author: D. C. Riley, P.J. M. J. Kelly, J.

text:
    LOCAL NO. 214, TEAMSTERS v CITY OF DETROIT
    Docket No. 78-2301.
    Submitted March 19, 1979, at Detroit.
    Decided July 10, 1979.
    Leave to appeal applied for.
    Teamsters, Local No. 214, as union representative of correctional officers employed at the Detroit House of Correction (DeHoCo), petitioned the Michigan Employment Relations Commission (MERC) for a formal determination as to whether the officers were eligible for arbitration under a statute providing for compulsory arbitration of labor disputes in municipal police and fire departments. MERC held that it possessed the requisite jurisdiction necessary to effect a settlement of a controversy, and in addition ruled that the prison guards were within the act’s coverage and therefore entitled to compulsory arbitration. The City of Detroit and DeHoCo appeal that determination alleging that MERC lacks the jurisdiction and authority to hear and decide the question of plaintiff’s eligibility for compulsory arbitration, that MERC erred in determining that DeHoCo is a state rather than a city facility and that the correctional guards were subject to the same or similar hazards faced by Detroit policemen. Held:

    1. MERC has jurisdiction and authority to hear and decide eligibility of public police and fire department employees for the compulsory arbitration of labor disputes.
    2. Correctional guards at DeHoCo are employed by the City of Detroit; therefore, they are city employees and come, in that respect, within the ambit of the statute providing for compulsory arbitration of labor disputes in municipal police and fire departments.
    3. The statute providing for compulsory arbitration of labor disputes in municipal police and fire departments applies to public employees engaged as policemen, or firemen or subject to the hazards thereof. The guards at DeHoCo are not part of the public police department and to be eligible for compulsory arbitration they must be subject to the risks and hazards faced by City of Detroit policemen. A MERC decision is conclusive if supported by competent, material and substantial evidence on the record considered as a whole. Where the Court of Appeals is unable to say that an agency’s findings are devoid of the necessary record support in a close case, due deference should be given to the agency’s administrative expertise and the Court should not invade the province of exclusive administrative fact-finding by displacing the agency’s choice between two reasonably differing views.

      References for Points in Headnotes

       48A Am Jur 2d, Labor and Labor Relations §§ 1764, 1773-1775, 2026.
    Validity and construction of statutes or ordinances providing for arbitration of labor disputes involving public employees. 68 ALR3d 885.

       48 Am Jur 2d, Labor and Labor Relations §§ 1368, 1420, 1421.

      Affirmed.
    M. J. Kelly, J., dissented. He would hold, from his review of the evidence presented, that plaintiffs failed to carry their burden of establishing that correctional guards at DeHoCo were, and are, subject to the same risks and hazards as members of the Detroit Police Department. The guards are not eligible for compulsory arbitration under the statute and the MERC decision should be reversed.
    Opinion of the Court
    1. Labor Relations — Michigan Employment Relations Commission — Jurisdiction — Public Employees — Policemen and Firemen — Arbitration of Disputes — Statutes.
    The Michigan Employment Relations Commission has jurisdiction and authority to hear and decide the question of the eligibility of public police and fire department employees for the compulsory arbitration of disputes (MCL 423.231 et seq.; MSA 17.455[31] et seq.).

    2. Labor Relations — Public Employees — Policemen and Firemen — Arbitration of Disputes — Statutes.
    The act providing for compulsory arbitration of labor disputes in municipal police and fire departments applies to any department of a city, county, village or township having employees engaged as policemen, or in fire fighting or subject to the hazards thereof (MCL 423.232; MSA 17.455[32]). '
    3. Prisons — Detroit House of Correction — Correctional Guards — Arbitration of Disputes — Statutes.
    Correctional guards at the Detroit House of Correction are employed and paid by the City of Detroit; therefore, they come, in that respect, within the ambit of the act providing for compulsory arbitration of labor disputes in municipal police and fire departments (MCL 423.232; MSA 17.455[32]).
    4. Appeal and Error — Administrative Law — Michigan Employment Relations Commission — Fact Finding — Expertise — Constitutional Law — Statutes.
    A decision of the Michigan Employment Relations Commission is conclusive if supported by competent, material and substantial evidence on the record considered as a whole; therefore, where the Court of Appeals is unable to reach the conclusion that the agency’s findings were devoid of the necessary record support in a decidedly close case, due deference should be given to the agency’s administrative expertise and the Court of Appeals should decline to invade the province of exclusive administrative fact-finding by displacing the agency’s choice between two reasonably differing views (Const 1963, art 6, § 28, MCL 423.23[e]; MSA 17.454[25][e]).
    Dissent by M. J. Kelly, J.
    5. Labor Relations — Public Employees — Policemen and Firemen — Arbitration of Disputes — Detroit House of Correction — Guards — Risks and Hazards — Statutes.

      Compulsory arbitration of labor disputes extends to public employees engaged as policemen, or in ñreñghting or subject to the hazards thereof; correctional guards at the Detroit House of Correction are not part of the city public police department and to be eligible for compulsory arbitration of their labor dispute they must be subject to the hazards of city policemen; therefore, where record evidence indicates that the guards are not subject to the same risks and hazards as members of the Detroit Police Department, compulsory arbitration should be denied (MCL 423.232; MSA 17.455[32]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jon M. DeHorn, Assistant Attorney General, for Michigan Employment Relations Commission.

      Kasoff, Young, Gottesman, Kovinski, Friedman & Walkon, P.C. (by Howard L. Shifman), for Teamsters Local No. 214.

      Roger E. Craig, Corporation Counsel, George G.

      Matish, Deputy Corporation Counsel, and Michael A. Hurvitz, Assistant Corporation Counsel, for defendants.
    Before: D. C. Riley, P.J., and M. J. Kelly and Beasley, JJ.
   D. C. Riley, P.J.

On October 6, 1977, plaintiff, the union representative of correctional officers employed at the Detroit House of Correction (hereinafter, DeHoCo), petitioned the Michigan Employment Relations Commission (hereinafter, the Commission) for a formal determination as to whether the officers were eligible for arbitration under the compulsory arbitration statute, MCL 423.231 et seq.; MSA 17.455(31) et seq.

In an order dated May 17, 1978, the Commission held that it possessed the requisite jurisdiction necessary to effect a settlement of the controversy, and in addition ruled that the prison guards were within the act’s coverage and therefore entitled to mandatory arbitration. The City of Detroit and DeHoCo appeal that determination by leave, raising three issues, only one of which merits distended consideration.

Defendants’ initial argument, that the Commission lacks the jurisdiction and authority to hear and decide the question of plaintiff’s eligibility for compulsory arbitration, has been recently rebuffed by this Court in In The Matter of Metropolitan Council 23, AFSCME, AFL-CIO, 89 Mich App 564; 280 NW2d 600 (1979), wherein it was held that the legislative intent to afford public employees within the scope of the act an expeditious and effective procedure for the resolution of disputes would be ill-served by imposing the protracted delays germane to initial court review and resolution of the act’s comprehensiveness. Defendants’ claim, therefore, is without merit.

Defendants also maintain that the Commission erred in determining that DeHoCo is a state rather than a city facility.

MCL 423.232; MSA 17.455(32) defines "public police and fire department”, to which the compulsory arbitration act applies, as follows:

"any department of a city, county, village or township having employees engaged as policemen, or in fire fighting or subject to the hazards thereof.”

Assuming, arguendo, the validity of defendants’ contention, Green v Dep’t of Corrections, 30 Mich App 648, 652; 186 NW2d 792 (1971), aff'd 386 Mich 459; 192 NW2d 491 (1971), we are no closer to a resolution of the ultimate dispute on appeal, which is, whether the Commission erroneously ruled that the correctional officers were within the purview of the act. As is readily apparent from the provision above, the focal point of conflict is not whether DeHoCo is a city or state institution, but rather the identity of the prison guards’ employer. Since the guards are employed and paid by the City of Detroit, they clearly come, in this respect, within the ambit of the statute.

Hence, we turn to the dispositive issue, whether the Commission’s holding that the officers in question were subject to the same or similar hazards as faced by Detroit policemen was in accordance with the law and supported by competent, material and substantial evidence. Const 1963, art 6, § 28, MCL 423.23(e); MSA 17.454(25)(e), Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116, 121-124; 223 NW2d 283 (1974).

Executive Deputy Chief James Bannon testified regarding the hazards generally encountered by Detroit police officers. They included walking beats, riding motorcycles, responding to radio reports of crimes, riding in patrol cars, and investigating narcotics cases, sex-related offenses, robberies and homicides. The police are charged with the general enforcement of all the criminal laws of the state, be they misdemeanor, felony, or motor vehicle connected. Police officers have an obligation to carry their identification cards, badges and guns even when off duty, and, accordingly, to respond to life threatening situations at any time. Police must assist firemen in their work. They also must respond to and intervene in family squabbles, which is one of the most dangerous of police activities since, on the national average, 50% of the police officers killed or injured are killed or injured in responding to domestic calls. Statistics were introduced evidencing the high rate of injur ries resulting throughout the entire spectrum of police activities. Bannon also indicated that, due to the stress of police work in urban communities, police officers have the highest occupational rates of suicide and divorce, and one of the highest rates of alcoholism in the country.

The functions of the correctional guards, and their attendant risks, were explained by various witnesses, including the director of DeHoCo. Their testimony may be summarized as follows: the officers are responsible for maintaining order throughout the detention facility, and also patrol its perimeters on foot and in vehicles. They are accountable for the custody of prisoners to and from police agencies, courts and hospitals. In the event of a prisoner escape, they pursue and initially attempt an apprehension, always with the aid of weapons. They search prisoners and visitors for contraband such as weapons or narcotics; however, their power extends only to detention of the wrongdoer—the local police are alerted to effectuate the arrest. Although the guards are on call 24 hours a day, they are not authorized to carry a weapon or make an off-duty arrest. Most do not carry guns as part of their daily routine, but a full range of weapons (including mace, teargas, and other riot equipment) are kept on the premises for issue when necessary. Officers have, on occasion, been assaulted through prisoner attack, though not anywhere nearly as frequently as Detroit policemen. However, the potential for these attacks coupled with instances of inter-inmate conflicts exposes them to risks from which they suffer physical injuries.

Upon a careful review of the evidence and testimony proffered, we are unable to reach the conclusion that the Commission’s finding was devoid of the necessary record support. We view the instant case as a decidedly close one, and accordingly afford due deference to administrative expertise and decline to "invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views”. Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, supra, at 124.

Affirmed. Costs to plaintiff.

Beasley, J., concurred.

M. J. Kelly, J.

(dissenting). I agree with the majority on the first two issues: namely, the jurisdiction of the commission and should the correctional guards be employed by the City of Detroit. Since they are obviously not part of the city public police department, the dispositive issue here is whether they were, and are, subject to the same or similar hazards as those faced by Detroit policemen.

The interpretation and application of the statutory language embodied in MCL 423.232; MSA 17.455(32), by the MERC is the focal point of this argument. This language is as follows:

"Public police and fire departments means any department of a city, county, village, or township having employees engaged as policemen, or in firefighting or subject to the hazards thereof.” (Emphasis added.)

I believe the MERC board and its hearing officer erred in determining that the correctional officers were subject to the hazards police officers encounter and I would find, therefore, that the plaintiffs were ineligible for compulsory arbitration under the statute. In Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116, 121; 223 NW2d 283 (1974), it was stated:

"The standard of appellate review of MERC Board findings of fact is set forth in the labor mediation act as follows:
" '* * * The findings of the board with respect to questions of fact if supported by competent, material and substantial evidence on the record considered as a whole shall be conclusive. * * *’ MCL 423.23(e); MSA 17.454(25)(e).
"This standard comports with Const 1963, art 6, § 28 which sets forth the minimum constitutional scope of judicial review of administrative decisions.”

Later in this case, the Supreme Court elaborated on this standard of review, stating:

"What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record—that is, both sides of the record—not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive fact-finding by displacing an agency’s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review.”

There is no argument, and there can be no argument, that plaintiffs were members of the Detroit Police Department. Plaintiffs’ counsel stipulated that they were not. Let us then examine the comparative hazards. The hazards of police department work were set out in the testimony of the Executive Deputy Chief of the Detroit Police Department, James Bannon. His testimony suggests that city police are exposed to hazards of such variety, scope, and intensity as to lead me to conclude that the MERC board’s findings were not supported by competent, material and substantial evidence on the record considered as a whole.

The city police officers have a wide range of duties and resultant hazards, including walking beats, riding motorcycles, responding to radio reports of crimes, riding patrol cars, investigating narcotics cases, sex-related offenses, robberies and homicides. The police are charged with the general enforcement of all the criminal laws of the state, be they misdemeanor, felony, or motor-vehicle connected. Police officers have an obligation to carry their identification cards, badges, and guns even when off duty, and to respond to life threatening situations at any time. Police must assist firemen in their work. They also must respond to and intervene in family squabbles, which is one of the most dangerous of police activities since, on the national average, 50% of the police officers killed or injured are killed or injured in responding to domestic calls. Statistics were introduced showing the number of injuries resulting to police through the entire spectrum of police activities. They showed that out of approximately 4,000 field officers, 2,728 can be expected to be injured in some way in the course of a year. Deputy Chief Bannon also indicated that, due to the stress of police work in urban communities, police officers have the highest occupational rates of suicide and divorce, and one of the highest rates of alcoholism in the country.

The functions of the plaintiffs’ correctional guards at the Detroit House of Correction (De-HoCo), and the hazards attendant to those functions, were outlined by its director, William Rucks. The following facts were revealed: The day shift at DeHoCo consists of about 22 correctional guards, only two of whom carry a weapon on duty. None of the correctional guards are authorized to carry a weapon or make an arrest while off-duty. If the guards discover that contraband is being smuggled into DeHoCo, they can only detain the wrongdoer. They must alert a local police department to effectuate the arrest. As to occupational hazards, witness Rucks related that, in his 23 years at De-HoCo, no guard had been stabbed or shot and he could only recall four to six guards being injured by prisoner attacks. Further, he recalled only about three incidents where weapons had to be issued to the correctional guards. Although there were other witnesses presented whose testimony also addressed this issue, their descriptions of the occupational hazards of the plaintiffs were consistent with that of Mr. Rucks.

I do not think that the plaintiffs carried their burden of establishing that they were, and are, subject to the risks and hazards to which members of the police department are subject. Therefore, the MERC board determination should be reversed and the plaintiffs held not entitled to compulsory arbitration under the statute.

       MCL 423.231; MSA 17.455(31).


source: Caselaw Access Project

author: Bashara, J.

license: Public Domain

text:
    SMITH v ROBBINS
    Docket No. 78-2529.
    Submitted April 5, 1979, at Grand Rapids.
    Decided July 10, 1979.
    Leave to appeal applied for.
    Plaintiff, Sandra K. Smith, brought an action seeking an order of filiation against defendant, James Robbins, claiming that defendant was the father of her child, Kendall Wayne Smith. Defendant filed a motion for summary judgment, alleging that plaintiff failed to state a claim for which relief could be granted because the child was conceived and born while plaintiff was married to Clinton Smith, Jr. The same day the parties stipulated the following: plaintiff and Smith were married on June 7, 1969; from January 10, 1970, to January 27, 1971, Smith was in the Army and during that period plaintiff neither saw nor cohabited with him; the child was born on January 27, 1971; in June, 1971, Smith filed for divorce alleging that he was not the natural father of the child and later amended his complaint to allege no children were born of the marriage; and, the divorce judgment finally granted made no reference to children. The Antrim Circuit Court, Charles M. Forster, J., denied defendant’s motion and, after a bench trial, entered a judgment of filiation and an order for support. Defendant appeals. Held:

    1. A child is born "out of wedlock” when its mother and father are not married to each other, regardless of the parents’ relationships to third persons. Under the Paternity Act the mother and father of a child born out of wedlock have a duty to support the child.
    2. The standard of proof in paternity proceedings is proof by a preponderance of the evidence.
    Affirmed.
    1. Bastards — Paternity Act — Words and Phrases — Husband and Wife — Statutes.
    The definition in the Paternity Act of a child born out of wedlock is "a child begotten and born to any woman who was unmarried from the conception to the date of birth of the child”; a literal reading of this definition would place a child born to a married woman outside the ambit of the act even where the father of the child is not the husband; such a result is unacceptable; the Paternity Act is operative where the mother is not lawfully married to the father of the child (MCL 722.711 et seq.; MSA 25.491 et seq.).

      References for Points in Headnotes

       10 Am Jur 2d, Bastards §§ 1-9, 17.

       10 Am Jur 2d, Bastards §§ 10-18.
    Who may dispute presumption of legitimacy of child conceived or born during wedlock. 90 ALR3d 1032.

      2. Bastards — Paternity Proceedings — Standard op Proof — Preponderance op Evidence.
    The standard of proof in a paternity action is proof by a preponderance of the evidence.

      James Young, Prosecuting Attorney, and David J. Churchill, Assistant Prosecuting Attorney, for plaintiff.

      Tremp & Derman, P.C., for defendant.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and Bashara, JJ.
   Bashara, J.

Defendant appeals from a denial of a motion for rehearing and for a new trial. A judgment of filiation and an order for support were entered after the trial court found the defendant was the father of Kendall Wayne Smith, a child born to plaintiff.

Plaintiff filed a complaint seeking an order of filiation, alleging the defendant fathered her child. Plaintiff claims the child was conceived about April 5, 1970, and born January 27, 1971.

Defendant then filed a motion for summary judgment, alléging that plaintiff had not stated a claim upon which relief could be granted, GCR 1963, 117.2(1), because the child was conceived and born while plaintiff was married to Clinton Smith, Jr.

On the same day, the parties filed a stipulation of facts which stated that the plaintiff and Smith were married on June 7, 1969; that from January 10, 1970, to January 27, 1971, Smith was in the Army and plaintiff neither saw nor cohabited with him during that period; that the child was born January 27, 1971; that in June, 1971, Smith filed a complaint for divorce, which alleged he was not the natural father of the child. An amended complaint for divorce was filed June 22, 1972, alleging that there were no children born of the marriage, and on November 13, 1972, divorce was granted, the judgment making no reference to children.

The trial court, in denying the motion for summary judgment, ruled that the preamble, §§ l(a)-(c) and § 16 of the Michigan Paternity Act, MCL 722.711(a)-(c); MSA 25.491(a)-(c), MCL 722.726; MSA 25.506, were unconstitutional on equal protection grounds.

The action proceeded to trial where testimony was taken from plaintiff, defendant and Smith’s family, with whom plaintiff resided while he was in the service.

The court found that defendant was the biological father, and made the following findings of fact: that defendant and plaintiff had sexual intercourse in March and April of 1970; that plaintiff did not have sexual intercourse with any other individual during that time period; that defendant and plaintiff took no precautions to avoid pregnancy; and that plaintiffs last menstrual period before the child’s birth was in March of 1970.

On appeal, defendant raises numerous issues, only three of which merit discussion.

I

Constitutionality of the Michigan Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq.

The trial court found that the Michigan Paternity Act denies equal protection to a child conceived and born during his mother’s marriage to other than the biological father.

A child born during marriage is accorded a strong but not irrebuttable presumption of legitimacy. People v Case, 171 Mich 282, 284; 137 NW 55 (1912). The possibility of the presumption being overcome has been greatly enhanced since "Lord Mansfield’s Rule” barring testimony of nonaccess during marriage has been found to be invalid. Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977).

The adverse consequences once attendant upon the status of illegitimacy have been greatly diminished by statutory enactments.

Under the Michigan Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., an illegitimate child Can require his biological father to provide support, Section 2(a) of the act provides that the "parents of a child so born out of wedlock are liable for the necessary support and education of the child”. "Out of wedlock” is defined in section 1(a) of the act as,

"A child born out of wedlock is a child begotten and born to any woman who was unmarried from the conception to the date of birth of the child.”

Defendant argues that since Kendall Wayne Smith was born while his mother was married, he is prohibited by the terms of the statute to turn to his biological father for support.

An individual is entitled to equal protection under the law. US Const, Am XIV; Const 1963, art 1, § 2. A legislative classification may not be arbitrary. There must be a rational relation between the classification and the purpose of the act in which it is found. United States Dep’t of Agriculture v Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782 (1973), Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644 (1967).

Numerous recent United States Supreme Court decisions have found disparate statutory treatment between illegitimate and legitimate children to be constitutionally invalid.

If our paternity statute is interpreted as creating a distinction between support provided for an illegitimate child of an unwed mother and the illegitimate child of a married mother, a clearly irrational classification exists and the statute will be rendered unconstitutional. This was the finding of the trial court.

However, we seek to construe statutes so as to sustain the constitutionality of the statutory scheme. Schwartz v Secretary of State, 393 Mich 42, 50; 222 NW2d 517 (1974). The primary rule of statutory construction is to determine and effectuate the Legislature’s intent. Toward that end, statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished. King v Director of The Midland County Dep’t of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977).

The purpose of the Paternity Act is to provide for the support of an illegitimate child. The announced public policy of this state is to treat children born out of wedlock as no less deserving of support than those born in wedlock. Boyles v Brown, 69 Mich App 480; 245 NW2d 100 (1976).

Other jurisdictions, when faced with defining "out of wedlock”, have determined that no distinction exists between the true illegitimate and the social illegitimate.

In State v Coliton, 73 ND 582, 586; 17 NW2d 546 (1945), the Supreme Court of North Dakota embarked upon a detailed analysis of the common-law concepts of illegitimacy and construction of the nature of wedlock in light of common-law notions. The court concluded that, since a married woman may have an illegitimate child:

"The term 'wedlock’ refers to the status of the man and his wife, not the status of the woman and her paramour. As to the latter, there is no wedlock and the child born to them is born out of wedlock. Because it is thus born out of wedlock and is therefore illegitimate, the natural father can be required to support it.”

The Supreme Court of North Carolina in Wright v Gann, 27 NC App 45, 47; 217 SE2d 761 (1975), held that:

"The father of an illegitimate child has a legal duty to support his child. * * * Where a married woman has an illegitimate child, the father has the duty to support his child and not the woman’s husband. * * *
"North Carolina does not impose upon a husband the burden of supporting another man’s offspring. The legislature, by enacting G.S. 49-14, intended to establish a means of support for illegitimate children. Statutory construction should seek to accomplish that purpose and not frustrate legislative intent. We interpret the phrase 'out of wedlock’ in the statute as referring to the status of the child and not to the status of the mother.”

As emphasized in Martin v Lane, 57 Misc 2d 4, 6; 291 NYS2d 135 (1968):

"The layman’s understanding of the term 'child born out of wedlock’ means unquestionably 'a child whose father is not the mother’s husband’ * * *. To hold otherwise * * * would infer that the Legislature was not cognizant of the common understanding of men.”

See also Leonard v Leonard, 360 So 2d 710 (Ala, 1978), In the Matter of the Estate of Robert A. Marriott, Deceased, 515 P2d 571, 573 (Okla, 1973), Pursley v Hisch, 119 Ind App 232; 85 NE2d 270 (1949).

The main objective sought to be accomplished by use of these various interpretations is to uphold legislation that mandates a child be supported by the biological father. B V O, 50 NJ 93; 232 A2d 401 (1967), Ingalls Shipbuilding Corp v Neuman, 322 F Supp 1229, 1241 (SD Miss, 1970), King v King 544 SW2d 795 (Tex Civ App, 1976).

Although the Michigan act adds an additional element, that of "unmarried”, to the definition of an illegitimate child, "unmarried” and "out of wedlock” are not so substantially different that a construction of unmarried to include not lawfully married to the father of the child unduly strains the statutory language.

Judge V. J. Brennan, in a dissenting opinion in the recent case of Pruitt v Pruitt, 90 Mich App 230, 236; 282 NW2d 785 (1979), recognized the possible constitutional violation in the statute, although the majority did not reach the issue. He stated that "[a] literal reading * * * places the child in the case at bar (since the mother was married at the time of birth) outside the ambit of that act. Such a result is unacceptable. I would hold the Paternity Act operative where the mother of the child is not lawfully married to the father of the child”.

We join with Judge Brennan in his interpretation of the Paternity Act.

II

Standard of Proof

The next issue raised is whether there was sufficient evidence for the trial court’s determination that defendant was the father of the child.

Paternity proceedings are quasi-criminal in nature. Artibee v Cheboygan Circuit Judge, 397 Mich 54, 57; 243 NW2d 248 (1976). The defendant is afforded the right to a jury trial, to appointed counsel, and protection against double jeopardy. Pruitt v Pruitt, supra.

However, the full panoply of criminal procedural protections have not been extended to paternity defendants. The standard of proof in a paternity proceeding is not, as defendant claims, proof beyond a reasonable doubt, but proof by a preponderance of the evidence. Huggins v Rahfeldt, 83 Mich App 740; 269 NW2d 286 (1978).

A review of the evidence convinces us that the findings of the trial judge were not clearly erroneous.

Ill

Representation of the Child

Defendant also claims that the trial court’s finding of illegitimacy is voidable since the child was not represented by counsel at the divorce proceeding or in the paternity action, and cannot be bound by plaintiffs and defendant’s stipulation of facts.

Although paternity of a third party cannot be determined as part of a divorce proceeding, Pruitt v Pruitt, supra, a paternity question involving the parties in a divorce action can be resolved by the court. Gallison v Gallison, 5 Mich App 460; 146 NW2d 812 (1966), Maxwell v Maxwell, 15 Mich App 607, 616; 167 NW2d 114 (1969).

Defendant cites no authority for his proposition. It must be emphasized that a child is protected by the still strong and viable presumption of legitimacy that can only be rebutted by clear and convincing evidence. Serafin, supra, Shepherd v Shepherd, 81 Mich App 465, 469; 265 NW2d 374 (1978).

In reaching its determination, the trial court considered collectively the divorce judgment, the stipulation, and the testimony of witnesses. A review of the evidence convinces us that the trial court properly found the presumption of legitimacy rebutted by clear and convincing evidence.

Affirmed.

       MCL 702.81; MSA 27.3178(151) provides that an illegitimate may inherit from his or her mother. MCL 702.83; MSA 27.3178(153) allows an illegitimate to be legitimatized by the parents even absent their marriage, and if legitimatized, the child has the identical status, rights and duties of a child born in lawful wedlock.

       Defendant supports his claim by citing the case of Winsett v Donaldson, 69 Mich App 36; 244 NW2d 355 (1976). In that case the defendant was seeking a formal determination of his paternity prior to taking further action to obtain custody of the child. The court found that since the mother of the child had been married to someone other than defendant at the time of the alleged conception, defendant could not proceed under the Paternity Act. It must be noted that this action was prior to Serafin, supra, and defendant could have proceeded under the child custody act of 1970.

       In Gomez v Perez, 409 US 535; 93 S Ct 872; 35 L Ed 2d 56 (1973), a law granting legitimate children support rights from their natural fathers while denying the same to illegitimate children was declared unconstitutional.

        Trimble v Gordon, 430 US 762; 97 S Ct 1459; 52 L Ed 2d 31 (1977), struck down a statute allowing an illegitimate child to inherit only through his mother.

        Glona v American Guarantee & Liability Ins Co, 391 US 73; 88 S Ct 1515; 20 L Ed 2d 441 (1968), invalidated Louisiana’s wrongful death statute providing that parents could only recover from the death of their legitimate children and only legitimate children could sue for the death of their parents. See also Levy v Louisiana, 391 US 68; 88 S Ct 1509; 20 L Ed 2d 436 (1968).
      In Weber v Aetna Casualty & Surety Co, 406 US 164; 92 S Ct 1400; 31 L Ed 2d 768 (1972), a workmen’s compensation law that did not allow illegitimate children to recover benefits from the death of their wage earning parent was found unconstitutional.

         It should be noted that Webster’s Third New International Dictionary defines illegitimate as being "born of parents not married to each other”.


author: D. F. Walsh, J.

text:
    SOBEL v TRONY ASSOCIATES
    Docket No. 78-3358.
    Submitted April 4, 1979, at Lansing.
    Decided July 10, 1979.
    Curt Sobel, Paul Hees, Roger Weisberg and David Schumer, on behalf of themselves and others similarly situated, brought a spurious class action against Trony Associates seeking a judgment declaring that the rent collection practices of the defendant violated certain provisions of the landlord-tenant relationship act. The plaintiffs also sought an injunction against continuation of the challenged practices and money damages for past violations of the act.
    The Washtenaw Circuit Court, Patrick J. Conlin, J., certified the class represented by the named plaintiffs as those tenants of the defendant who had entered into lease agreements with the defendant on or after April 1,1973. The circuit court found that the defendant had violated the act and awarded the named plaintiffs 5% per annum on $700 for 10 months and 5% per annum on $350 for one month. The named plaintiffs were ordered to notify the other members of the class. The court also ruled that there would be no award of costs as the claimants were represented by a legal aid society. The plaintiffs appeal, challenging the trial court’s interpretation of the statutes in question and the court’s computation of damages thereon, the denial of taxation of costs against defendant and the order directing the plaintiffs to bear the cost of notifying the absent class members. Held:

    1. The trial court properly held that except for the first month’s rent the defendant could not require any tenant to pay any portion of rent prior to the first day of the rental period to which the rent was to be applied, unless the prepayment was a security deposit which satisfied the act.
    2. The lower court was correct in finding that the defendant had required advance payments in excess of those allowed by the act.
    3. The act clearly provides that a security deposit may equal 1-1/2 month’s rent. The lower court was in error in ruling that a security deposit could not exceed 1 month’s rent.

      References for Points in Headnotes

       49 Am Jur 2d, Landlord and Tenant §§ 651-653.
    Right of lessor to retain advance rental payments made under lease terms upon lessee’s default in rent. 27 ALR2d 656.

       20 Am Jur 2d, Costs § 87.

       20 Am Jur 2d, Costs §§ 85,86.

      4. The defendant could require, under the terms of the leases, payment of 1-1/2 month’s rent as a security deposit and payment of the first month’s rent prior to the beginning of the term of the lease and, thereafter, on the first day of any rental period, payment of the rent for that rental period. Any amounts required to be paid, and actually paid, to the defendant under the terms of the lease which exceeded the above amounts were held by the defendant in violation of the act.
    5. The trial court’s ruling that the plaintiffs damages equaled the value of the use of their money for any period during which the defendant illegally held that money as an excessive security deposit was not in error; nor was the trial court’s ruling that the value of that use was 5% per annum.
    6. The trial court’s denial of taxable costs was unreasonable.
    7. The trial court was correct in ruling that the named plaintiffs should notify the members of the plaintiff class of the judgment against the defendant and that, after notification the members were to present their claims in district court. However, it was improper for the trial court to require the plaintiffs to bear the cost of notification. The normal practice would be to require the defendant to pay into court an amount sufficient to satisfy all possible claims and from this fund deduct the costs of notification and distribution to absent class members, reasonable attorney fees and other nontaxable costs, with the claims of the absent class members who file to be paid out of the remainder. However, because of the likelihood, in this case, that many of the possible claims in this class action will never be filed, it would be unreasonable to order the defendant to pay into court a fund which would be sufficient to satisfy all possible claims. In the alternative the defendant is ordered to pay the actual costs of notification together with such reasonable attorney fees for plaintiffs’ counsel as may be determined by the circuit court.
    Affirmed as modified and remanded for further proceedings.
    1. Landlord and Tenant—Rental Agreement—Security Deposits —Advance Rental Payments—Landlord-Tenant Relationship Act.
    A landlord may legally hold, during the term of a rental agreement, an amount equal to 11/2 times the monthly rent as a security deposit; in addition, the landlord may require payment of the first month’s rent prior to the beginning of the term of the lease and require, on the first day of each rental period thereafter, payment of the rent for that rental period; any amounts which the landlord requires the tenant to pay and which are actually paid in excess of the foregoing amounts are in violation of the landlord-tenant relationship act (MCL 554.601 etseq.; MSA 26.1138[1] etseq.).

      2. Landlord and Tenant—Security Deposits—Excess Security Deposits —Damages.
    A trial court’s finding that a plaintiffs damages in an action for damages against the plaintiffs landlord for requiring payment of a security deposit in excess of that allowed by statute equaled the value of the use of plaintiffs money held as an excessive security deposit was proper.
    3. Costs—Circuit Court—Prevailing Party—Legal Aid Society— Court Rules.
    The general rule is that costs are awarded in circuit court to the prevailing party; no statute or court rule prohibits an award of costs to a party represented by a legal aid society (GCR1963,526.1).
    4. Action—Class Actions—Spurious Class Actions—Notice to Absent Members—Cost of Notice.
    A common practice in spurious class actions where the plaintiff class prevails is to order a defendant to compute from its own records the total amount refundable to all possible participants in the plaintiff class and to pay that amount into court for the establishment of a fund from which such claims as may subsequently be proven can be paid; from this fund are first deducted the costs of notification of and distribution to absent class members, reasonable attorney fees and other nontaxable costs; the claims of absent class members who file and prove their claims are paid out of the remainder; however, in a situation where the likelihood is that many of the possible claims in a class action will never be filed, it would be unreasonable to order the defendant to pay into court an amount which would be sufficient to satisfy all possible claims; an alternative is to order the defendant to pay the actual costs of notification of the absent members of the class together with such reasonable attorney fees for plaintiffs’ counsel as may be determined by the circuit court.
    Washtenaw County Legal Aid Society (by Roger Chard), for plaintiffs.
    Before: R. M. Maher, P.J., and M. J. Kelly and D. F. Walsh, JJ.
   D. F. Walsh, J.

Plaintiffs initiated this class action on May 10, 1974, seeking a declaration from the Washtenaw County Circuit Court that the rent collection practices of defendant violated the Michigan landlord-tenant relationship act, MCL 554.601 et seq., MSA 26.1138(1) etseq. Plaintiffs also sought an injunction against continuation of the challenged practices and money damages for past violations of the act.

The circuit court certified the class represented by plaintiffs as those tenants of defendant who had entered into leases with defendant on or after April 1, 1973. The court found that defendant had violated the act and awarded the named plaintiffs 5% per annum on $700 for 10 months and 5% per annum on $350 for one month. The named plaintiffs were ordered to notify the other members of the class. With respect to costs, the court ruled: "There will be no costs allowed as all claimants are represented by Legal Aid.”

Plaintiffs appeal, challenging the trial court’s interpretation of the landlord-tenant relationship act and the court’s computation of damages based thereon, the denial of taxation of costs against defendant, and the order directing plaintiffs to bear the cost of notifying the absent class members.

The admitted practice of defendant was to require, prior to occupancy by the tenants, payment of a security deposit equal to one month’s rent. Also required, prior to occupancy, was payment of rent for the first two months of the rental term. Thereafter, one month’s rent was required to be paid on the fifteenth day of each month, beginning with the initial month of occupancy. Each of these payments represented the rental payment for the month beginning approximately 45 days after the payment.

The trial court properly held, and ordered in granting partial summary judgment for plaintiffs on February 18,1976, that, except for the first month’s rent, defendant landlord cannot require any tenant to pay any portion of rent prior to the first day of the rental period to which the rent is to be applied, unless the prepayment is a security deposit which satisfies the landlord-tenant relationship act. MCL 554.601(e); MSA 26.1138(l)(e), MCL 554.602; MSA 26.1138(2).

The lower court also properly found that defendant had required advance payments in excess of those allowed by the landlord-tenant relationship act. MCL 554.601 etseq.

The court’s computation of the amount of excess payment required by defendant, however, was incorrect. The court erroneously ruled that "a landlord cannot charge more than one months [sic] rent as a security deposit”. The statute clearly provides that a security deposit may equal 1-1/2 month’s rent. MCL 554.602. The statute also clearly includes within the definition of security deposit any prepayment of rent (other than prepayment of rent for the first full rental period).

Hence, defendant could legally hold, during the term of the rental agreement, an amount equal to 1-1/2 times the monthly rent. In addition, defendant could properly require, prior to the beginning of the term of the lease, payment of the first month’s rent. Thereafter, on the first day of each rental period, defendant could require payment of the rent for that rental period.

Any amounts required to be paid, and actually paid, to defendant under the terms of the lease which exceeded the amounts described in the foregoing paragraph were held by defendant in violation of the landlord-tenant relationship act.

The trial court found that plaintiffs’ damages equaled the value of the use of their money for any period during which defendant illegally held that money as an excessive security deposit. We find no error in that finding. Nor do we find error in the court’s determination that the value of that use was 5% per annum.

To justify recovery, therefore, each of defendant’s tenants must prove the terms of his, her or their lease agreement with defendant and the date and amount of each payment made to the defendant under the lease. From these facts it will be possible to determine the amount each tenant paid to the defendant in excess of the amount permitted under the act and the number of days for which each excessive amount was held by the defendant in violation of the act. Damages will equal the amount of any excessive payment times .000137 times the number of days the excessive payment was held by the defendant. Computation of total damages will, of course, require a number of separate calculations.

The trial court refused to award costs to plaintiffs, the prevailing parties, solely because they were represented by a legal aid society. The general rule is that costs are awarded in circuit court to the prevailing party. GCR 1963, 526.1, Barnett v International Tennis Corp, 80 Mich App 396, 414; 263 NW2d 908 (1978) . We find the trial court’s denial of taxable costs in this case unreasonable. No statute or court rule prohibits award of costs to parties represented by a legal aid society. Nor do we find any rational basis for such denial.

Finally, plaintiffs challenge the lower court’s order that they bear the burden and cost of notifying the absent class members. The circuit court ordered that members of the plaintiff class, after being notified of the judgment entered against defendant, are to present their claims in district court. We find no error in this aspect of the court’s order. Notification shall be sufficient if made by first class mail to the most recent address which can be obtained for each missing class member. In district court, defendant shall be allowed to present any counterclaims against those who file claims for refund of excessive security deposits.

We disagree, however, that plaintiffs should be required to bear the cost of notification. A common practice in class actions of this type is to order the defendant to compute from its own records the total amount refundable to all possible participants in the plaintiff class and to pay that amount into court for the establishment of a fund from which such claims as may subsequently be proven can be paid. From this fund are first deducted the costs of notification of and distribution to absent class members, reasonable attorney fees, and other nontaxable costs. The claims of absent class members who file in the appropriate forum are paid out of the remainder. See Bond v Ann Arbor School Dist, 383 Mich 693, 705-706; 178 NW2d 484(1970).

In the instant case, however, there has been a delay of more than six years since the effective date of the landlord-tenant relationship act. It can be fairly assumed that many of the 173 leases allegedly affected by this class action involved tenants who were part of a generally transient student population and who have undoubtedly long since left the Ann Arbor area. For many tenants, therefore, current addresses will most probably be unavailable.

Because of the likelihood that many of the possible claims in this class action will never be filed, we are persuaded that it would be unreasonable to order defendant to pay into court a fund which would be sufficient to satisfy all possible claims. In the alternative we order the defendant to pay the actual costs of notification of the absent members of the class together with such reasonable attorney fees for plaintiffs’ counsel as may be determined by the circuit court.

Affirmed as modified. Remanded for further proceedings consistent with this opinion.

Costs to appellants.

       As noted in the trial court’s opinion, defendant has changed its rental collection practices to comply with the landlord-tenant relationship act. The only issue before the trial court, therefore, was calculation of the amount of damages, if any, due plaintiffs for defendant’s past practices.

       "(e) 'Security deposit’ means a deposit, in any amount, paid by the tenant to the landlord or his agent to be held for the term of the rental agreement, or any part thereof, and includes any required prepayment of rent other than the first full rental period of the lease agreement; any sum required to be paid as rent in any rental period in excess of the average rent for the term; and any other amount of money or property returnable to the tenant on condition of return of the rental unit by the tenant in condition as required by the rental agreement. Security deposit does not include an amount paid for an option to purchase, pursuant to a lease with option to purchase, unless it is shown the intent was to evade this act.” MCL 554.601(e).
      "A landlord may require a security deposit for each rental unit. A security deposit shall be required and maintained in accordance with the terms of this act and shall not exceed 1-1/2 months’ rent.” MCL 554.602.

       Each tenant must establish for the period preceding the initial date of occupancy, the amount paid to the defendant in excess of 2-1/2 times the monthly rental and, for the months following the initial date of occupancy, the amount paid in excess of 1-1/2 times the monthly rental plus one month’s rent for each month of occupancy. The tenant must also establish the number of days each excessive amount was held by defendant.

         .000137 is the daily rate of interest for an annual rate of 5%.

       With respect to the individual named plaintiffs the following chart reveals the proper method of calculation of each one’s damages. It must be noted that the calculation is based on an assumption that each payment was made on the day required by the terms of the lease—i.e., the payments due on the 15th of each month were actually paid on the 15th. The record indicates that such ideal conditions did not prevail after August 15, 1973. By their own admission, plaintiffs did not make timely rental payments. In addition, the record indicates that plaintiffs vacated their apartment prior to expiration of the rental term. Reluctantly, we remand to the circuit court for relevant findings of fact. The present record is inadequate for this Court to make proper findings.

       In response to interrogatories submitted by plaintiffs, defendant supplied them with a list of the names and addresses of 173 tenants (or groups of tenants) of defendant since April 1,1973, the effective date of the landlord-tenant relationship act.

       In Grigg v Michigan National Bank, 405 Mich 148; 274 NW2d 752 (1979) , the Supreme Court held that costs of prejudgment notification in "spurious” class actions, which notification is not mandatory, must be borne by the plaintiff. Id. at 180,193. The Court also noted that reasonable attorneys’ fees, plus costs, would be payable from the proceeds of judgment prior to computation for distribution. Id. at 192. In an addendum signed by herself, Justice Coleman suggested that, in "spurious” class actions, class members not named as plaintiffs should not be allowed to intervene after a judgment on the merits.
      We are dealing in this case not with prejudgment but with post-judgment notice. Because no prejudgment notice was ordered and because the issue of opting in after judgment has not been resolved, we find no error in the procedure followed in this case. We further note that the propriety of allowing post-judgment intervention has not been challenged in the instant case.


author: N. J. Kaufman, P.J.

text:
    CENTRAL ADVERTISING COMPANY v CITY OF NOVI
    Docket No. 78-3527.
    Submitted May 14, 1979, at Detroit.
    Decided July 10, 1979.
    On May 20, 1974, the City of Novi enacted a signs and outdoor advertising ordinance: § 2.01 prohibited signs not expressly permitted by ordinance, § 3.01 described various permitted signs and specifically permitted certain on-premises advertising signs, and § 4.01(1)(1) prohibited off-premises signs and off-premises advertising signs. On February 3, 1976, Central Advertising Company petitioned the Novi Board of Appeals for a variance to erect a certain off-premises advertising sign. The petition was denied. On October 1, 1976, Central brought an action against Novi seeking damages, injunctive relief and a declaration that the ordinance is invalid for prohibiting and excluding Central’s off-premises advertising signs from within the City of Novi. Plaintiff’s damage claims were based upon defendant’s intentional interference with business relationships and intentional violation of the constitutional right to free speech, due process and equal protection. Plaintiff moved for summary judgment alleging that the ordinance was invalid as a matter of law because it prohibited all off-premises advertising signs in the City of Novi. Oakland Circuit Court, Robert L. Templin, J., enjoined defendant from enforcing § 4.01(1X1) and also held that off-premises advertising signs had to comply with § 3.01. Defendant appealed and plaintiff cross-appealed. The Court of Appeals affirmed the trial court’s determination that the ordinance impermissibly prohibited off-premises signs. However, the Court concluded that § 3.01 did not regulate off-premises signs and reversed the trial court on this issue (Docket No. 31153, decided September 14, 1977 [unreported]). Leave to appeal was denied by the Supreme Court on November 30, 1977, and the case was returned to the trial court for consideration of the claims for damages. 402 Mich 823 (1977). On February 14, 1978, defendant moved for summary judgment in the trial court claiming that plaintiff had failed to state a claim upon which relief could be granted. On March 16, 1978, summary judgment was granted to defendant. The trial court held that Novi was immune from plaintiff’s tort action. Plaintiff moved to file an amended complaint on May 3, 1978, which would add members of the city council, planning commission, board of appeals and director of building and safety as defendants. On May 31, 1978, the order granting summary judgment to defendant was entered along with a denial of plaintiff’s motion to file an amended complaint. Motions for rehearing and to set aside the order denying its motion to amend were denied. Plaintiff appeals. Held:

      References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment § 32.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 314.

       3 Am Jur 2d, Advertising §§ 4-9, 13 et seq.

    Municipal power as to billboards and outdoor advertising. 58 ALR2d 1314.
    Validity of regulations restricting height of free-standing advertising signs. 56 ALR3d 1207.

       56 Am Jur 2d, Municipal Corporations, Counties, and Other Political subdivisions § 127.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 27.

       5 Am Jur 2d, Appeal and Error § 727.

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 1-3, 30.

       73 Am Jur 2d, Summary Judgment §§ 16, 29.

       , 61 Am Jur 2d, Statutes § 9.

       5 Am Jur 2d, Appeal and Error §§ 876-879.

       59 Am Jur 2d, Parties § 190.
    61 Am Jur 2d, Pleading § 309.

      1. Plaintiffs tort claim against the City of Novi was properly disposed of by summary judgment on the grounds of governmental immunity. The passage and enforcement of an ordinance regulating the display of signs and prohibiting off-premises advertising within a city’s jurisdiction falls within the essence of government. It is a governmental function with governmental immunity. The mere fact that the ordinance has been invalidated does not strip the city of its mantle of governmental immunity.
    2. A complaint which fails to mention a statute relied upon and presents a plaintiffs claims in an unorganized and conclusionary manner justifies summary judgment for failure to state a claim. Plaintiff’s constitutional claims, intentional interference with business relationships and intentional violation of the right to free speech, due process and equal protection, apparently were based upon a Federal statute. The statute was not mentioned in the complaint and plaintiff’s claims were unorganized and conclusionary; furthermore, the Federal statute did not apply to the factual situation under consideration.
    3. The grant or denial of a motion to amend a pleading or to add parties is discretionary with the trial court. Plaintiffs motion appears to be a last minute attempt to get the court to consider the Federal statute which it failed to mention in the complaint. Plaintiff should have been aware of the statute and its application. In effect, plaintiff was asking the court to permit the addition of an entirely new cause of action. Denial of plaintiffs unreasonably tardy motion which would add a new cause of action was a proper exercise of discretion.
    Affirmed.
    1. Judgment — Summary Judgment — Motions — Failure to State Claim — Appeal and Error — Court Rules.
    Motions for summary judgment are tested by pleadings alone with every well-pled allegation assumed to be true; where a defendant moves for summary judgment, the Court of Appeals must determine if the plaintiffs claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).
    2. Torts — Govermental Immunity — Burden of Pleading.
    A plaintiff has the burden of pleading facts in avoidance of governmental immunity if he is to state an actionable claim, where his suit is against a governmental unit and the immunity issue is raised by the defendant.
    3. Municipal Corporations — Ordinances — Signs and Billboards — Constitutional Law.
    Municipalities have the power to adopt resolutions and ordinances relating to their municipal concerns, property and government; therefore, a municipal legislative body has a general grant of authority to control uses such as signs and billboards within its jurisdiction (Const 1963, art 7, § 22).
    4. Municipal Corporations — Home-Rule City — Home-Rule Act — Billboard Ordinances — City Charter — Off-Premises Advertising — Statutes.
    The home-rule statute authorizes a municipality to provide in its charter for licensing, regulating, restricting and limiting the number and locations of billboards within a city; however, a home-rule city cannot altogether prohibit off-premises advertising signs (MCL 117.4i[5]; MSA 5.2082[5]).
    5. Municipal Corporations — Ordinances — Signs and Billboards — Invalid Ordinances — Governmental Functions — Governmental Immunity.
    The passage and enforcement of an ordinance regulating the display of signs and prohibiting off-premises advertising within a city’s jurisdiction falls within the essence of government, it is a governmental function and where there are no statutory exceptions to immunity and the circumstances are such that the city would have been immune from tort liability at common law, the mere fact that the ordinance has been invalidated does not strip the city of its mantle of governmental immunity.
    6. Appeal and Error — Trial Court Rulings — Right Result — Wrong Reason.
    The Court of Appeals will not disturb a ruling of the trial court if that court reached the right result for the wrong reason.
    7. Constitutional Law — Rights and Privileges — Local Governments — Governmental Immunity — Statutes.
    Local governmental bodies retain some immunity from claims made by citizens allegedly deprived of any rights, privileges, or immunities secured by the constitution and laws of the United States (42 USC 1983):
    8. Judgment — Summary Judgment — Motions — Pleadings.
    Mere conclusions, without factual allegations to support them, will not withstand a motion for summary judgment (GCR 1963, 111.1[1]).
    9. Pleading — Complaint — Requirements of Complaint — Summary Judgment — Court Rules.
    A complaint which fails to mention a statute relied on and presents a plaintiff’s claims in an unorganized and conclusionary manner violates a court rule and justifies summary judgment for failure to state a claim (GCR 1963, 111.1[1]).
    10. Pleading — Inapplicable Statute — Failure to State Claim.
    A party fails to state a claim Upon which relief can be granted where recovery is alleged pursuant to a statute which does not apply to the factual situation under consideration.
    11. Appeal and Error — Evaluation of Claim — Verbiage — Substance of Claim.
    The Court of Appeals, in evaluating a claim, looks beyond verbiage to determine the substance of the cause of action pled.
    12. Pleading — Amendment of Pleadings — Addition of Parties — Discretion.
    The grant or denial of a motion to amend a pleading or to add parties is discretionary with the trial court (GCR 1963, 118.1, 207).

      Reid & Reid, P.C. (by Michael H. Perry), for plaintiff.

      Lampert, Fried & Levitt, P.C. (by David M. Fried, Monica Farris Linkner and Gary E. Levitt), for defendant.
    Before: N. J. Kaufman, P.J., and Bashara and K. B. Glaser, Jr., JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   N. J. Kaufman, P.J.

Plaintiff appeals by right from a May 31, 1978, order granting summary judgment to defendant on the grounds of governmental immunity and from a June 12, 1978, order denying plaintiff’s motion to amend its complaint to add certain city officials as defendants.

On May 20, 1974, Novi enacted a "Signs and Outdoor Advertising” ordinance which borrowed heavily from an Ann Arbor ordinance regulating signs.

The next day, May 21, 1974, the Supreme Court decided Central Advertising Co v Ann Arbor, 391 Mich 533; 218 NW2d 27 (1974), aff'd on remand, 394 Mich 943 (1975). The Court concluded that the Ann Arbor sign ordinance operated to proscribe billboards altogether and that this action exceeded the authority of the city council under the home-rule act, MCL 117.4i(5); MSA 5.2082(5), and the city charter, Ann Arbor Charter, § 3.1(2)(f). However, since there were no findings of fact regarding each of the 177 plaintiffs affected by the ordinance, the matter was remanded to the trial court for specific findings. The trial court’s findings and subsequent order were affirmed by the Supreme Court on June 19, 1975.

Thereafter, on February 3, 1976, Central petitioned the Novi Board of Appeals for a variance to erect a certain off-premises advertising sign. The petition was denied on March 2, 1976.

On October 1, 1976, Central commenced the instant action, seeking damages, injunctive relief and a declaration that:

"* * * Sections 2.01, 3.01 and 4.01 of the Defendant’s Ordinance No. 74-68 to be [are] invalid for the reason that it prohibits and excludes Plaintiff’s off-premises advertising signs from within the City of Novi.”

Central filed a six-count complaint which made various overlapping claims for damages based on defendant’s intentional interference with plaintiff’s business relationships and defendant’s intentional violation of plaintiff’s Federal constitutional rights to free speech, due process and equal protection. The civil rights claims apparently were based on 42 USC 1983.

Plaintiff moved for summary judgment claiming that the ordinance was invalid as a matter of law because it prohibited all off-premises advertising signs within the City of Novi. On November 24, 1976, the trial judge granted partial summary judgment to plaintiff. The court enjoined the defendant from enforcing § 4.01(1)(1) of the ordinance but also held that off-premises advertising signs had to comply with § 3.01. See footnote 1.

Defendant appealed to this Court and plaintiff cross-appealed. On September 14, 1977, in an unpublished per curiam opinion (Docket No. 31153, decided September 14, 1977 [unreported]), this Court relied on Ann Arbor, supra, and affirmed the trial court’s determination that the ordinance impermissibly prohibited off-premises signs. However, the Court concluded that § 3.01 did not regulate off-premises signs and reversed the trial court on this issue. Leave to appeal was denied by the Supreme Court on November 30, 1977, and the case was returned to the trial court for consideration of the claims for damages. 402 Mich 823 (1977).

On February 14, 1978, defendant moved for summary judgment claiming that plaintiff had failed to state a claim upon which relief could be granted because its claims were barred by governmental immunity. The trial court accepted defendant’s argument on March 16, 1978, and ruled:

"This Court does not consider the action taken by the Defendant City of Novi in adoption of the ordinance in question which this Court later declared invalid to be a tort action and I am going to grant the motion for summary judgment to Defendant on the basis that the City of Novi is immune and does not come within the statutory exception to a municipal immunity for a tort action.”

Central moved to file an amended complaint on May 3, 1978. Central wished to add members of the Novi City Council, Planning Commission, Board of Appeals and the Novi Director of Building and Safety as defendants.

On May 31, 1978, the trial court entered an order of summary judgment in favor of defendant. The trial court also denied plaintiffs motion to file an amended complaint. The corresponding order was filed June 12, 1978.

Thereafter, on June 15, 1978, plaintiff filed a motion for rehearing on the entry of summary judgment. Plaintiff argued that the trial court’s ruling that defendant was immune from damage suits was erroneous in light of Monell v Dep’t of Social Services of the City of New York, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978), which had been decided on June 6, 1978. Plaintiff also moved to set aside the order denying its motion to amend the complaint. The motions were denied and plaintiff now appeals.

We are faced with two primary issues on appeal: Did the trial court properly grant summary judgment to the defendant because plaintiff failed to state a claim upon which relief can be granted? Did the trial court abuse its discretion in denying plaintiffs motion to amend its pleading by adding defendants?

In determining the propriety of summary judgment under GCR 1963, 117.2(1), we are limited to a review of the pleadings alone. Every well-pled allegation is assumed to be true. We must determine if plaintiff’s claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. See Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Detroit Col L Rev 397, 401-402. Since plaintiff is suing a governmental unit, it must plead facts in avoidance of governmental immunity to state an actionable claim. Butler v Wayne County Sheriff’s Dep’t, 75 Mich App 202, 203; 255 NW2d 7 (1977).

Plaintiff’s claims involve the tort of intentional interference with business and contractual relationships and alleged causes of action based on the deprivation of constitutional rights. We consider the tort claim first.

MCL 691.1407; MSA 3.996(107) is the controlling statutory provision for governmental immunity. This section provides:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise and discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”

Since none of the statutory exceptions apply to this case, we must determine if defendant was engaged in the exercise and discharge of a governmental function when it passed and enforced its sign ordinance.

The meaning of the phrase "engaged in the exercise and discharge of a governmental function” is an issue which has sharply divided our Supreme Court. However, in Parker v Highland Park, 404 Mich 183, 193-194; 273 NW2d 413 (1978), three justices concluded:

"* * * We would limit the term 'governmental function’ to those activities sui generis governmental—of essence to governing. This principle was recognized in Lykins v Peoples Community Hospital, 355 F Supp 52, 53 (ED Mich, 1973):
" 'This court does not believe the statutory scheme contemplates immunity for the day-to-day operations of a hospital. The statute speaks of immunity for "governmental functions,” and this court is of the opinion that while it may be an appropriate goal or objective of government to establish a hospital authority, it does not follow that the daily operations of such a hospital authority constitute a governmental function. Governmental functions more properly refer to the tasks of governing. There is, for example, a governmental character to activities such as the collection of taxes or the operation of a court system. But the services of healing offered by a public hospital are not governmental functions.’ ”

In a concurring opinion in Parker, supra, at 200, Justice Moody offered a similar test:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this parameter, although performed by a government agency, are not governmental functions and therefore not immune.”

There is no question that a municipal legislative body has a general grant of authority to control uses such as signs and billboards within its jurisdiction. Const 1963, art 7, § 22 provides that municipalities shall have the power to adopt resolutions and ordinances relating to their municipal concerns, property and government. The home-rule act, MCL 117.1 et seq.; MSA 5.2071 et seq., further authorizes a municipality to provide in its charter:

"For licensing, regulating, restricting and limiting the number and locations of billboards within the city.” MCL 117.4i(5); MSA 5.2082(5).

However, a home-rule city cannot altogether prohibit off-premises advertising signs. Central Advertising Co v Ann Arbor, supra.

The specific tortious activity alleged in the instant case is the enactment and enforcement by the city of an ordinance regulating the display of signs within the defendant’s jurisdiction. Plaintiff alleged that the ordinance effectively excluded all off-premises signs, thereby interfering with the plaintiff’s business relationships and creating liability in the city for plaintiff’s damages.

It is true that the part of defendant’s sign ordinance which prohibited off-premises advertising signs has been found invalid by a trial court and this Court. But the mere fact that an ordinance has been invalidated does not strip the city of its mantle of governmental immunity. At common law, the defendant would have been immune from liability under the present circumstances. See Williams v Detroit, 364 Mich 231, 261; 111 NW2d 1 (1961), Stevens v Muskegon, 111 Mich 72; 69 NW 227 (1896), 57 Am Jur 2d, Municipal, School, & State Tort Liability, § 116, pp 124-125. Even under the tests announced in Parker, supra, it is apparent that the passage and enforcement of a regulatory ordinance falls within the "essence of government” and can be "effectively accomplished only by government”. See Thomas v Dep’t of State Highways, 398 Mich 1, 20-21, 22, 32, 34; 247 NW2d 530 (1976) (dissenting opinions of Kavanagh, Fitzgerald and Levin, JJ.), Kethman v Oceola Twp, 88 Mich App 94, 102-103; 276 NW2d 529 (1979), Armstrong v Ross Twp, 82 Mich App 77, 82; 266 NW2d 674 (1978). Accordingly, we hold that the City of Novi is immune from plaintiff’s tort claim and the trial judge properly granted summary judgment on that claim.

We now come to the most difficult part of this case—defendant’s alleged interference with plaintiff’s Federal constitutional rights. Since these claims were not based on tort theory, they should not have been disposed of in the trial court’s grant of summary judgment to defendant on the grounds of state governmental immunity. Rather than remand the constitutional claims to the trial court, however, we will review the issue. If the trial court reached the right result for the wrong reason, we will not disturb his ruling. See Queen Ins Co v Hammond, 374 Mich 655, 658-659; 132 NW2d 792 (1965).

Until recently, municipal corporations such as defendant were held not to be "persons” subject to liability under 42 USC 1983. Monroe v Pape, 365 US 167; 81 S Ct 473; 5 L Ed 2d 492 (1961). However, on June 6, 1978, six days after judgment for defendant was entered in the instant case, the Supreme Court issued its opinion in Monell v Dep’t of Social Services of the City of New York, supra, overruling Monroe. Despite Monell, local government bodies may retain some immunity from claims made under § 1983. See Monell, supra, at 700, 712-713. In fact, it is very possible that the tests for immunity discussed in Armstrong, supra, at 85-87, are still valid.

Having made these observations, we nevertheless conclude that plaintiff has failed tó state a claim under 42 USC 1983 for two reasons.

First, mere conclusions, without' factual allegations to support them, will not withstand a motion for summary judgment. Valentine v Michigan Bell Telephone Co, 388 Mich 19, 30; 199 NW2d 182 (1972), Sottile v DeNike, 20 Mich App 468, 472; 174 NW2d 148 (1969), and see GCR 1963, 111.1(1). In the instant case, plaintiffs complaint never mentions § 1983 and presents claims of civil rights violations in an unorganized and conclusionary manner, thereby violating GCR 1963, 111.1(1) and justifying summary judgment for failure to state a claim.

Second, a party fails to state a claim upon which relief can be granted where recovery is alleged pursuant to a statute which does not apply to the factual situation under consideration. See Powers v City of Troy, 380 Mich 160; 156 NW2d 530 (1968), Hoag v Paul C Chapman & Sons, Inc, 62 Mich App 290, 300-301; 233 NW2d 530 (1975). In evaluating a claim, we look beyond verbiage to determine the substance of the cause of action pled. See e.g. Nicholson v Han, 12 Mich App 35; 162 NW2d 313 (1968). Here, plaintiff successfully challenged the extent of defendant’s sign regulatory powers under Michigan’s home-rule act. The case really has nothing to do with plaintiffs Federal constitutional rights. The mere fact that plaintiff alleges or argues that its claim is based on § 1983 does not magically transform the action into something it is not. See Martin v Hancock, 466 F Supp 454, 456 (DC Minn 1979), Zarcone v Perry, 438 F Supp 788, 790 (ED NY 1977), aff'd 581 F2d 1039 (1978).

The foregoing analysis is buttressed by the fact that New York permits the prohibition of certain off-premises billboards and has not been rebuffed by the United States Supreme Court. See Modjeska Sign Studios, Inc v Berle, 43 NY2d 468; 373 NE2d 255 (1977), appeal dismissed 439 US 809; 99 S Ct 66; 58 L Ed 2d 101 (1978), and Suffolk Outdoor Advertising Co v Hulse, 43 NY2d 483; 373 NE2d 263 (1977), appeal dismissed 439 US 808; 99 S Ct 66; 58 L Ed 2d 101 (1978). In Modjeska, plaintiff argued it was being deprived of property without due process and hindered in its exercise of free speech; in Suffolk, plaintiff argued its right to free speech was being violated. The New York Court of Appeals rejected both arguments and the United States Supreme Court dismissed the appeals for want of a substantial Federal question.

Plaintiffs final argument deals with the trial court’s denial of its motion to add defendants. The granting or denial of a motion to amend a pleading or to add parties is discretionary with the trial court. Matson v Soronen, 57 Mich App 190, 193; 226 NW2d 52 (1974); GCR 1963, 118.1; GCR 1963, 207. We find no abuse of discretion in this case.

Part of the case had been appealed to this Court and the Supreme Court, and the trial judge had already decided to grant summary judgment to the defendant on plaintiffs claims for damages before plaintiff moved to add defendants. Plaintiff’s motion appears to have been a last minute attempt to rescue its § 1983 claim from the holding of Monroe, supra, which excluded municipal corporations from liability under that statute. But plaintiff should have been aware of the Monroe holding from the beginning of the case. In effect, plaintiff was asking the trial judge to permit it to add an entirely new cause of action. Thus, even if § 1983 arguably applied to this case, the trial court’s denial of plaintiff’s motion was a proper exercise of discretion. We do not think justice would have been served by adding new defendants.

In summary, plaintiffs tort claim against defendant was properly disposed of by summary judgment under GCR 1963, 117.2(1) on the grounds of governmental immunity. The defendant’s adoption and enforcement of a regulatory sign ordinance, an activity specifically permitted by state statute, was of the "essence of government”.

Plaintiff’s constitutional claims apparently were based on 42 USC 1983, a statute which was not mentioned in plaintiffs complaint. These claims were subject to summary judgment under GCR 1963, 117.2(1) because the claims were conclusory and were premised on a statute which does not apply to the case.

Finally, even assuming § 1983 applied to this case, the trial judge did not abuse his discretion in denying plaintiffs unreasonably tardy motion to add defendants and, in effect, add a new cause of action.

Affirmed. No costs, a public question being involved.

       Section 2.01 prohibited signs not expressly permitted by the ordinance. Section 3.01 described various permitted signs and specifically permitted certain on-premises advertising signs. Section 4.01(1)(1) prohibited "off premise signs and off premises advertising signs”.

       While plaintiff’s complaint does not mention a particular statute or cause of action in connection with its civil rights claims, it is clear on appeal that plaintiff intended to state a claim under 42 USC 1983, which provides:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
      A plaintiff who makes out a claim under § 1983 is entitled to various forms of relief, including money damages. Myers v Anderson, 238 US 368; 35 S Ct 932; 59 L Ed 1349 (1914). State as well as Federal courts have jurisdiction to enforce a plaintiff’s rights under § 1983. See Armstrong v Ross Twp, 82 Mich App 77, 83-87; 266 NW2d 674 (1978).

       Statutory exceptions to the general grant of governmental immunity include MCL 691.1402; MSA 3.996(102) (failure to keep highways fit and safe for travel), MCL 691.1405; MSA 3.996(105) (negligent operation of a motor vehicle), and MCL 691.1406; MSA 3.996(106) (dangerous and defective building). Further, statutory governmental immunity does not extend to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function, i.e., any activity conducted primarily for the purpose of producing a pecuniary profit. MCL 691.1413; MSA 3.996(113).

       We note that there may be a third reason as well. If the Armstrong immunity tests are still viable, plaintiff may have been required to plead facts in avoidance of immunity. See Armstrong, supra, at 86, but see Pinckney v County of Northhampton, 433 F Supp 373, 378 (ED Penn, 1976). If plaintiff did not plead the required facts, summary judgment for failure to state a claim may have been appropriate for that reason alone. However, since Monell expressly avoided the immunity question and we need not address it, we rest our decision on other grounds.

       While the Supreme Court’s dismissals may or may not conclusively establish that an ordinance banning off-premises signs does not infringe on Federal due process or free speech rights, see Hicks v Miranda, 422 US 332, 344; 95 S Ct 2281; 45 L Ed 2d 223 (1975), and Metromedia Inc v San Diego, 154 Cal Rptr 212, 223; 592 P2d 728 (1979), but see Mandel v Bradley, 432 US 173, 175-176; 97 S Ct 2238; 53 L Ed 2d 199 (1977), we are not inclined to ignore the Supreme Court’s actions altogether.
      We also note that several recent decisions in other jurisdictions have held that a community can entirely prohibit off-site advertising without offending the United States Constitution. See Metromedia, supra, and cases cited therein.