author: P. J. Glennie, J.

text:
    KESTENBAUM v MICHIGAN STATE UNIVERSITY
    Docket No. 43048.
    Submitted October 11, 1979, at Lansing.
    Decided April 22, 1980.
    Leave to appeal applied for.
    Lawrence Kestenbaum sought from Michigan State University, pursuant to the Michigan Freedom of Information Act, a copy of a computer tape containing the names and addresses and other items of information relative to students enrolled at the university, along with the documentation, file layout and tape specifications necessary to get the information off the tape. The requested computer tape was developed by the university in order to assist the printer of the student directory in the mechanical printing process. Kestenbaum desired the information in the form of a computer tape so that he could develop a mailing list from which he could, as a commercial enterprise, make mailings of information of a political nature on behalf of parties who would pay him for that service. Michigan State University denied Kestenbaum’s request on the basis that the information on the tape was exempt from the requirements of the Michigan Freedom of Information Act by reason of the Federal Family Educational Rights and Privacy Act, except in the printed form of the student directory, and the release of the computer tape would involve the release of certain technology in which the university had a proprietary interest. The university did offer to provide the information requested in the form of a copy of the student directory received from the printers or in the form of a printout of the information.
    Kestenbaum brought an action in circuit court against Michigan State University and Dale Arnold, Director of Information Services for the university, seeking to compel the release of the computer tape and related retrieval information and seeking statutory damages, attorney fees, costs and disbursements in accordance with the act. The Ingham Circuit Court, Michael G. Harrison, J., ordered defendant to supply to plaintiff an edited copy of the tape at a reasonable cost, with the edited copy containing only the student’s names and addresses. This copy was to be returned to the defendant following the November, 1978, elections, and plaintiff was ordered to neither distribute the tape nor permit the use of the tape by any other party. The court refused to order an award of damages or to award attorney fees, costs or disbursements. Plaintiff appeals from the denial of any award of attorney fees, costs and disbursements. Defendant university cross-appeals. Held:

      References for Points in Headnotes
    [1] 20 Am Jur 2d, Costs §72 et seq.

    [2] 20 Am Jur 2d, Costs § 79 et seq.

    [3] 68 Am Jur 2d, Schools § 109 et seq.

    [4, 5] 62 Am Jur 2d, Privacy § 8.
    66 Am Jur 2d, Records and Recording Laws § 27 et seq.

    [6] 62 Am Jur 2d, Privacy § 18.
    [7-9] 66 Am Jur 2d, Records and Recording Laws §§ 19, 20.

      1. Since the university was ultimately ordered to provide only an edited version of the computer tape rather than the unedited version originally requested by plaintiff, the plaintiff is deemed to have only prevailed in part, in his circuit court action. Under such circumstances, the matter of the award of attorney fees is discretionary with the trial court. The trial court did not abuse its discretion by refusing to award plaintiff attorney fees and costs.
    2. Defendant university, being a recipient of Federal funds, is subject to the provisions of the Federal Family Educational Rights and Privacy Act and the Federal regulations adopted pursuant to that act. That Federal act serves two functions: (1) it provides access to student records by students and their parents; and (2) it establishes the privacy of those records.
    3. The regulations adopted pursuant to the Federal Family Educational Rights and Privacy Act classifies records maintained by educational institutions as being: (1) educational information; (2) personally identifiable information; or (3) directory information.
    4. Defendant university, in order to release student records which are classified as personally identifiable information, would have to secure from a student’s parent or from a student over 18 years of age a written, dated, signed document which specified the disclosable data, the purpose of the disclosure and the parties to whom disclosure might be made. The university did not secure such releases with respect to the requested information. The release of records classified as directory information, on the other hand, requires only that the educational institution give public notice of the type of information so designated and of the right of the student or parent to forbid disclosure of such information by the filing of a timely notice to that effect with the educational institution. Defendant university did satisfy the notice requirement of the directory information regulation.
    5. Since the names and addresses of students are considered to be both personally identifiable information and directory information, the release of such information does not require the written consent required for the release of personally identifiable information if no purely personal information is to be released.
    6. The release of the computer tape containing student names and addresses to plaintiff for the purpose of commercial dissemination of political notices constitutes an invasion of the students’ privacy, since there is not a sufficient public interest which outweighs the possible harm to the students involved. The fact that political notices are involved does not create the necessary public interest to justify the invasion of the students’ privacy, since there were other adequate means by which to disseminate the information to the students.
    7. The Michigan Freedom of Information Act does not require the release of the defendant university’s computer tape which contains, in addition to the names and addresses, valuable technological data developed by the university at public expense, since the information subject to the act, i.e., the names and addresses, could be released in a printed format which would not compromise the protected technological data.
    Reversed.
    1. Records — Public Records — Freedom of Information Act — Actions — Attorney Fees — Costs — Statutes.
    A party bringing a circuit court action to compel production of a public record under the Michigan Freedom of Information Act is deemed to have prevailed only in part and thus is not statutorily entitled to reasonable attorney fees, costs and disbursements arising out of the action where the extent of the public record ordered by the court to be produced is more restricted than the public record originally requested by the party (MCL 15.240[4]; MSA 4.1801[10][4]).
    2. Costs — Attorney Fees — Actions — Freedom of Information Act — Statutes.
    The award of attorney fees and costs in an action brought under the Michigan Freedom of Information Act is discretionary with the trial judge where the party bringing the action to compel production of a public record prevails only in part (MCL 15.240[4]; MSA 4.1801[10][4]).

      3. Colleges and Universities — Federal Privacy Act — Statutes.
    Michigan State University, being a recipient of Federal funds, falls within the scope of the provisions of the Federal Family Educational Rights and Privacy Act (20 USC 1232g, 45 CFR 99.1 et seq.).

    4. Records — Colleges and Universities — Federal Privacy Act — Purpose — Statutes.
    The Federal Family Educational Rights and Privacy Act serves two functions: (1) it provides access to student records by students and their parents; and (2) it establishes the privacy of those records (20 USC 1232g).
    5. Records — Colleges and Universities — Federal Privacy Act — Classification of Records — Statutes — Federal Regulations.
    Information contained in student records maintained by educational institutions are classified, for the purpose of the Federal Family Educational Rights and Privacy Act, as being: (1) educational; (2) personally identifiable; or (3) directory information (20 USC 1232g, 45 CFR 99.3).
    6. Records — Colleges and Universities — Federal Privacy Act — Disclosure of Records — Statutes — Federal Regulations.
    Disclosure, by an educational institution which is subject to the Federal Family Educational Rights and Privacy Act, of student records classified as personally identifiable information requires that the institution secure from a student’s parent or from a student over 18 years of age a written, dated, signed document which specifies the disclosable data, the purpose of the disclosure and the parties to whom disclosure may be made; disclosure of records classified as directory information requires that the educational institution give public notice of the type of information so designated and notice of the right of the student or parent to forbid disclosure by informing the institution in writing that any or all so designated categories of information should not be disclosed (20 USC 1232g, 45 CFR 99.30, 99.37).
    7. Records — Colleges and Universities — Disclosure of Records — Federal Privacy Act — Directory Information — Personally Identifiable Information — Statutes — Federal-Regulations.
    The disclosure by an educational institution of the names and addresses of its students, such information being included under both personally identifiable information and directory information classifications of the regulations promulgated pursuant to the Federal Family Educational Rights and Privacy Act, does not require written consent where the educational institution has given the notice required for disclosure of directory information and where no purely personal information is released (20 USC 1232g, 45 CFR 99.30[a][l]).
    8. Records — Colleges and Universities — Disclosure of Names and Addresses — Right of Privacy — Public Interest — Balancing Test.
    The disclosure by an educational institution of the names and addresses of its students contained on a computer tape to a person desiring such information for the purpose of developing a mailing list so that such- person can mail political notices on behalf of others to such students constitutes an invasion of the students’ privacy; the public interest in the release of such information does not outweigh the possibility of harm to the students involved, since there were other adequate means by which political information could be disseminated.
    9. Records — Colleges and Universities — Freedom of Information Act — Computer Tapes — Alternative Means of Disclosure — Statutes.
    The Michigan Freedom of Information Act does not require a state university to produce a copy of a computer tape which contains the names and addresses of the students enrolled at the university where that information can be released in a printed format which would not also result in the release of valuable technological data developed by the university at public expense which necessarily results from the release of a copy of the computer tape (MCL 15.231 et seq.; MSA 4.1801[1] et seq.).

      Richard W. Kinkade, for plaintiff.

      Leland W. Carr, Jr., and Byron H. Higgins, for defendants.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr. and P. J. Glennie, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   P. J. Glennie, J.

This case is before the Court on appeal by plaintiff upon denial of attorney fees and costs. Defendant Michigan State University cross-appeals on the issues of whether information on students’ names and addresses is exempt from disclosure under the Family Educational Rights and Privacy Act of 1974, 20 USC 1232g, and whether the Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq.; MSA 4.1801(1) et seq., requires a public body to give to private persons, at a nominal cost, items of proprietary interest owned by the public.

The history of this case began when plaintiff filed a complaint on October 6, 1978, in Ingham County Circuit Court, alleging that the defendants had violated the Michigan Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., by refusing to give the plaintiff a copy of a computer tape containing student information. Defendants answered that they would provide plaintiff with a computer print-out of the information contained on the tape, if the information was not exempt from the FOIA under § 13(l)(e).

On October 18, 1978, the trial court ordered defendants to create a duplicate magnetic tape containing the students’ names and addresses and to give the tape to the plaintiff until the conclusion of the November 1978, election, at which time the tape was to be returned to defendants. Plaintiff was ordered to pay reasonable costs for duplication. The trial court denied attorney fees, costs, disbursements or damages for the reason that the defendants’ denial of the request for the tape was not arbitrary or capricious and that the matter presented involved a valid question of first impression which could have a significant effect on the rights of third persons.

The FOIA explicitly outlines the conditions under which attorney fees and costs shall be awarded to the plaintiff.

MCL 15.240; MSA 4.1801(10) reads, in part:

"(4) If a person asserting the right to inspect or to receive a copy of á public record or a portion thereof prevails in an action commenced pursuant to this section, the court shall award reasonable attorneys’ fees, costs, and disbursements. If the person prevails in part, the court may in its discretion award reasonable attorneys’ fees, costs, and disbursements or an appropriate portion thereof. The award shall be assessed against the public body liable for damages under subsection (5).
"(5) In an action commenced pursuant to this section, if the circuit court finds that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall, in addition to any actual or compensatory damages, award punitive damages in the amount of $500.00 to the person seeking the right to inspect or receive a copy of a public record. The damages shall not be assessed against an individual, but rather be assessed against the next succeeding public body, not an individual, pursuant to whose function the public record was kept or maintained.”

Plaintiff contends that, since he prevailed in the action, § 10(4) required that the court order the defendants to pay attorney fees and costs. Originally, plaintiff requested a copy of the complete tape. The trial court ordered defendants to produce a copy of the names and addresses only and restricted its use to some extent. Under such circumstances, the trial court concluded that the plaintiff had only prevailed in part.

In cases of partial success, § 10(4) allows for the award of attorney fees and costs in the trial court’s discretion.

It is our opinion that the trial court did not abuse its discretion. We concur with the trial court’s decision denying attorney fees, costs, compensatory and punitive damages.

In defendants’ cross-appeal, we are asked to decide a question of first impression concerning the Family Educational Rights and Privacy Act (20 USC 1232g), specifically: whether that act prohibits the university from releasing confidential information about 44,000 students to the general public in a format and for uses not expressly consented to by those students.

Michigan State University is a constitutional body corporate, established pursuant to Const 1963, art 8, § 5. The university is charged with the responsibility of providing educational opportunities to the persons currently enrolled.

Plaintiff is a private individual who requested a copy of a university computer tape and the file layout of that computer tape. The tape contained the names, addresses, phone numbers, and other items of information with respect to students enrolled at Michigan State University.

Michigan State University annually prints a student directory which contains the names, local and permanent addresses, local phone numbers, year, major and numerous other items of student information. A computer tape is developed by the university in order to assist the printer in the mechanical printing process.

The trial court ruled that the students’ constitutional right to privacy would not be violated if only their names and addresses were released. The court further ruled that the FOIA required that the university duplicate and deliver to plaintiff a copy of the computer tape, rather than a computer print-out.

This issue requires interpretation of the Family Educational Rights and Privacy Act of 1974 (20 USC 1232g), and the regulations published pursuant thereto. Plaintiff contends that any document "prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function * * *” is a public record. MCL 15.232(c); MSA 4.1801(2)(c). Plaintiff further claims he is entitled to the computer tape under the FOIA, MCL 15.233(1); MSA 4.1801(3):

"Upon an oral or written request which describes the public record sufficiently to enable the public body to find the public record, a person has right to inspect, copy, or receive copies of a public record of a public body, except as otherwise expressly provided by Section 13.”

Michigan State University, because it is a recipient of Federal funds, falls within the purview of the Family Educational Rights and Privacy Act (Buckley Amendment; PL 90-247, Title IV, § 438 as amended; 20 USC 1232g, 45 CFR 99.1 et seq.).

The latter statute serves two functions. First, it provides access to student records by students and their parents. Second, it establishes the privacy of those records. The information contained in the records is classified as being educational, personally identifiable or directory information. 45 CFR 99.3 defines each type of record. The names and addresses requested by the plaintiff fall into two of these classifications: personally identifiable information and directory information.

Pursuant to 45 CFR 99.30, educational institutions are required to follow an explicit procedure before releasing any personally identifiable student information:

"(a)(1) An educational agency or institution shall obtain the written consent of the parent of a student or the eligible student before disclosing personally identifiable information from the education records of a student, other than directory information, except as provided in § 99.31.
"(2) Consent is not required under this section where the disclosure is up to (i) the parent of a student who is not an eligible student, or (ii) the student himself or herself..
"(b) Whenever written consent is required, an educational agency or institution may presume that the parent of the student or the eligible student giving consent has the authority to do so unless the agency or institution has been provided with evidence that there is a legally binding instrument, or a State law or court order governing such matters as divorce, separation, or custody, which provides to the contrary.
"(c) The written consent required by paragraph (a) of this section must be signed and dated by the parent of the student or the eligible student giving the consent and shall include:
"(1) A specification of the records to be disclosed.
"(2) The purpose or purposes of the disclosure, and
"(3) The party or class of parties to whom the disclosure may be made.
"(d) When a disclosure is made pursuant to paragraph (a) of this section, the educational agency or institution shall, upon request, provide a copy of the record which is disclosed to the parent of the student or the eligible student, and to the student who is not an eligible student if so requested by the student’s parents.”

45 CFR 99.30 thus requires that the university secure from the parent, or student over 18 years of age, a written, dated, signed document which specifies the disclosable data, the purpose of the disclosure, and the parties to whom the disclosure may be made. Michigan State University did not follow the procedure with respect to the personally identifiable information sought by the plaintiff.

The plaintiff asserts, however, that the university complied with another section of the statute, given that the names and addresses also constitute directory information and that the regulation describing the procedure for release of directory information was followed.

45 CFR 99.37 outlines the procedure to be followed by educational institutions prior to releasing directory information. It reads:

"(a) An educational agency or institution may disclose personally identifiable information from the education records of a student who is in attendance at the institution or agency if that information has been designated as directory information (as defined in § 99.1) under paragraph (c) of this section.
"(b) An educational agency or institution may disclose directory information from the education records of an individual who is no longer in attendance at the agency or institution without following the procedures under paragraph (c) of this section.
"(c) An educational agency or institution which wishes to designate directory information shall give public notice of the following:
"(1) The categories of personally identifiable information which the institution has designated as directory information;
"(2) The right of the parent of the student or the eligible student to refuse to permit the designation of any or all of the categories of personally identifiable information with respect to that student as directory information; and
"(3) The period of time within which the parent of the student or the eligible student must inform the agency or institution in writing that such personally identifiable information is not to be designated as directory information with respect to that student.”

45 CFR 99.37 thus requires the educational institution to give public notice of the type of information to be published, the right to forbid disclosure, and the time period within which a student or parent must act to forbid disclosure.

Defendant Michigan State University complied with the regulation insofar as publication of the student directory is concerned. Michigan State University contends, however, that the approval of the student can be construed only as applying to the publication of the student directory and not to the release of the magnetic tape, for which the signed permission of the student is required under 45 CFR 99.30.

The trial court held that the students’ names and addresses were included within both definitions when it stated:

"Standing alone, a name and address are not types of data which would easily or clearly trace, point out or mark an individual. Section 99.3 mentions other 'personal identifiers’ around which the law cloaks privacy.
"When compared with 99.3’s definition of directory, it is noted that name and address are also listed as directory-type data. Such interchangeableness among definitions tends to signal the data’s nature as sometimes deserving a higher cloak of privacy and sometimes a lower. Such is not the case with other personal or directory data.
"Without question, it is a difficult line to draw, but on these facts, the Court holds such data to be directory, thus Section 99.37 applies.”

That Congress recognized names and addresses as included within both classes of information is reflected in the wording of the regulations. 45 CFR 99.30(a)(1) requires written consent of the parent or student before disclosure of personally identifiable information other than directory information. This exempts from the written consent requirement data which is included in both definitions, so long as no purely personal information is released. Names and addresses only thus would not fall under 45 CFR 99.30(a)(1).

The notice published in the student handbook and Michigan State University Bulletin complies with the requirements of 45 CFR 99.37(c). It would therefore appear that the trial court’s order was not contrary to the Family Educational Rights and Privacy Act of 1974.

Another question which arises is whether the release of such information to plaintiff constituted a violation of the students’ right to privacy. The FOIA, § 13(l)(a), exempts from disclosure "[information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy”. The trial court determined that the release of the names and addresses was justified on the basis that the information released would be used to inform the students of political issues:

"There can be no question but that the disclosure of a person’s name and address does constitute an invasion of privacy. Disclosure of the magnetic tape would involve a release of each student’s address; information the student might wish to remain secret or selectively release [sic]. One consequence of any disclosure is that a student will be subject to unsolicited or unwanted mail and possibly offensive material. * * *
"The purpose for which Plaintiff seeks the magnetic tape is to assist in a political campaign mailing. Clearly, informing the electorate of candidates’ views and qualifications helps voters make intelligent choices in the democratic process. It is not a commercial purpose but political and necessary to the workings of a free society.
"On balance, while an invasion occurs, it is warranted in the public purpose. Exemption (a) does not prevent disclosure of the magnetic tape.”

In International Business Machines Corp v Dep’t of Treasury, 71 Mich App 526, 535; 248 NW2d 605 (1976), the Court, in discussing disclosure provisions, stated:

"The Michigan disclosure provisions are essentially an abbreviated version of the Federal Freedom of Information Act (FOIA), 81 Stat 54 (1967), 5 USCA 552. The close similarity between the Federal and state acts’ language makes constructions of the FOIA by the Federal courts persuasive in construction of our own disclosure requirements. Citizens for Better Care v Dep’t of Public Health, 51 Mich App 454, 463; 215 NW2d 576 (1974), lv den, 392 Mich 758 (1974).”

In Citizens for Better Care, the plaintiff sought disclosure of nursing home records kept by the Michigan Department of Health. The issue of patient privacy was resolved on the basis that the patients’ privacy could be safeguarded by deleting from the reports, prior to disclosure, any information indicating the identity of specific patients. 51 Mich App 454, 470. Such a solution is not possible in the present case since plaintiff specifically requested the names and addresses of Michigan State University students.

Two Federal cases have considered the question of whether the release of names and addresses constituted an unwarranted invasion of privacy. In Getman v National Labor Relations Board, 146 US App DC 209; 450 F2d 670 (1971), two law professors wanted a list of names and addresses of employees eligible to vote at NLRB elections. The NLRB denied their request, claiming that such a disclosure would constitute an invasion of the privacy of the voters. The court disagreed and stated:

"[0]ur first inquiry is whether disclosure of the names and addresses of employees constitutes an invasion of privacy and, if so, how serious an invasion. We find that, although a limited number of employees will suffer an invasion of privacy in losing their anonymity and in being asked over the telephone if they would be willing to be interviewed in connection with the voting study, the loss of privacy resulting from this particular disclosure should be characterized as relatively minor. Both the House and Senate reports on the bill which became the Freedom of Information Act indicate that the real thrust of Exemption (6) is to guard against unnecessary disclosure of files of such agencies as the Veterans Administration or the Welfare Department or Selective Service or Bureau of Prisons, which would 'intimate details’ of a 'highly personal’ nature. * * *
"In determining whether this relatively minor invasion of privacy is 'clearly unwarranted,’ we must also weigh the public interest purpose of appellees’ NLRB voting study, the quality of the study itself, and the possibility that appellees could pursue their study without the * * * lists.” (Footnotes omitted.) 146 US App DC 209, 213-214.

In Wine Hobby USA, Inc v United States Internal Revenue Service, 502 F2d 133 (CA 3, 1974), plaintiff sought a list of the names and addresses of persons filing for a permit to make wine for home use from the Bureau of Alcohol, Tobacco and Firearms. Plaintiff intended to send advertisements concerning its amateur wine-making equipment to the home wine-makers. The court held that the release of the names and addresses would constitute an invasion of privacy since the people on the list would be subjected to unsolicited and possibly unwanted mail. Since plaintiff was seeking the list for private commercial exploitation, no compelling public interest would be served by releasing the information. The pertinent language from that case is as follows:

"The disclosure of names of potential customers for commercial business is wholly unrelated to the purposes behind the Freedom of Information Act and was never contemplated by Congress in enacting the Act. In light of this failure by Wine Hobby to assert a public interest purpose for disclosure, we conclude that the invasion of privacy caused by disclosure would be 'clearly unwarranted,’ even though the invasion of privacy in this case is not as serious as that considered by the court in other cases, see e.g., Rose v Dep’t of the Air Force, 495 F2d 261 (2d Cir 1974). On balance, therefore, we believe that the list of names and addresses of the Form 1541 registrants is exempted from disclosure under § 552(b)(6) in the circumstances of this case.” (Footnote omitted.) 502 F2d 133, 137.

A person seeking information under the Michigan Freedom of Information Act is not generally required to divulge the reason for the request. Where an invasion of privacy may occur, however, the person seeking disclosure is required to show that the benefit to the public interest in releasing the information outweighs the possibility of harm to the people involved.

Section 1 of the FOIA states that it is the "public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees * * *. The people shall be informed so that they may fully participate in the democratic process.” MCL 15.231(2); MSA 4.1801(1)(2). The list of names requested by plaintiff is not related to the affairs of government in such a way as to constitute a basis for official decisions on the part of the university. The release of these names and addresses and the other information contained in the student directory does not assist the general public in such a way as to permit them to fully participate in the affairs of government. The only reason plaintiff desired the information in the form requested was to develop a mailing list so that plaintiff could engage in a commercial enterprise of mailing notices for and on behalf of other parties who pay for the service. We do not believe that this purpose outweighs the invasion of the students’ privacy which would result, particularly where plaintiff had other means of disseminating information of a political nature without discovering the names and addresses of the students. Plaintiff could have passed out leaflets at the dormitories, at rallies, and in the streets of East Lansing. Plaintiff could have made a general mailing to the electorate in the name of "occupant”. Michigan State University has a radio and television station which plaintiff could have employed to convey such political views. Plaintiff could also purchase the student directory at a nominal cost, when it became available.

This issue was discussed in a recent Florida decision. Byron, Harless, Schaffer, Reid & Assoc, Inc v Florida, 360 So 2d 83 (Fla App, 1978). Florida has a public records act which would require public officials and employees to save all notes and memoranda and make such documents available to the public. The court was faced with a demand by a television executive and the attorney general for the release of notes made by a consultant firm hired to interview and select the director of a utility company owned by a public agency. The court construed the notes made by the consultant as public records within the meaning of the Florida statute. It became clear to the court that, upon examining the notes, much of the information was highly confidential. In refusing to make these records available to the general public pursuant to the applicable statutes, the Florida court made the following observations:

"In general application, Florida’s public records law and its companion, the open public meetings law, promote a state interest of the highest order. By promoting open government and citizen awareness of its workings * * * [the statutes] enhance and preserve democratic processes. Florida’s interest in opening governmental processes to public inspection has repeatedly been emphasized in decisions of our Supreme Court.
"When fundamental privacy interests secured by the due process clauses of the United States and Florida Constitutions are implicated, however, it is not enough that the statute generally serves a compelling interest in disclosure of public records. There must be a compelling state interest in the public revelation of the particular information in which the prospects would otherwise enjoy privacy. To override constitutional privacy interests, a countervailing state interest must exist and be compelling at the point where those interests collide. When the public interest is not sufficiently compelling to override constitutional privacy interests in the particular information sought, an intrusive statute 'must be narrowly drawn to express only the legitimate state interests at stake,’ [Roe v Wade, 410 US at 155; 93 S Ct at 728; 35 L Ed 2d at 178] or its general terms must be appropriately narrowed in judicial application.” (Footnotes omitted.) 360 So 2d 83, 97.

One other factor bears significantly on our decision. It is a well established principle of law that public funds may not be used to support a private purpose. To require the university to surrender property of commercial value to a private party, when the information required can be released without surrendering the public property, contravenes this established rule of law. Const 1963, art 9, § 18, Skutt v Grand Rapids, 275 Mich 258; 266 NW 344 (1936).

Neither the preamble to the FOIA nor its purpose states that it was the intent of the Legislature to surrender publicly-owned property free of charge to private enterprise. Arnold v Ogle Construction Co, 333 Mich 652; 53 NW2d 655 (1952), People v Stanley, 344 Mich 530; 75 NW2d 39 (1956), Butcher v Grosse Ile Twp, 387 Mich 42; 194 NW2d 845 (1972). The computer tape which plaintiff requested constitutes publicly-owned property of commercial value aside from the information contained thereon. Defendant thus should not have been required to provide plaintiff with such property.

In General Services Administration v Benson, 415 F2d 878, 880 (CA 9, 1969), the following principle of law was enunciated:

"In exercising the equity jurisdiction conferred by the Freedom of Information Act, the court must weigh the effects of disclosure and nondisclosure, according to the traditional equity principles, and determine the best course to follow in the given circumstances. The effect on the public is the primary consideration.”

It is evident there is a tendency to interpret the FOIA as a freedom of public records act. When a statute is so broad that it makes all information available to anyone for any purpose, the court has an obligation to narrow its scope by judicial interpretation.

It is our opinion that the computer tape is exempt from release under § 13(a) of the FOIA for the reason that the public purpose of dissemination of political views could have been accomplished by other means without invading the privacy of the individual students. The FOIA provides for freedom of information, not freedom to acquire valuable technological data which was developed at public expense, nor highly personal and sensitive information through records maintained by the university. Finally, release of the information would not further the purpose of the FOIA since plaintiff sought this information for commercial gain, not so that he might be able to monitor governmental affairs.

Reversed. No costs, a public question being involved.


source: Caselaw Access Project

author: Danhof, C.J.

license: Public Domain

text:
    PEOPLE v CHAMPION
    Docket No. 43108.
    Submitted February 7, 1980, at Grand Rapids.
    Decided April 22, 1980.
    Defendant, Christopher Lee Champion, was convicted of second-degree murder in the Kalamazoo Circuit Court, Patrick H. McCauley, J. Defendant appeals raising several issues. Held:

    1. Out-of-court statements of a declarant are admissible against a defendant where there existed a concert of action or conspiracy between defendant and the declarant and the statements were made while the common scheme or plan was still in effect. Evidence, independent of the statements, connecting the defendant with the conspiracy must be presented for the statements to be admissible.
    2. Reversible error does not result from failure to give cautionary instructions to the jury in response to a prosecutor’s closing argument where appropriate instructions would have cured any prejudice and instructions were not requested.
    3. Where defense counsel fails to object to improper cross-examination by the prosecutor, a conviction will only be reversed when necessary to prevent a miscarriage of justice.
    4. An aider and abettor may be indicted, tried and, on conviction, punished as a principal.
    Affirmed.
    1. Criminal Law — Evidence — Hearsay — Out-of-Court Statements — Concert of Action — Conspiracy — Rules of Evidence.
    Out-of-court statements of a declarant are admissible against a defendant where there existed a concert of action or conspiracy between defendant and the declarant and the statements were made while the common scheme or plan was still in effect; evidence, independent of the statements, connecting the defendant with the conspiracy must be presented for the statements to be admissible (MRE 801[d][2]).

      References for Points in Headnotes
    [1] 16 Am Jur 2d, Conspiracy § 46 et seq.

    [2] 75 Am Jur 2d, Trial §§ 317, 577, 906.
    [3] 5 Am Jur 2d, Appeal and Error § 545 et seq.

    [4] 21 Am Jur 2d, Criminal Law §§ 120, 130.

      2. Criminal Law — Argument of Counsel — Curative Instructions.
    Reversible error does not result from failure to give cautionary instructions to the jury based on alleged improprieties in a prosecutor’s closing argument where appropriate instructions would have cured any prejudice and instructions were not requested.
    3. Appeal — Criminal Law — Cross-Examination — Miscarriage of Justice — Preserving Question.
    A criminal conviction will be reversed on appeal because of improper cross-examination by the prosecution only when necessary to prevent a miscarriage of justice where defense counsel failed to object at trial to the improper questions.
    4. Criminal Law — Indictment and Information — Aider and Abettor — Principal — Due Process.
    An aider and abettor may be indicted, tried and, on conviction, punished as a principal.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stephen M. Wheeler, Principal Appellate Attorney, for the people.

      Carl Ziemba, for defendant on appeal.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   Danhof, C.J.

Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, on September 1, 1978. On December 26, 1978, he was sentenced to life imprisonment. He appeals as of right.

Defendant was originally charged with first-degree murder on the theory that he aided and abetted his friend, Steve Massias, in a premeditated plot to kill Massias’s ex-girlfriend, Karen "Katy” Taylor.

The testimony offered by the people at trial revolved around the actions of defendant, Steve Massias, and Larry Martin on March 7 and 8, 1978, as told by Larry Martin. Defendant and Martin had lunch and dinner together on March 7, 1978. They went to Big Daddy’s bar in Kalamazoo around 7 p.m. Steve Massias and Mark and Karl Waber joined them there. They drank and shot pool until approximately 9, when defendant drove them to a topless dancing establishment called "Club Zorba” on Massias’s suggestion. Massias’s ex-girlfriend Katy worked there as a dancer. They stayed for approximately one hour drinking and watching Katy dance. While at Club Zorba, Massias asked Martin for a gun. Martin refused. The five of them then returned to Big Daddy’s, dropped off the Wabers, and proceeded to defendant’s parents’ house where defendant obtained a shotgun and shells for Massias. They drove to defendant’s house where Massias test fired the shotgun. After defendant removed a jammed, spent shell casing, they returned to Club Zorba, drank more, played pool, and watched Katy dance. Martin, overcome by tiredness and liquor, went to the car. At some point defendant joined him. Massias waited in the bar until Katy called a taxicab, returned to the car, loaded the shotgun, and, while the car was parked within sight of the bar entrance, said, "If I don’t get her here, we’ll get her at her apartment”. When the taxi pulled up in front of the bar, defendant drove the car in front of the taxi. Massias yelled directions and defendant backed the car around behind the taxi. When Katy and another woman came out of the bar at approximately 2 a.m., Massias fired three shots, killing Patricia Williams. As they sped off, Massias said, "I shot the wrong fucking bitch”. They went to defendant’s house. Defendant returned the shotgun to his parents’ house and they all slept until 7:30 the next morning. Defendant drove Martin to work the next day and then drove Massias to Chicago in his father’s pick-up truck.

Defendant testified that Massias kept asking for a gun because Massias was afraid of some people from New Orleans. Defendant agreed to loan Massias his father’s gun if given $300 as security. After the test firing, they went to Club Zorba to look for "Pete” who had Massias’s money. He left the bar with Martin and waited in the car for one half hour. Defendant became sick and briefly left the car. When he returned, Massias was sitting in the front passenger seat holding the shotgun. Massias had indicated that he was afraid for Katy (referring to the people from New Orleans) and wanted to pick her up in order to protect her. Defendant drove up next to the taxi, then backed up to park behind the taxi because he was low on gas. When Katy came out, Massias shot at her. Defendant testified that he had no knowledge that Massias would shoot.

Defendant first argues that he was deprived of his right to confront the witnesses against him when the trial court, over objection, admitted alleged hearsay statements by finding a concert of action.

The people concede that the testimony was hearsay but argue that the court was correct in finding a concert of action.

The out-of-court statements of a declarant are admissible against a defendant if there exists a concert of action or conspiracy between defendant and the declarant and the statements are made while the common scheme or plan is still in effect. See People v Trilck, 374 Mich 118; 132 NW2d 134 (1965), People v Shepherd, 63 Mich App 316, 322; 234 NW2d 502 (1975). Under MRE 801(d)(2), such statements are not hearsay at all. The statements are not admissible, however, unless there is evidence, independent of the statements, connecting the defendant with the conspiracy. People v 68th Dist Judge, 44 Mich App 553, 554; 205 NW2d 608 (1973). The Michigan Supreme Court has indicated that the independent evidence must prove a prima facie case of concert of action or conspiracy. People v Stewart, 397 Mich 1, 8-9; 242 NW2d 760 (1976), modified 400 Mich 540; 256 NW2d 31 (1977).

We hold that the statements were properly admitted against defendant because a prima facie case of concert of action was shown.

Defendant also argues that he was deprived of his right to a jury trial when the trial court made this ruling before the jury:

"THE COURT: Okay, gentlemen, based upon the case law as I understand the case law, this is — I’ve already ruled this concerted action has been established. I’ve also ruled it’s a part of the res gestae as what happened to indicate up to and including the time of the murder. The objection is overruled. You may answer.”

Defendant claims that the. judge’s comments made the jury’s resolution of the two questions before the jury a foregone conclusion, i.e., that murder was committed and that defendant aided and abetted Massias in committing it.

While we deplore comments such as these which could be given undue weight by the jury, we conclude that the comments, standing alone, do not require reversal. The trial court instructed the jury several times during the trial that its rulings on evidence do not reflect any personal opinions and that the jury must not give them any weight.

Defendant next argues that he was deprived of his right to a fair trial when the prosecutor made misstatements of fact in his final argument to the jury:

"We indicate to you and submit that the evidence shows that Christopher Champion intended his actions. And you can infer intent because a shotgun was used. He got the weapon, the weapon was test fired and he unjammed the weapon, he positioned that car, he was lying in wait for someone to walk out of that Club Zorba and kill and it was malicious, there was malicious, there was malice involved, he created this high risk situation and if there isn’t malice when then what is the testimony of Larry Martin which Missias says, 'We got the wrong fucking bitch’? Doesn’t look like any kind of sadness to me, that’s what the testimony is that Missias said. ” (Emphasis added.)

Defendant correctly points out that Massias said he had shot the wrong woman, not "we”.

After defendant’s closing argument, the prosecutor argued:

"And he misses a critical part of Red Martin’s testimony. You’ll remember that when Red testified you were out in the hall, in the hall when he did it, there was some rulings and so some law when you came back Mr. Deryck asked Red, 'You didn’t plot with anybody, did you?’ 'No, I didn’t.’ 'Because you didn’t hear anybody plot anything, you didn’t hear anybody say we were going to get Katie?’ 'Yeah, I did, I just don’t remember who. Sure did.’ ”

Again, defendant correctly points out that Larry Martin denied hearing plotting of any kind.

Since defendant failed to object to the allegedly improper remarks, appellate review is precluded unless it can be said that an objection and the appropriate curative instruction could not have eliminated the prejudice arising from the prosecutor’s argument. People v Hall, 396 Mich 650, 655; 242 NW2d 377 (1976), People v McLendon, 51 Mich App 543, 547; 215 NW2d 742 (1974), People v Humphreys, 24 Mich App 411, 416; 180 NW2d 328 (1970). We believe that appropriate cautionary instructions, given on request, would have cured any error. Both challenged comments were misstatements of fact which could have been corrected by the trial court. Further, at the beginning of his argument, the prosecutor alerted the jurors to possible misstatements by counsel, telling them to rely on their own recollection. In addition, the trial court instructed the jury that arguments of counsel are not evidence and that they should disregard anything said which is not supported by the evidence.

Defendant also argues that he was deprived of his right to a fair trial by the prosecutor’s cross-examination of defendant. Defendant claims that the prosecutor threw the skunk of suggestion into the jury box by incorporating unsubstantiated prejudicial statements into many of the questions asked of defendant.

It must first be noted that defense counsel did not object to the prosecutor’s cross-examination. Thus, we will not reverse unless we find a miscarriage of justice. People v Stoudemire, 65 Mich App 664, 668; 238 NW2d 365 (1975), People v Wilson, 40 Mich App 290; 198 NW2d 424 (1972). We find no miscarriage of justice on these facts. The jury was properly instructed by the trial court that the questions which attorneys ask of witnesses are not evidence; only answers are evidence.

We have reviewed defendant’s other allegations of error and conclude that reversal is not required. The trial court did not abuse its discretion when it admitted three photographs of the deceased. See People v Nard, 78 Mich App 365; 260 NW2d 98 (1977). Under MRE 405(a), the people are allowed to inquire into specific instances of conduct on cross-examination where defendant offered testimony as to reputation. The claimed error in the trial court’s instruction on first-degree murder is harmless because defendant was convicted of second-degree murder (the remedy for the alleged error would be a remand for entry of a second-degree murder conviction). See People v Milton, 81 Mich App 515; 265 NW2d 397 (1978), modiñed 403 Mich 821 (1978). The trial court’s instructions on aiding and abetting, taken from the proposed Criminal Jury Instructions, were a clear and proper statement of the law. The jury was entitled to infer from the facts before them that defendant aided and abetted Massias in the homicide. Defendant’s statements to the polygraph éxaminer were properly admitted for the purpose of impeachment. People v Powell, 76 Mich App 237; 256 NW2d 583 (1977). Finally, under Michigan law, defendant was properly charged as a principal; it is not required that he be charged as an aider and abettor. People v Hooper, 50 Mich App 186; 212 NW2d 786 (1973).

Affirmed.

       Martin was granted immunity in exchange for testifying.


author: Bashara, J.

text:
    BRAY v DEPARTMENT OF STATE
    Docket No. 43329.
    Submitted January 2, 1980, at Detroit.
    Decided April 22, 1980.
    Leave to appeal applied for.
    Willie Bray and others filed a class action against the State of Michigan, its governor and other departments seeking a refund of one-half of the 1973 fee paid by plaintiffs to the Motor Vehicle Accident Claims Fund (MVACF) under the Motor Vehicle Accident Claims Act (MVACA). Prior to 1973, a fee of $45 entitled an uninsured motorist to drive his uninsured vehicle until April 1 of the following year. The no-fault act was passed, which allowed driving under MV ACA only until October 1, 1973. Plaintiffs alleged both constitutional and nonconstitutional grounds for recovery. Wayne Circuit Court refused to consider the constitutional claims since, in its opinion, the case could be decided according to state law. The court determined that the fee represented a license and that plaintiffs were entitled to a 50% refund. The Court of Appeals affirmed the lower court but held that the fee was in the nature of an insurance premium rather than a license. Bray v Dep’t of State, 69 Mich App 172; 244 NW2d 619 (1976). The Court also ruled that individuals harmed by uninsured motorists had priority in payment from MVACF. The case was remanded to the trial court to determine whether the fund’s reserve was sufficient to satisfy both types of claimants. On remand, the trial court, Horace W. Gilmore, J., entered an amended order which permitted plaintiffs to renew their constitutional claims. The court then decided the constitutional issues against defendants and an immediate refund was ordered. Defendants appeal. On appeal defendants contend the circuit court was without power to decide the constitutional issues, that the immediate refund order is inconsistent with the holding of the Court of Appeals that plaintiffs’ claims were subordinate and that, although plaintiffs’ constitutional claims were not considered by either court, res judicata acts as a bar to such consideration. Held:

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 962.
    [2] 46 Am Jur 2d, Judgments §§ 477, 478.
    [3] 16 Am Jur 2d, Constitutional Law § 172.
    [4] 7 Am Jur 2d, Automobiles and Highway Traffic §§ 50, 53, 93.
    [5] 16A Am Jur 2d, Constitutional Law §§ 580, 584-586.
    [6] 16A Am Jur 2d, Constitutional Law § 598.

      1. A lower court, on remand, may take such action as law and justice require so long as it is not inconsistent with the judgment of the appellate court. Defendants’ contention that the trial court’s order mandating an immediate refund is inconsistent with the remand order that plaintiffs’ claims be subordinate is an argument which ignores the fact that the remedy provided by the Court of Appeals was based on a different cause of action.
    2. The constitutional claims which formed the basis of the action were not litigated because there existed an independent state law ground for the holding. This is in conformity with the rule that a court will not pass upon a constitutional question if there is some other ground upon which the case may be decided. The action was not barred by res judicata.
    3. Plaintiffs’ constitutional rights were violated. All Michigan motorists have a significant property interest in being able to register and operate a motor vehicle. Insurance policies are valid contracts and therefore are subject to Fifth Amendment guarantees which command that property not be taken without making just compensation. This includes partial destruction or diminution in value. When the no-fault act became effective October 1, 1973, plaintiffs’ contract of insurance with the state was terminated. The contract rights taken by the state are represented by the premium for the unexpired portion of the contract which was determined to be $22.50. That money was previously placed in the MVACF and used to recompense members of the public injured by uninsured motorists. Plaintiffs are entitled to a refund whether or not the MVACF is solvent. Otherwise, plaintiffs would be left with a constitutionally compelled remedy with no means of satisfaction.
    Affirmed.
    1. Courts — Remand — Cause of Action — Remedies — Inconsistent Causes and Remedies.
    A lower court, on remand, may take such action as law and justice require so long as it is not inconsistent with the judgment of the remanding court; it is the cause of action and not the remedy which must not be inconsistent and a remedy provided by the lower court, after remand, will stand where the remedy supplied by the Court of Appeals in its remand was based on a different cause of action.

      2. Judgment — Res Judicata — Merits — Issues — Privies — Reasonable Diligence.
    A judgment, to constitute a bar to a claim in a subsequent action, must be rendered upon the merits, upon the same matter in issue and between the same parties or their privies; a plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.
    3. Courts — Constitutional Law — Constitutional Questions — Other Grounds.
    A court will not pass upon a constitutional question, even though properly presented, if there is also present some other ground upon which the case may be disposed of.
    4. Automobiles — Motorists — Register and Operate — Property Interest.
    All Michigan motorists have a significant property interest in being able to register and operate a motor vehicle.
    5. Contracts — Insurance Policies — Constitutional Law — Fifth Amendment.
    Valid contracts are property; insurance policies are contractual in nature and therefore come within the constitutional guarantees of the Fifth Amendment which commands that property not be taken without making just compensation; even a partial destruction or diminution in the value of a contract is a taking which requires compensation.
    6. Constitutional Law — Judgments — Remedies — Disbursement Before Judgment.
    Disbursement of specific funds by the state before judgment is not a sufficient justification to deny a constitutionally compelled remedy.

      Harry S. Ellman, and Barris, Sott, Denn & Driker (by Donald E. Barris, Sharon M. Woods and Barbara Shaw Harvey), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bil

      itzke, Warren R. Snyder and William B. Wreford, Assistants Attorney General, for defendants.
    Before: T. M. Burns, P.J., and Bashara and N. J. Kaufman, JJ.
   Bashara, J.

This case makes its second appearance before our Court. Plaintiffs initiated the present class action to obtain a refund of one-half of the 1973 fee paid pursuant to the Motor Vehicle Accident Claims Act, MCL 257.1101 et seq.; MSA 9.2801 et seq. (hereinafter referred to as MV ACA). Payment of the fee entitled plaintiffs, who were uninsured motorists, to drive for a twelve-month period ending April 1, 1974. However, as of October 1, 1973, all Michigan motorists were required to purchase no-fault automobile insurance. MCL 500.3101; MSA 24.13101. Plaintiffs claim that the no-fault act vitiated their rights under the MVAC A.

Plaintiffs alleged both constitutional and non-constitutional grounds for recovery. The trial court refused to consider the constitutional claims since, in its opinion, the case could be decided according to state law. The circuit court determined that the fee represented a license and that plaintiffs were entitled to a 50% refund. The court ordered an amount equal to the refund placed in escrow pending final resolution of the case.

This Court affirmed the lower court, but held that the fee was in the nature of an insurance premium rather than a license. Bray v Dep’t of State, 69 Mich App 172; 244 NW2d 619 (1976), lv den 397 Mich 851 (1976). The Court further ruled that the class of individuals harmed by uninsured vehicles had priority in receiving payment from the Motor Vehicle Accident Claims Fund, MCL 257.1103; MSA 9.2803 (hereinafter referred to as MVACF). The partial fee refunds to which plaintiffs were entitled were subordinated to the claims of that class.

The Court noted that at the time of the decision, the three-year statute of limitations of the MV ACA (MCL 257.1118; MSA 9.2818) had not yet run. As such, the Court was unable to determine whether the fund’s reserve was sufficient to satisfy the claims of both the plaintiffs and persons harmed by uninsured motorists. Accordingly, the case was "remanded for further proceedings not inconsistent with this opinion”. Bray, supra, 182.

On July 22, 1977, the circuit court entered an amended final order in compliance with this Court’s opinion. The lower court further ordered that plaintiffs would be permitted to renew their constitutional claims, since they had not previously been considered. The constitutional issues were decided against defendants and an immediate refund ordered. The refund was to be paid from the state’s general fund without regard to the solvency of the MVACF. Defendants appeal from this decision.

Defendants first argue that the circuit court was without power to decide the constitutional issues. It is claimed that the lower court disregarded the law of the case and violated the doctrine of res judicata.

A lower court on remand may "take such action as law and justice require so long as it is not inconsistent with the judgment of the appellate court”. Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959), Meyering v Russell, 85 Mich App 547, 552; 272 NW2d 131 (1978).

Defendants contend that the trial court’s order mandating an immediate refund is inconsistent with this Court’s holding that the plaintiffs be subordinated to other claimants of the MVACF. This argument ignores the fact that the remedy provided by the Court of Appeals was based on a different cause of action. It is the cause of action and not the remedy which must not be inconsistent.

Plaintiffs’ constitutional claims were expressly not considered by the trial court nor by this Court on appeal.

Defendants nevertheless maintain that res judicata acts as a bar to such consideration.

The doctrine of res judicata is defined in Curry v Detroit, 394 Mich 327, 332; 231 NW2d 57 (1975), quoting Tucker v Rohrback, 13 Mich 73 (1864), as follows:

"A judgment, to constitute a bar to a claim in a subsequent action, must be rendered upon the merits, upon the same matter in issue and between the same parties or their privies.”

In determining the issue of whether a matter must have been actually litigated, the Curry Court, quoting Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965), stated:

"The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

We find that the present action is not barred by res judicata. The constitutional claims which formed the basis of the present action were not litigated because there existed an independent state law ground for the holding. This is in conformity with the rule that a "court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of’. Ashwander v Tennessee Valley Authority, 297 US 288, 347; 56 S Ct 466; 80 L Ed 688 (1936) (Brandeis, J., concurring).

Having determined that the constitutional issues were properly before the court, we must next decide whether any of plaintiffs’ constitutional rights were violated.

Plaintiffs contend that the right to register and drive their vehicles between October 1, 1973, and April 1, 1974, was a property interest entitled to protection under both the "Due Process” and "Taking” clauses of the Fifth Amendment to the Constitution. US Const, Am V, Am XIV.

Specifically plaintiffs argue that the termination of their rights under the MV AC A was a deprivation of property without due process of law, and a taking for public use without just compensation. US Const, Am V, Am XIV.

In reviewing the no-fault act, our Supreme Court recently recognized that all motorists have a significant property interest in being able to register and operate a motor vehicle. Shavers v Attorney General, 402 Mich 554, 598; 267 NW2d 72 (1978):

"In Michigan the independent mobility provided by an automobile is a crucial, practical necessity; it is undeniable that whether or not a person can obtain a driver’s license or register and operate his motor vehicle profoundly affects important aspects of his day-today life.”

Moreover, we are bound by our previous conclusions in Bray v Dep’t of State, supra, insofar as they affect our analysis of the issues then under consideration. Taines v Munson, 42 Mich App 256, 259; 201 NW2d 685 (1972). In Bray, this Court after concluding that the $45 fee was neither a license fee nor tax said:

"The $45 fee thus could be said to represent an annual insurance premium paid by those who have not acquired private insurance policies.” Bray, supra, 178.

An insurance policy is contractual in nature and contracts are certainly within the purview of the Fifth Amendment. Lynch v United States, 292 US 571; 54 S Ct 840; 78 L Ed 1434 (1934), Houston & Texas Central R Co v Texas, 170 US 243; 18 S Ct 610; 42 L Ed 1023 (1898).

The Lynch Court’s analysis of the problem, applied to the Federal government, is closely akin to the issue presented in the present case:

"The Fifth Amendment commands that property be not taken without making just compensation. Valid contracts are property, whether the obligor be a private individual, a municipality, a state, or the United States. Rights against the United States arising out of a contract with it are protected by the Fifth Amendment. United States v Central Pacific R. Co., 118 U.S. 235, 238, United States v Northern Pacific Ry. Co., 256 U.S. 51, 64, 67. When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals. That the contracts of war risk insurance were valid when made is not questioned. As Congress had the power to authorize the Bureau of War Risk Insurance to issue them, the due process clause prohibits the United States from annulling them, unless, indeed, the action taken falls within the federal police power or some other paramount power.” 292 US 571, 579. (Footnotes omitted.)

Similarly, Justice Adams, speaking for a unanimous Michigan Supreme Court in Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 642; 178 NW2d 476 (1970), quoted with approval from Pearsall v Board of Supervisors of Eaton County, 74 Mich 558, 561, 562; 42 NW2d 77 (1889):

"' "A partial destruction or diminution in value is a taking.” Mills, Em. Dom. § 30; Pumpelly v. Green Bay Company (1871), 80 US (13 Wall) 166, 177 (20 L Ed 557); Cushman v. Smith (1852), 34 Me 247; Grand Rapids Booming Company v. Jarvis (1874), 30 Mich 308.
" 'If the public take any action which becomes necessary to subserve public use, and valuable rights of an individual are thereby interfered with, and damaged or destroyed, he is entitled to the compensation which the constitution gives therefor, and such damage or destruction must be regarded as a "taking.” ’ ”

Justice Adams went on to state for the Buckeye Court:

"This Court has applied the constitutional restriction to a variety of takings; for example, to situations of trespass from flooding waters escaping from artificial reservoirs, Ashley v. City of Port Huron (1877), 35 Mich 296; Herro v. Chippewa County Road Commissioners (1962), 368 Mich 263 [118 NW2d 271]; to a violation of building restrictions on private property by a city in undertaking to erect a fire station, Allen v. City of Detroit (1911), 167 Mich 464 [133 NW 317]; and to a city’s abortive condemnation proceedings for urban renewal, ultimately abandoned after ten years, In re Urban Renewal, Elmwood Park Project (1965), 376 Mich 311 [136 NW2d 896].
"Courts of other states have applied similar provisions in their state constitutions to factual situations corresponding to those of this case.”

When the no-fault act became effective on October 1, 1973, plaintiffs’ "contract of insurance” with the state was effectively terminated. The contract rights taken by the state are represented by the "premium” for the unexpired portion of the contract which was determined to be $22.50. That money was previously placed in the MVACF and used to recompense members of the public injured by uninsured motorists.

Having decided that plaintiffs had a property interest which was taken by the state, we must now determine whether there was just compensation for the taking.

In our previous decision in this case, we held, as a matter of state law, that plaintiffs had a right to a refund from the MVACF, but only after other claims against the fund were first satisfied. It now appears that the MVACF is inadequate to satisfy both groups of claimants, thereby leaving plaintiffs a right without a remedy.

In Hays v Regents of the University of Michigan, 53 Mich App 605, 611-612; 220 NW2d 91 (1974), this Court denied the plaintiffs a constitutionally compelled refund because the funds sought had already been budgeted and disbursed. The Supreme Court peremptorily reversed, indicating that prior disbursement was not a sufficient justification to deny a constitutionally compelled remedy. Hays v Regents of the University of Michigan, 393 Mich 756; 223 NW2d 276 (1974). See also, Ward v Board of Commissioners of Love County, 253 US 17; 40 S Ct 419; 64 L Ed 751 (1920).

We conclude that plaintiffs are entitled to a refund without regard to the solvency of the MVACF. In light of this conclusion, it is unnecessary to address plaintiffs’ other constitutional arguments.

Affirmed. No costs, a public question involved.


author: D. F. Walsh, J.

text:
    ALLOS v LIQUOR CONTROL COMMISSION
    Docket No. 43699.
    Submitted February 20, 1980, at Detroit.
    Decided April 22, 1980.
    Nuhad Alios, doing business as Harry’s Opdyke Market, applied to the Liquor Control Commission for a specially designated distributor license. The commission ordered consideration of the application to be held in abeyance pending a decision by the Court of Appeals in another case. After that decision, and in response to it, the commission promulgated an emergency rule forbidding issuance of a license to any establishment located within one-half mile of another licensee. The commission then denied Alios’ application based upon the newly-promulgated rule. Alios sought a reversal of the denial in Oakland Circuit Court, which dismissed her action, Francis X. O’Brien, J. Alios appeals. Held:

    The commission’s action in holding the application in abeyance until after the commission "promulgated the emergency rule in response to a Court of Appeals decision and in then basing the denial of the application on that rule was arbitrary and an abuse of discretion. The application should have been evaluated on the basis of the rules and regulations h^ effect on the date of the denial of rehearing in the other Court of Appeals case.
    Reversed and remanded.
    Administrative Law — Licensing — Emergency Rules — Denial of Application.
    An administrative agency may not, when an issue is before the courts, place an application for a license in abeyance pending judicial resolution of the issue and then, after an adverse ruling on the issue, continue to hold the application in abeyance while promulgating emergency rules in response to the court’s ruling and then deny the application on the basis of the newly-promulgated rules.
    References for Points in Headnote
    [1] 1 Am Jur 2d, Administrative Law §§ 140, 186.
    51 Am Jur 2d, Licenses and Permits §§ 53, 104-106.

      Roger S. Canzano, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and A. C. Stoddard and Richard I. Rubin, Assistants Attorney General, for defendant.
    Before: Bashara, P.J., and T. M. Burns and D. F. Walsh, JJ.
   D. F. Walsh, J.

Plaintiff Nuhad Alios, d/b/a Harry’s Opdyke Market, appeals the circuit court’s dismissal of her complaint for reversal of defendant Liquor Control Commission’s denial of her application for an SDD (specially designated distributor) license.

On September 24, 1975, defendant received from plaintiff an application for an SDD license. Plaintiff was informed that her application would be considered along with those of other applicants seeking similar licenses for establishments in close proximity to plaintiff’s store. On January 26, 1976, an SDD survey was ordered concerning plaintiff’s application. The survey was conducted in February. In a June 1, 1976, order, the commission authorized an investigation of plaintiff’s request for a license. A formal application was sent to plaintiff on June 10, 1976. The commission received the completed application on June 21, 1976. Protest letters were sent to the commission by an area merchant, complaining about the possible issuance of an SDD license to plaintiff On August 12, 1976, plaintiff passed an examination required of SDD applicants. The commission investigator completed his report in August and recommended that plaintiff’s request be granted. In a report dated September 18, 1976, the chief of police stated his opinion that the license should be granted.

On October 25, 1976, the commission scheduled a protest hearing concerning plaintiff’s application. On November 16, 1976, the enforcement division investigator was asked to determine the exact distances from plaintiff’s store to two SDD outlets in its vicinity. The investigator reported on November 30 that plaintiff’s store was 2,347 feet from one of the outlets and 1,660 feet from the other. On December 15, 1976, the October 25 order was rescinded and the commission ordered that consideration of plaintiff’s application "be held in abeyance pending a rehearing in the case of Mallchok v Liquor Control Commission [72 Mich App 341; 249 NW2d 415 (1976)]”.

In a February 8, 1977, letter to the commission, plaintiff’s counsel reminded the commission that Mallchok had been decided and indicated his hope that plaintiff’s request for a license would be approved.

On February 28, 1977, the commission denied plaintiff’s request for an SDD license. Denial was based on emergency rule 47(2), which embodied the commission’s "half-mile policy”. (Plaintiff’s store was, as noted above, less than one-half mile from two existing SDD outlets.) The commission affirmed its February 28 order on August 15, 1977. On appeal, the circuit court affirmed the denial of plaintiff’s request for an SDD license. We reverse.

In its November 22, 1976, decision in Mallchok v Liquor Control Comm, supra, this Court ruled that, in order to rely on its half-mile policy in denying applications for SDD licenses, the Liquor Control Commission was required to "promulgate, process and publish” that policy according to the rule-making procedures set forth in the Administrative Procedures Act. MCL 24.231 et seq.; MSA 3.560(131) et seq., 72 Mich App at 347. Mr. Mallchok’s application for an SDD license had been denied primarily due to the half-mile policy. The Court reversed the circuit court’s affirmance of the commission’s denial and remanded to the commission:

"to reevaluate plaintiff’s application measured by all existing promulgated, published and processed rules and regulations as of August 27, 1973, the date of the final order.” Id., 348.

The Court ruled that, "[ajbsent rules or regulations constituting grounds for denial”, Mr. Mallchok was to be granted a license.

On January 10, 1977, this Court denied the Mallchok parties’ motions for rehearing.

Pursuant to MCL 24.248; MSA 3.560(148), the Liquor Control Commission promulgated emergency rule 47(2), effective February 18, 1977. The rule provides:

"An application for a new specially designated distributor license, or for the transfer of location of an existing specially designated distributor license, shall not be approved by the Commission where there is an existing specially designated distributor license located within 2,640 feet, measured along the nearest traffic route. A specially designated distributor license, issued in conjunction with an on-premise license, is excluded from this provision. The Commission may waive this prohibition where the proposed location is separated from the existing specially designated distributor licensee by a major highway of not less than 4 lanes, or where the proposed licensed establishment is located in a separate shopping center.” 1954 Michigan Administrative Code, Supp 90, p 44.

In our view, the commission impermissibly relied on emergency rule 47(2) in denying plaintiff’s application for an SDD license. We find the Mallchok rationale and result fully applicable to the facts of this case. When plaintiff filed her application there was no half-mile rule; nor had the commission initiated rule-making procedures concerning its half-mile policy. The commission’s continuation of the hold on plaintiff’s application after Mallchok was decided, subsequent promulgation of the emergency rule and denial based solely thereon were arbitrary and an abuse of administrative discretion. MCL 24.306(l)(e); MSA 3.560(206)(l)(e).

We emphasize that we find error only in the continuation of delay following Mallchok. The commission did not err in its decision to hold plaintiff’s application in abeyance pending consideration of its motion for rehearing in Mallchok. If this Court had ruled that denial of Mr. Mallchok’s application based on the half-mile policy was permissible, the commission could have similarly denied plaintiff’s application. However, once Mallchok was decided and rehearing was denied, the commission was obligated to treat plaintiff’s application just as this Court ordered it to evaluate that of Mr. Mallchok — i.e., without consideration of the half-mile policy or rule._

We reverse the circuit court’s order and remand to the commission for reevaluation of plaintiff’s application in light of promulgated, published and processed rules and regulations which existed on January 10, 1977, when this Court denied rehearing in Mallchok.

Reversed and remanded.

       No application for leave to appeal was made in the Supreme Court.

       The rule has since been promulgated as a nonemergency rule. • 1978 AACS R 436.1133.

        Cf., Price v Oakfield Twp Board, 188 Mich 524; 154 NW 657 (1915).

       Although this Court ordered reevaluation of Mr. Mallchok’s application in light of rules in existence at the time of the "final order”, the clear import and intent of the holding was to require reevaluation without consideration of the half-mile policy or of a half-mile rule subsequently adopted.


author: Bashara, P.J.

text:
    PEOPLE v DUMONT
    Docket No. 43728.
    Submitted February 21, 1980, at Detroit.
    Decided April 22, 1980.
    Daniel E. Dumont was found guilty of malicious destruction of property and resisting and obstructing a police officer, but mentally ill, St. Clair Circuit Court, Halford I. Streeter, J. Defendant appeals, claiming that the trial judge should have appointed a neurological expert, as requested by the defendant. Held:

    1. A defendant’s request for a neurological expert after a routine competency report was filed should have been granted where his history showed that he had previously been a mental patient and that previous neurological examinations had been performed and revealed abnormality and severe brain damage and that his behavior in jail while awaiting trial was bizqrre and irrational, resulting in his transfer to a state mental facility.
    2. A legislative intent in enacting the statute which provides that a defendant may, at his own expense, or if indigent, at the expense of the county, secure an independent psychiatric evaluation on the issue of his insanity at the time the alleged offense was committed was to allow an indigent defendant an opportunity to prepare an insanity defense at public expense by the appointment of an expert chosen by the defendant.
    Reversed and remanded.
    1. Criminal Law — Neurological Examinations — Mental Patients — Brain Damage.
    A defendant’s request for the appointment of a neurological expert should have been granted where his history showed that he had been a mental patient on several occasions and that previous neurological examinations had been performed and revealed abnormality and severe brain damage.
    References for Points in Headnotes
    [1-3] 21 Am Jur 2d, Criminal Law § 48.
    Right of indigent defendant in criminal case to aid of state by
    appointment of investigator or expert. 34 ALR3d 1256.

      2. Criminal Law — Indigent Defendants — Defenses — Insanity — Expert Witnesses — Legislative Intent — Statutes.
    A legislative intent in enacting the statute which provides that a defendant may, at his own expense, or if indigent, at the expense of the county, secure an independent psychiatric evaluation by a clinician of his choice on the issue of his insanity at the time the alleged offense was committed, was to allow an indigent defendant the opportunity to prepare an insanity defense at public expense by the appointment of an expert chosen by the defendant, who may testify as to the underlying medical basis for the defense (MCL 768.20a[3]; MSA 28.1043[1][3]).
    3. Criminal Law — Neurologists — Brain Damage — Insanity — Defenses — Discretion — Abuse of Discretion.
    Failure to grant a defendant’s request for the appointment of a neurologist by a trial judge who was clearly informed of the defendant’s past history of brain abnormalities and of prior testing revealing them amounted to an abuse of discretion.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      Gail Rodwan, Assistant State Appellate Defender, for defendant on appeal.
    Before: Bashara, P.J., and D. F. Walsh and T. M. Burns, JJ.
   Bashara, P.J.

Defendant was found guilty by a jury of malicious destruction of property, MCL 750.377b; MSA 28.609(2), and resisting and obstructing a police officer, MCL 750.479; MSA 28.747, but mentally ill, MCL 768.36; MSA 28.1059.

Several issues are raised on appeal, however, we need address only the question of whether the trial judge should have appointed a neurological expert as requested by the defendant. The answer is in the affirmative.

Relevant facts reveal that on the evening of March 27, 1978, defendant appeared at the emergency room of the Port Huron Hospital suffering from an apparent drug overdose. While nurses were discussing the problem with a doctor, the defendant ran from the hospital yelling that he did not want to undergo treatment.

Shortly thereafter, a girl who had accompanied defendant to the hospital rushed back into the emergency room screaming that the defendant was in the parking lot and was attempting to wreck a police car. Police and hospital officers found defendant striking the auto with a flashlight. An altercation occurred in an attempt to subdue the defendant and one of the officers was injured. The defendant was subsequently restrained. The charges against the defendant grew out of the foregoing facts.

The trial of this matter commenced on December 5, 1978. In the interim, defendant was incarcerated in the St. Clair County Jail. His behavior at the jail was bizarre and irrational. On three separate occasions, the sheriffs office requested that defendant be transferred to Clinton Valley Hospital, a state mental facility, because of his self-mutilating and irrational behavior. On all three occasions he escaped from the mental health facility and was returned to jail. During his incarceration, he did such things as swallow a razor blade given him for shaving, bang his head and fists against the jail walls and bars, cut himself and acted in a generally irrational and incoherent manner.

On October 5, 1978, after a routine competency report was filed, defense counsel moved to have a neurologist appointed to perform a neurological examination on defendant. Defendant’s history showed that he had been a mental patient on several occasions commencing with 1974. Neurological examinations had previously been performed revealing abnormality and severe brain damage.

At the hearing on the motion, the trial judge refused to appoint a neurological expert because he felt he was not required to have any organic analysis performed.

MCL 768.20a(3); MSA 28.1043(1X3) provides:

"(3) The defendant may, at his own expense, or if indigent, at the expense of the county, secure an independent psychiatric evaluation by a clinician of his choice on the issue of his insanity at the time the alleged offense was committed. The defendant shall notify the prosecuting attorney at least 5 days before the day scheduled for the independent evaluation that he intends to secure such an evaluation. The prosecuting attorney may similarly obtain independent psychiatric evaluation. A clinician secured by an indigent defendant shall be entitled to receive a reasonable fee as approved by the court.”

The issue is whether the neurological examination sought falls within the scope of an "independent psychiatric evaluation by a clinician of his choice on the issue of insanity at the time the alleged offense was committed”. A search of Michigan law reveals no precedent on which to rely for guidance. However, an analysis of the statute itself may provide the clues to determine legislative intent.

Stedmen’s Medical Dictionary defines "clinician” as a "physician engaged in clinical practice as distinguished from investigator or teacher working in preclinical fields”. The same authority states that "psychiatric” is the "recognition and treatment of diseases of emotions and the mind,” while a "neurologist” is "one versed in the science of neurology; a specialist in the treatment of nervous diseases”.

The obvious legislative purpose in enacting the statute in question is to allow an indigent defendant the opportunity to prepare an insanity defense at public expense by the appointment of an expert, chosen by the defendant, who may testify as to the underlying medical basis for the defense.

While no Michigan cases appear to assist us, a pronouncement by the Illinois Supreme Court is most helpful. In People v Watson, 36 Ill 2d 228, 232-233; 221 NE2d 645 (1966), the Supreme Court of Illinois concerned itself with the production of an expert in a check forgery case. The Court there stated:

"It has long been a major goal of our entire judicial system to see that all persons charged with a crime 'stand on an equality before the bar of justice in every American court.’ (Chambers v State of Florida, 309 US 227, 241, [60 S Ct 472, 479] 84 L Ed 716, 724 [1940].) Such cases as Gideon v Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792 [1963], and Griffin v Illinois, 351 US 12, 100 L Ed 891, 76 S Ct 585 [1956] have gone far to achieve this goal by assuring indigent defendants, even in noncapital cases, the right to counsel and to appellate review. The problem now facing the court concerns the production of witnesses on behalf of indigents. The Illinois constitution provides, in section 9 of article II, that in criminal prosecutions the accused is entitled to have process to compel the attendance of witnesses in his behalf. In almost identical language the sixth amendment to the United States constitution provides that the accused in criminal cases is entitled to have compulsory process for obtaining witnesses in his favor. Thus it is at once apparent that the right to summon witnesses is fundamental in our legal system. It is defendant’s contention that a right so fundamental should not be made to depend upon the financial circumstances of the defendant. We share this view.
"The court recognizes that there is a distinction between the right to call witnesses and the right to have these witnesses paid for by the government, but in certain instances involving indigents, the lack of funds with which to pay for the witness will often preclude him from calling that witness and occasionally prevent him from offering a defense. Thus, although the defendant is afforded the shadow of the right to call witnesses, he is deprived of the substance.
"The value of an expert witness’s testimony lies in his experience and, more particularly, in his preparation.” 36 111 2d 228, 232-233; 221 NE2d 645, 648 (1966).

It is the Court’s conclusion that the legislative intent in enacting the statue allows the appointment and assistance of an appropriate expert to examine the defendant and testify as to the underlying medical basis for an insanity defense. Given the facts of the case at bar, the defendant had the right to the appointment of a neurologist. The court’s failure to do so constitutes reversible error.

We do not ignore the prosecutor’s admonition that the decision of whether to grant or deny defendant’s request for the appointment of a neurologist was within the sound discretion of the trial judge. People v Williams, 386 Mich 565; 194 NW2d 337 (1972). However, we have carefully reviewed the transcript of the October 30, 1978, hearing on the motion for appointment of a neurologist. The trial judge was clearly informed of the defendant’s past history of brain abnormalities and of prior testing revealing them. The failure to appoint a neurologist under those circumstances amounted to the abuse of discretion contemplated in People v Williams, supra.

Reversed and remanded for proceedings consistent with this opinion.


author: D. C. Riley, J.

text:
    MASTERS v CITY OF HIGHLAND PARK
    Docket No. 43815.
    Submitted February 15, 1980, at Detroit.
    Decided April 22, 1980.
    Leave to appeal denied, 409 Mich 937.
    Plaintiff, Bruno M. Masters, on December 8, 1972, filed suit against the City of Highland Park, its Civil Service Board and Highland Park General Hospital alleging wrongful discharge from the hospital’s maintenance department. The case was finally heard by the Michigan Supreme Court (402 Mich 907 [1978]), which affirmed an order of the Court of Appeals that plaintiff be reinstated and remanded the case to the Wayne Circuit Court for a determination of the amount of back pay to be awarded. This order gave the defendants an opportunity to establish that plaintiff had not properly mitigated his damages. On August 25, 1978, plaintiff was deposed by defendant and, on December 13, 1978, served with a set of interrogatories, which were not answered. On December 28, 1978, plaintiff moved for entry of judgment. The city objected to the entry of a judgment based on plaintiff’s failure to respond to the interrogatories and its desire to depose a former employee. On February 2, 1979, the trial court, Thomas Roumell, J., rejected these arguments and entered a judgment for plaintiff. The city appeals. Held:

    1. Failure of a party to seek an order compelling a response to interrogatories constitutes a waiver of any objection to an entry of judgment prior to the submission of answers to the interrogatories and the Court of Appeals will not reverse such a judgment in the absence of manifest injustice.
    2. The granting or denial of discovery is within the trial judge’s discretion. One consideration must be whether the extension of discovery will facilitate rather than impede the litigation, and the timeliness of the request, the duration of the litigation and possible prejudice to the litigants should be considered. The court did not err in entering judgment.

      References for Points in Headnotes
    [1] 23 Am Jur 2d, Depositions and Discovery §§ 149, 155, 156.
    [2] 23 Am Jur 2d, Depositions and Discovery §§ 257, 289.
    [3, 5] 4 Am Jur 2d, Appeal and Error § 79.
    5 Am Jur 2d, Appeal and Error §§ 772, 774.
    23 Am Jur 2d, Depositions and Discovery § 149.
    [4] 23 Am Jur 2d, Depositions and Discovery §§ 149, 150.

      Affirmed.
    1. Trial — Discovery — Court Rules — Construction.
    Discovery rules are to be liberally construed to clarify the factual and legal questions to be litigated, to effect complete and honest disclosure of the underlying issues and to prevent surprise at trial; however, a trial judge must balance these considerations against the necessity for expeditious disposition of litigation in the exercise of his sound discretion in rulings, regarding discovery.
    2. Trial — Discovery — Interrogatories — Court Rules — Failure to Answer — Waiver — Appeal.
    Failure of a party to seek an order compelling a response to interrogatories constitutes a waiver of any objection to an entry of judgment prior to the submission of answers to the interrogatories and the Court of Appeals will not reverse such a judgment in the absence of manifest injustice (GCR 1963, 313.3).
    3. Trial — Discovery — Interrogatories — Relevancy of Interrogatories — Discretion.
    Determining the relevancy of interrogatories is a decision within a trial judge’s discretion which will not be reversed on appeal absent an abuse of discretion.

      4. Trial — Discovery — Discretion.
    The granting or denial of discovery is within the trial judge’s discretion; one consideration must be whether the extension of discovery will facilitate rather than impede the litigation, and the timeliness of the request, the duration of the litigation and possible prejudice to the litigants should be considered.
    5. Trial — Discovery — Discretion.
    A trial judge should be able to terminate discovery and proceed to trial or entry of judgment after a reasonable time, and his decision to do so will only be reversed where manifest injustice has resulted to the appealing party.

      Murdoch J. Hertzog, for plaintiff.

      Bell & Hudson, P.C., for defendant on appeal.

      Before: Bronson, P.J., and Beasley and D. C. Riley, JJ.
   D. C. Riley, J.

On December 8, 1972, the plaintiff, Bruno M. Masters, filed suit against the City of Highland Park, the Civil Service Board of the City of Highland Park and Highland Park General Hospital, alleging that his discharge, after 22 years of service with the Highland Park Hospital maintenance department, was wrongful. He had been discharged for alleged noncompliance with the city’s residence requirements. The discharge was first upheld by the Highland Park Civil Service Commission and then by the Wayne County Circuit Court in an order dated December 26, 1975. This Court reversed and ordered the plaintiff reinstated with accrued back wages. Masters v Highland Park, 79 Mich App 77; 261 NW2d 215 (1977), aff'd and remanded, 402 Mich 907 (1978). The Michigan Supreme Court’s order of affirmance remanded the matter to the trial court for a determination of the amount of back pay to be awarded to the plaintiff. This order gave the defendants an opportunity to establish that the plaintiff had not properly mitigated his damages.

On August 25, 1978, plaintiff was deposed by the defendants regarding his income and attempts to find employment following discharge. The defendants submitted a set of interrogatories to plaintiff on December 13, 1978, which were not answered. On December 28, 1978, the plaintiff moved for entry of judgment. The city objected to any entry of a judgment based on the plaintiff’s failure to respond to the interrogatories and its own desire to depose the former personnel director of Highland Park. On February 2, 1979, the . trial court rejected defendants’ arguments and rendered judgment for plaintiff in the amount of $242,281.91. The city now appeals, claiming that the trial court reversibly erred by not allowing them to adequately explore the mitigation of damages issue.

Discovery was designed to clarify the factual and legal questions to be litigated at trial. Through this mechanism, complete and honest disclosure of the underlying issues can occur, preventing surprise at trial. Klabunde v Stanley, 16 Mich App 490, 493; 168 NW2d 450 (1969), rev’d on other grounds, 384 Mich 276; 181 NW2d 918 (1970). To this end, the discovery rules are to be liberally construed. Daniels v Allen Industries, Inc, 391 Mich 398, 403; 216 NW2d 762 (1974). However, these disclosure considerations must be balanced against the necessity for expeditious disposition of litigation. Klabunde v Stanley, 384 Mich 276, 282; 181 NW2d 918 (1970). It is up to the trial judge to balance these ofttimes competing concerns so as to ensure both parties’ right to a fair trial.

Defendants objected to the entry of judgment prior to answers being submitted on the December interrogatories. Despite the ready mechanism available under GCR 1963, 313.1, defendants failed to move for an order compelling a response to the interrogatories. See Omlie Industries, Inc v Industro Motive Corp, 77 Mich App 48, 50-51; 257 NW2d 677 (1977). We believe that their failure constituted a waiver and we will not review defendants’ claim absent manifest injustice.

Determining the relevancy of interrogatories is a decision within a trial judge’s discretion which will not be reversed on appeal absent an abuse of discretion. Marchand v Henry Ford Hospital, 398 Mich 163, 169-170; 247 NW2d 280 (1976), Walker Metallurgical Corp v Ledoux & Co, 16 Mich App 588, 590; 168 NW2d 474 (1969). We agree with the trial judge that most of defendants’ interrogatories had either already been answered at plaintiffs deposition or were irrelevant to the mitigation issue. Since most of the questions were of this nature, the interrogatories were not submitted until late in the litigation, the defendant did not move to compel answers and the burden of mitigation was on defendants, no manifest injustice results if we do not review defendants’ claim.

Defendants further argue that the trial court erred in not allowing them time to depose an out-of-state witness, the former personnel director of Highland Park.

The granting or denial of discovery is within the trial judge’s discretion. See Daniels, supra, Wechsler v Mroczkowski, 351 Mich 483, 491; 88 NW2d 394 (1958). An underlying consideration must be whether the granting or extension of discovery will facilitate rather than impede the litigation. See Webster v Central Paving Co, 51 Mich App 62; 214 NW2d 707 (1974). Factors such as the timeliness of the request, the duration of the litigation and possible prejudice to the litigants should be considered. See Klabunde, supra, Webster, supra, Haynes v Monroe Plumbing & Heating Co, 48 Mich App 707; 211 NW2d 88 (1973). Unless it will create manifest injustice, after a reasonable length of time a judge should be able to terminate discovery and proceed with trial.

In the instant case, defendants had ten months between the Supreme Court’s remand order and the entry of judgment. Yet, it was only when plaintiff moved for judgment that the defendants indicated any dire need for the witness’s testimony. We believe that a reasonable time for discovery had elapsed so that it was proper for the trial judge to refuse to extend defendants’ investigation.

In summary, we hold that the failure to utilize the discovery sanctions listed iñ GCR 1963, 313, will waive the issue of noncompliance on appeal, absent manifest injustice. Parties should only be allowed a reasonable time prior to trial in which to pursue discovery methods such as depositions or interrogatories or discovery sanctions such as orders and default judgments. After that period, the trial judge should be able to terminate discovery and to proceed to trial or the entry of judgment. His decision to do so will not be reversed by this Court unless manifest injustice has resulted to the appealing party.

Affirmed.