,' " quoting 2A Sutherland Statutory Construction (4th ed.), § 47.33, p. 245.) "Qualifying words and phrases in a statute refer solely to the last antecedent in which no contrary intention appears." Weems v. Chrysler Corp., 448 Mich. 679, 700, 533 N.W.2d 287 (1995). In this instance, the modifying clause ("established to provide service to the public") is confined to the last antecedent ("a tax exempt private agency"). Nothing in the subject matter or dominant purpose of the statute requires a different interpretation.

FN4. Defendants' appellate brief urges that we look not to the PWDCRA's plain language, but to the spirit and purpose of the act:

Analysis of PWDCRA claims is largely parallel to analysis under the ADA; the statutes have similar purposes and definitions. Chmielewski, supra at 602, 580 N.W.2d 817; Collins v. Blue Cross Blue Shield of Michigan, 228 Mich.App. 560, 568, 579 N.W.2d 435 (1998); see also Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1178, n. 3 (C.A.6, 1996). The provisions of the ADA at issue in Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), provide:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. [42 U.S.C. 12132 (emphasis added).]
Subsection 1 of § 12131 of the ADA, 42 U.S.C. 12131(1), defines "public entity" as
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government;
**705 (C) the National Railroad Passenger Corporation, and any commuter authority....

When the PWDCRA provision defining "public service" is interpreted as discussed above, it becomes analogous in its coverage to the ADA provision defining "public entity." While the majority notes its agreement with the Neal I Court's determination that "[n]o reasonable reading of the statute [CRA] would conclude that 'public service' merely means a department or agency," ante, p. 699, the ADA operates precisely in that fashion, and the PWDCRA is the Michigan analog of the ADA.

The analysis of a unanimous United States Supreme Court in Yeskey, supra, provides guidance in interpretation of the PWDCRA as well:
Here, the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt. Title II of the ADA provides that:
"Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
State prisons fall squarely within the statutory definition of "public entity," which includes "any department, agency, special purpose district, or other instrumentality of a State or States or local government." § 12131(1)(B).
Petitioners contend that the phrase "benefits of the services, programs, or activities of a public entity," § 12132, creates an ambiguity because state prisons do not provide prisoners with "benefits" of "programs, services, or activities" as those terms are ordinarily understood. We disagree. Modern prisons provide inmates with many recreational "activities," medical "services," and educational and vocational "programs," all of which at least theoretically "benefit" the prisoners (and any of which disabled prisoners could be "excluded from participation in").... The text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons.

* * *
Finally, petitioners point out that the statute's statement of findings and purpose, 42 U.S.C. § 12101, does not mention prisons and prisoners.... [A]ssuming [that] to be true, and assuming further that it proves, as petitioners contend, that Congress did not "envisio[n] that the ADA would be applied to state prisoners," Brief for Petitioners 13-14, in the context of an unambiguous statutory text that is irrelevant. As we have said before, the fact that a statute can be " 'applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.' " Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (citation omitted). [118 S.Ct. at 1954-1956, 141 L.Ed.2d at 219- 220 (emphasis added).]

Additionally, I conclude that the Neal II majority correctly determined that prisons are not exempt under the exemption for private establishments found in § 30.

I agree with the majority's disposition of the remaining issues.

236 Mich.App. 801, 601 N.W.2d 696, 9 A.D. Cases 1820

END OF DOCUMENT

II
Plaintiffs next contend that the trial court abused its discretion in denying their motion for leave to amend their complaint to add claims under the Rehabilitation Act and the ADA. We agree.

A motion to amend pleadings is a matter "within the sound discretion of the trial court and reversal is only appropriate when the trial court abuses that discretion." Weymers v. Khera, 454 Mich. 639, 654, 563 N.W.2d 647 (1997). A motion to amend pleadings should ordinarily be granted absent such factors as undue prejudice to the opposing party, undue delay, **702 bad faith, or dilatory motive on the movant's part, or where the proposed amendment would be futile. Ben P Fyke & Sons v. Gunter Co., 390 Mich. 649, 656, 213 N.W.2d 134 (1973).

The trial court ruled that the proposed amendment would have prejudiced defendants because it was sought on the eve of mediation, which had been scheduled with great difficulty before a special panel, and because plaintiffs had been aware of potential claims under the federal antidiscrimination acts for some time. However, "[d]elay without more, such as undue prejudice, does not mandate the denial of a motion to amend." Traver Lakes Community Maintenance Ass'n v. Douglas Co., 224 Mich.App. 335, 343-344, 568 N.W.2d 847 (1997). Plaintiffs filed their motion several months in advance of trial and there was no indication that mediation could not have been rescheduled within a reasonable time in advance of trial. Similarly, there was no finding that plaintiffs' delay was due to bad faith or dilatory motive. Therefore, we conclude that the trial court abused its discretion in denying plaintiffs' proposed amendment on the basis of undue prejudice.

The trial court also ruled that the proposed amendment would have been futile because neither the ADA nor the Rehabilitation Act applied to prisons and claims by prison inmates. At the time the trial court ruled on plaintiffs' motion to amend, the state of the law regarding the applicability of these acts to prisons and prison inmates was unsettled. Subsequently, however, the United States Supreme Court rendered its opinion in Yeskey, supra, holding that the plain language of the ADA unambiguously and "unmistakably includes State prisons and prisoners within its coverage," and finding that the text of the act provided no basis for distinguishing the programs, services, and activities provided by prisons to their inmates from those provided by other public utilities. Because the Rehabilitation Act "is materially identical to and the model for the ADA, ... except that it is limited to programs that receive federal financial assistance," Crawford v. Indiana Dep't of Corrections, 115 F.3d 481, 483 (C.A.7, 1997), we conclude that the Rehabilitation Act would, under the analysis in Yeskey, supra, apply to state prisons that receive federal financial assistance and to their prisoners. Thus, the trial court erred (albeit without the benefit of hindsight available to this Court) in denying plaintiffs' proposed amendment to their complaint. However, again echoing the concerns expressed in Neal I and Judge O'Connell's dissent in Neal II, we reiterate our misgivings about such a result. While we follow Yeskey, we urge Congress to amend the ADA to exclude prisoners from the class of persons entitled to protection under the act.

III
Finally, plaintiffs contend that the trial court erred in finding that they had failed to sustain their burden of proof with regard to their equal protection claim at trial. This Court reviews the trial court's findings of fact in a bench trial for clear error. Featherston v. Steinhoff, 226 Mich.App. 584, 587, 575 N.W.2d 6 (1997). A finding is clearly erroneous when, although evidence supports it, this Court is left with a firm conviction that the trial court made a mistake. Id. The trial court's conclusions of law are reviewed de novo for error. Omnicom of Michigan v. Giannetti Investment Co., 221 Mich.App. 341, 348, 561 N.W.2d 138 (1997). "A new trial is appropriate when an error of law has occurred in the proceedings." Schellenberg v. Rochester, Michigan, Elks Lodge No. 2225, 228 Mich.App. 20, 31, 577 N.W.2d 163 (1998).

The trial court's initial finding regarding the length of time that the MDOC utilized a blanket prohibition policy is supported by the evidence and is not clearly erroneous. Lumley v. Univ. of Michigan Bd. of Regents, 215 Mich.App. 125, 135, 544 N.W.2d 692 (1996). However, we conclude that the trial court erred in finding that **703 MDOC's 1990 revised policy was not an issue to be considered in plaintiffs' constitutional claim. The prisoners who were rejected from consideration for CRP placement on the basis of their medical eligibility under the revised policy were HIV-positive and thus within the class certified by the court.

We further conclude that the trial court's application of the rational basis test, People v. Pitts, 222 Mich.App. 260, 272-273, 564 N.W.2d 93 (1997), to plaintiffs' equal protection claim was inappropriate. Because this case involves prison policy rather than legislation, a traditional equal protection analysis is not utilized.

Rather, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Although this test is essentially the same as the rational basis test (a statute is valid "if the classification scheme it has created is rationally related to a legitimate governmental purpose," Pitts, supra at 273, 564 N.W.2d 93), its application requires consideration of four factors: (1) whether there is "a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it," (2) "whether there are alternative means of exercising the right that remain open to prison inmates," (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally," and (4) whether the regulation "is an 'exaggerated response' to prison concerns" or there really are no alternatives "that fully accommodate the prisoner's rights at de minimus cost to valid penological interests." Turner, supra at 89-91, 107 S.Ct. 2254. [FN4] Plaintiffs bear the burden of showing that the challenged regulation is unreasonable under Turner. Casey v. Lewis, 4 F.3d 1516, 1520 (C.A.9, 1993).

FN4. To the extent that Turner applies to a prisoner's right to the free exercise of religion, it has been superseded by the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-2000bb-4. See Fawaad v. Jones, 81 F.3d 1084 (C.A.11, 1996); Werner v. McCotter, 49 F.3d 1476 (C.A.10, 1995).

Because the trial court in the instant case applied the wrong legal analysis to plaintiffs' equal protection claim and in so doing failed to consider the necessary factors for determining the constitutional validity of prison policy, we reverse the judgment of the trial court and remand for reconsideration of plaintiffs' constitutional claim under the test set forth in Turner, supra.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

McDONALD, J., concurs.

WHITE, J. (concurring ).

The majority agrees with the reasoning of the Neal I [FN1] majority and of the dissenting judge in Neal II [FN2] that prisoners fall outside the coverage of the Civil Rights Act (CRA), M.C.L. § 37.2101 et seq.; MSA 3.548(101) et seq., because prisons are not "established to provide public service," and concludes that prisoners also fall outside the coverage of the Persons with Disabilities Civil Rights Act (PWDCRA), M.C.L. § 37.1101 et seq.; MSA 3.550(101) et seq., formerly the Handicappers' Civil Rights Act (HCRA), [FN3] which defines "public service" similarly. I disagree.

FN1. Neal v. Dep't of Corrections, 230 Mich.App. 202, 583 N.W.2d 249 (1998).

FN2. Neal v. Dep't of Corrections (On Rehearing), 232 Mich.App. 730, 592 N.W.2d 370 (1998).

FN3. 1998 PA 20 renamed the HCRA and changed the term "handicap" to "disability" throughout the act.

The PWDCRA defines "public service" as:
**704 "Public service" means a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of this state or a subdivision of this state, a county, city, village, township, or independent or regional district in this state, or a tax exempt private agency established to provide service to the public. [MCL 37.1301(b); MSA 3.550(301)(b) (emphasis added).]
The CRA defines "public service" as:
"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. [MCL 37.2301(b); MSA 3.548(301)(b) (emphasis added).]

Neither the plain language of the CRA or the PWDCRA nor the result reached upon application of rules of statutory interpretation to the definitions of "public service" support the result reached in Neal I.

The CRA and the PWDCRA, being remedial in nature, are to be construed liberally. Chmielewski v. Xermac, Inc., 457 Mich. 593, 601, 580 N.W.2d 817 (1998); Allen v. Southeastern Michigan Transportation Authority, 132 Mich.App. 533, 537, 349 N.W.2d 204 (1984), citing 90 A.L.R.3d 393, 393-394. The plain language of the PWDCRA nowhere excludes prisons from its coverage, [FN4] referring throughout to "persons" and "individuals" with disabilities. The absence of a comma after "private agency" in both the PWDCRA's and CRA's definitions of "public service" supports that the phrase "established to provide service to the public" modifies only "a tax exempt private agency." See Eskridge & Frickey, Cases and Materials on Legislation, ch. 7, § 2, p. 644 (noting that " '[e]vidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma,' " quoting 2A Sutherland Statutory Construction (4th ed.), § 47.33, p. 245.) "Qualifying words and phrases in a statute refer solely to the last antecedent in which no contrary intention appears." Weems v. Chrysler Corp., 448 Mich. 679, 700, 533 N.W.2d 287 (1995). In this instance, the modifying clause ("established to provide service to the public") is confined to the last antecedent ("a tax exempt private agency"). Nothing in the subject matter or dominant purpose of the statute requires a different interpretation.

FN4. Defendants' appellate brief urges that we look not to the PWDCRA's plain language, but to the spirit and purpose of the act:

Analysis of PWDCRA claims is largely parallel to analysis under the ADA; the statutes have similar purposes and definitions. Chmielewski, supra at 602, 580 N.W.2d 817; Collins v. Blue Cross Blue Shield of Michigan, 228 Mich.App. 560, 568, 579 N.W.2d 435 (1998); see also Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1178, n. 3 (C.A.6, 1996). The provisions of the ADA at issue in Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), provide:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. [42 U.S.C. 12132 (emphasis added).]
Subsection 1 of § 12131 of the ADA, 42 U.S.C. 12131(1), defines "public entity" as
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government;
**705 (C) the National Railroad Passenger Corporation, and any commuter authority....

When the PWDCRA provision defining "public service" is interpreted as discussed above, it becomes analogous in its coverage to the ADA provision defining "public entity." While the majority notes its agreement with the Neal I Court's determination that "[n]o reasonable reading of the statute [CRA] would conclude that 'public service' merely means a department or agency," ante, p. 699, the ADA operates precisely in that fashion, and the PWDCRA is the Michigan analog of the ADA.

The analysis of a unanimous United States Supreme Court in Yeskey, supra, provides guidance in interpretation of the PWDCRA as well:
Here, the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt. Title II of the ADA provides that:
"Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
State prisons fall squarely within the statutory definition of "public entity," which includes "any department, agency, special purpose district, or other instrumentality of a State or States or local government." § 12131(1)(B).
Petitioners contend that the phrase "benefits of the services, programs, or activities of a public entity," § 12132, creates an ambiguity because state prisons do not provide prisoners with "benefits" of "programs, services, or activities" as those terms are ordinarily understood. We disagree. Modern prisons provide inmates with many recreational "activities," medical "services," and educational and vocational "programs," all of which at least theoretically "benefit" the prisoners (and any of which disabled prisoners could be "excluded from participation in").... The text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons.

* * *
Finally, petitioners point out that the statute's statement of findings and purpose, 42 U.S.C. § 12101, does not mention prisons and prisoners.... [A]ssuming [that] to be true, and assuming further that it proves, as petitioners contend, that Congress did not "envisio[n] that the ADA would be applied to state prisoners," Brief for Petitioners 13-14, in the context of an unambiguous statutory text that is irrelevant. As we have said before, the fact that a statute can be " 'applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.' " Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (citation omitted). [118 S.Ct. at 1954-1956, 141 L.Ed.2d at 219- 220 (emphasis added).]

Additionally, I conclude that the Neal II majority correctly determined that prisons are not exempt under the exemption for private establishments found in § 30.

I agree with the majority's disposition of the remaining issues.

236 Mich.App. 801, 601 N.W.2d 696, 9 A.D. Cases 1820

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