author: Bashara, J. P. R. Mahinske, J.

text:
    STRACHAN v MUTUAL AID AND NEIGBORHOOD CLUB, INC.
    Opinion of the Court
    1. Judgment — Res Judicata — Contested Issue.
    Res judicata is a jurisprudential doctrine founded upon the premise that litigation of a controversy must have a termination point; the doctrine becomes applicable when an adjudicatory proceeding on a contested issue has progressed to a final determination and all available courses of appeal have been exhausted or not pursued within the prescribed time limits.
    2. Judgment-Administrative Law — Res Judicata — Final Judgment.
    Res judicata is applicable to administrative proceedings that are adjudicatory in nature and from which an appeal is provided, where the Legislature intends that the tribunal’s judgment is to be final absent an appeal.
    3. Appeal and Error — Administrative Law — Civil Rights Commission.
    A plaintiff who has failed to appeal from a final order of the Civil Rights Commission is precluded from further litigation of the issues determined by that order.

      References for Points in Headnotes

       47 Am Jur 2d, Judgments § 457.
    Judgment as res judicata pending appeal or motion for a new trial, or during the time allowed therefor. 9 ALR2d 984.

       2 Am Jur 2d, Administrative Law §§ 551, 552.

       15 Am Jur 2d, Civil Rights §§ 499-513.
    Validity and construction of labor legislation prohibiting discrimination on account of age. 29 ALR3d 1407.

       46 Am Jur 2d, Judgments § 404.

       46 Am Jur 2d, Judgments §§ 446, 452, 495, 500, 501.

       Res judicata effect of judgment dismissing action, or otherwise denying relief, for lack of jurisdiction or venue. 49 ALR2d 1036.
    Res judicata as affected by limitation of jurisdiction of court which rendered judgment. 83 ALR2d 977.
    Dismissal of civil action for want of prosecution as res judicata. 54 ALR3d 473.
    Judicial qualification of provision of Rule 41(b) of Federal Rules of Civil Procedure that dismissal for failure to prosecute or to comply with federal rules or court order, and certain other dismissals operate as adjudication upon merits. 5 ALR Fed 897.

       2 Am Jur 2d, Administrative Law § 595.

      Dissent by P. R. Mahinske, J.
    4. Civil Rights — Employment—Age Discrimination — Civil Rights Commission — Circuit Courts' — Jurisdiction.

      The right to obtain and retain employment without discrimination on the basis of age is a civil right which is enforceable concurrently before the Civil Rights Commission and in the circuit court.

    5. Judgment — Res Judicata — Requirements.

      Three requirements must be satisñed in order for a former judgment to be a bar to a subsequent action: (1) identity of subject matter, (2) identity of parties or their privies, and (3) a judgment on the merits.

    6. Judgment — Res Judicata — Dismissal—Lack op Jurisdiction— Court Rules.

      An involuntary dismissal which is not for lack of jurisdiction operates as an adjudication on the merits and bars a plaintiff from bringing a second action unless it is speciñed that the dismissal is without prejudice; the corollary to this rule is that a dismissal for lack of jurisdiction does not operate as an adjudication on the merits (GCR 1963, 504.2).

    7. Judgment — Dismissal—Administrative Law — Jurisdiction— Court Rules.

      The dismissal of a case on the basis of a plaintiff’s failure to exhaust his administrative remedies, and not on the merits of the plaintiff’s allegations, was a dismissal for "lack of jurisdiction” within the meaning of a court rule governing the effect of an involuntary dismissal upon a subsequent action between the same parties (GCR 1963, 504.2).

    8. Administrative Law — Exhaustion op Remedies — Circuit Court • — Jurisdiction.

      Failure of a plaintiff to exhaust his administrative remedies deprives a circuit court of subject matter jurisdiction.

    9. Judgment — Jurisdiction—Res Judicata.

      A judgment made on the grounds that the court lacks jurisdiction, while not on the merits and not conclusive on the merits, is conclusive as to the jurisdictional question presented and the jurisdictional issue may not be relitigated.
      10. Judgment — Jurisdiction—Res Judicata — Erroneous Judgment.

      Generally, a decision of a court that it is without jurisdiction to hear a matter acts as a bar to the bringing of another action even if that decision is erroneous; this rule is, however, subject to exceptions under proper circumstances.

    11. Judgment — Res Judicata — Administrative Law — Exhaustion of Remedies — Jurisdiction—Circumstances.

      A dismissal by a circuit court on the basis that the plaintiff had not exhausted her administrative remedies where she had also filed a complaint to the Civil Bights Commission which had not yet been adjudicated when the plaintiff filed her complaint in circuit court is not res judicata as to a second complaint filed after the commission dismissed the matter where the jurisdictional question and the circumstances were different at the time of filing the second complaint.

    12. Administrative Law — Review—Civil Rights Commission — Exhaustion of Remedies — Statutes-—Rules.

      A final decision or order of the Civil Bights Commission is subject to direct review by the courts; the filing of a motion or application for reconsideration or rehearing is not required prior to seeking a consideration of the matter by a circuit court (MCLA 24.301; MSA 3.560[201], 1970-1971 AACS, R37.7[a], 1967 AACS, R37.18[aj).

    Appeal from Wayne, Peter B. Spivak, J.
    Submitted June 21, 1977, at Detroit.
    (Docket No. 31118.)
    Decided February 6, 1978.
    Leave to appeal applied for.
    Charlotte Strachan filed a complaint with the Michigan Civil Rights Commission alleging that her employment with Mutual Aid and Neighborhood Club, Inc., was wrongfully terminated. While this action was pending, she filed a complaint in circuit court seeking declaratory and injunctive relief for the same alleged unlawful discrimination. The circuit court granted a summary judgment for defendant. The Civil Rights Commission dismissed plaintiff’s complaint. Plaintiff did not appeal from that order but instead filed a second complaint in circuit court based upon the same allegations. Accelerated judgment for defendant. Plaintiff appeals.
    Affirmed.

      Haynes & Donnelly, P. C., for plaintiff.

      Keller, Thoma, Toppin & Schwarze, P. C. (by Michael L. Smith), for defendant.
    Before: D. C. Riley, P. J., and Bashara and P. R. Mahinske, JJ.

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

   Bashara, J.

Plaintiff appeals a circuit court order granting defendant’s motion for an accelerated judgment.

After being discharged from her employment with defendant, plaintiff filed a complaint with the Michigan Civil Rights Commission claiming that her termination constituted an unlawful employment discrimination on account of age and sex. While the proceedings were pending with the commission, plaintiff instituted suit in the circuit court seeking relief for the same alleged unlawful discrimination. This action was dismissed "with prejudice” on defendant’s motion for accelerated judgment, which contended that plaintiff failed to first exhaust her administrative remedies before the commission. No appeal of the circuit court’s order of dismissal was taken by plaintiff.

Subsequently, the commission dismissed plaintiff’s action due to insufficient evidence to sustain the charge. Review of this determination was not pursued by plaintiff. Instead, she filed a second suit in the circuit court. This proceeding was dismissed on defendant’s motion for accelerated judgment, which was based on the claim that plaintiff’s suit was barred under the doctrine of res judicata. Plaintiff thereafter perfected this appeal.

Resolution of this controversy does not require us to review or pass upon the propriety of the first circuit court order of dismissal. Rather, it is apparent from the proceedings below that plaintiff had an opportunity to completely litigate the merits of her claim before the commission. Having failed to appeal its decision, the plaintiff is barred from collaterally attacking that determination by another proceeding. Accordingly, the order granting defendant’s motion is affirmed.

Res judicata is a jurisprudential doctrine founded upon the premise that litigation of a controversy must have a termination point. Otherwise, judicial resources would be unnecessarily expended, and the rights of litigants would be subjected to interminable contest.

The doctrine of res judicata becomes applicable when an adjudicatory proceeding on a contested issue has progressed to a final determination, and all available courses of appeal have been exhausted or not pursued within the prescribed time limitations. Thereafter, that issue becomes settled and may not be relitigated between the same parties in a collateral proceeding, absent some compelling equity not here pertinent. See Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971), Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965). Further, this doctrine is applicable to administrative proceedings that are adjudicatory in nature and from which an appeal is provided, where the Legislature intends that the tribunal’s judgment is to be final absent an appeal. Senior Accountants, Analysts & Appraisers Assoc v City of Detroit, 399 Mich 449, 457-458; 249 NW2d 121, 124-125 (1976).

All proceedings initiated by plaintiff had the purpose of seeking relief for an alleged unfair employment practice, as provided in § 3a of the Michigan State Fair Employment Practices Act, MCLA 423.301 et seq.; MSA 17.458(1) et seq. Any relief to which the plaintiff could establish legal entitlement was obtainable from the commission pursuant to its legislatively created powers. MCLA 37.5(h); MSA 3.548(5)(h). However, the commission, after hearing witnesses and reviewing other evidence, issued an order dismissing plaintiffs complaint; an order from which no appeal was perfected.

MCLA 37.4; MSA 3.548(4) provided as follows:

"The commission shall investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by the constitution of this state, and shall secure the equal protection of such civil rights without such discrimination. A complaint alleging an unlawful discriminatory practice is subject to the same procedure as a complaint alleging an unfair employment practice under Act No. 251 of the Public Acts of 1955, being sections 423.301 to 423.311 of the Compiled Laws of 1948. Appeals from final orders of the commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court for the county of Ingham, the circuit court for the county wherein the alleged unlawful discriminatory practice is alleged to have occurred or where the person, firm or corporation against whom the complaint was filed, resides or has his principal place of business. If an appeal is not taken within 30 days after the service of an appealable order of the commission, the commission may obtain a decree for the enforcement of the order from the circuit court which would have had jurisdiction of the appeal.” (Emphasis added.)

Evident from the language used is a legislative intent that an unappealed order of the commission becomes final. After 30 days from receipt of the commission’s order, if no appeal has been taken, enforcement of the order may be obtained merely by showing service of a regularly entered order and the jurisdiction of the commission and circuit court. Id.

Accordingly, we conclude that the commission’s order of dismissal became final when plaintiff failed to seek review within the prescribed time period. The circuit court order granting an accelerated judgment was a proper resolution of this case, albeit based upon the res judicata effect of a prior circuit court order on which we express no opinion as to propriety. Nevertheless, since the commission’s order is final, plaintiff is precluded from further litigation of the issues determined by that order.

Affirmed.

D. C. Riley, P. J., concurred.

P. R. Mahinske, J.

(dissenting). This case presents questions dealing with the concurrent jurisdiction of the Michigan Civil Rights Commission and the circuit courts, and the application of the doctrine of res judicata following an erroneous dismissal "with prejudice” by the circuit court.

Plaintiff was employed by defendant as a secretary. She was fired in February, 1974, after working 17 years for defendant. On April 23, 1974, she filed a complaint with the Michigan Civil Rights Commission (CRC), alleging that she had been unlawfully discharged because of her age and sex. Plaintiff was 58 years old at the time of her discharge. Three days after filing with the CRC, on April 26, 1974, plaintiff filed a complaint in circuit court in which she alleged that the discharge was arbitrary, capricious, and without cause. She asserted two theories of recovery: (1) breach of implied contract, and (2) unlawful discharge on the basis of age in violation of the Michigan State Fair Employment Practices Act (FEPA), MCLA 423.301 et seq; MSA 17.458(1) et seq.

In response to plaintiff’s complaint defendant filed a motion for summary judgment. GCR 1963, 117.2(1) and 117.2(3). The asserted basis for defendant’s motion was that plaintiff had failed to exhaust her administrative remedies. The circuit court agreed with defendant’s position, and issued an opinion stating in part, "Plaintiff must first exhaust her administrative remedies before seeking redress in circuit court”. On the basis of this finding the court dismissed plaintiff’s complaint by order dated February 21, 1975. The order specified that the complaint was dismissed "with prejudice”, and was signed by both parties’ attorneys below the words, "Approved as to content and form”.

Plaintiff did not appeal from the February, 1975, circuit court dismissal, but instead awaited the CRC’s decision on whether to issue a charge. On May 14, 1975, the CRC decided not to issue a charge and dismissed plaintiff’s petition on the basis of insufficient evidence. Plaintiff did not seek a reconsideration of this determination by the administrative agency, nor did she seek circuit court review of the agency’s dismissal.

On September 17, 1975, plaintiff filed a second action in the circuit court, based on her discharge from defendant’s employ and alleging age discrimination and breach of implied contract. Plaintiff asserted that the court now had jurisdiction because plaintiff had exhausted her administrative remedies as the court had instructed her to do. Defendant responded with a motion for accelerated judgment, on the grounds that (1) plaintiff had failed to exhaust her administrative remedies, because she had failed to seek reconsideration by the CRC and/or to appeal to circuit court, and (2) plaintiffs suit was barred by the doctrine of res judicata. Again the circuit court agreed with defendant, and on November 15, 1976, entered an order dismissing the second complaint on both of the above grounds. It is from this second dismissal that plaintiff appeals as of right. I would reverse.

I — Concurrent Jurisdiction of Civil Rights Commission and Circuit Court

Plaintiffs first contention is that the circuit court erred in dismissing her first complaint. I agree. The right to obtain and retain employment without discrimination on the basis of age is a civil right. MCLA 423.301; MSA 17.458(1); Holmes v Haughton Elevator Co, 75 Mich App 198, 200; 255 NW2d 6 (1977). In Pompey v General Motors Corporation, 385 Mich 537, 559-560; 189 NW2d 243 (1971), the Court held that statutory civil rights are enforceable concurrently in the Civil Rights Commission and the circuit court. The Pompey Court stated as follows:

"Since Bolden [Bolden v Grand Rapids Operating Corp, 239 Mich 318; 214 NW 241; 53 ALR 183 (1927)] and St. John [St John v General Motors Corp, 308 Mich 333; 13 NW2d 840 (1944)] clearly affirm the existence of a cause of action for damages under a civil rights statute, and since the judicial remedies provision in § 29 of Article 5 clearly intended no displacement of judicial remedies, defendant’s argument as to the 'exclusive’ jurisdiction of the Civil Rights Commission is without merit.
"We hold that plaintiff can maintain a civil damage action for redress of his statutorily created right to be free from discrimination in private employment, and that this remedy may be pursued in addition to the remedial machinery provided by statute.” (Footnote omitted.)

Pompey dealt with race discrimination; this Court in Holmes, supra, held that that decision by its terms also applied to age discrimination.

In dismissing plaintiffs first suit, the trial court relied upon Michigan Civil Rights Commission v Clark, 390 Mich 717; 212 NW2d 912 (1973), for the proposition that plaintiff was required to exhaust her administrative remedies before filing a complaint in circuit court. Clark provides no support for this proposition. Clark dealt with the question of whether a person against whom a complaint has been lodged by the CRC may, by seeking a judicial remedy, oust the CRC from consideration of a complaint against him. In the case at bar the question is whether or not a plaintiff asserting a violation of a statutory civil right, such as the right to be free from age discrimination, is entitled to seek concurrently administrative and judicial relief. This question was answered in the affirmative by the Supreme Court in Pompey, supra. It is of no consequence that plaintiff had already filed with the Civil Rights Commission at the time she began her circuit court action. Plaintiff was entitled to seek redress for the alleged discrimination in the Civil Rights Commission alone, in the circuit court alone, or in both forums at the same time or in whatever order plaintiff chose. This was the clear holding in Pompey, supra, and for this reason the circuit court erred in dismissing plaintiffs first complaint.

II — Res Judicata

Plaintiff did not appeal from the first circuit court dismissal. Instead, she waited until the CRC decided not to issue a charge, and then returned to the circuit court saying she had exhausted her administrative remedies. The circuit court again dismissed, this time on the basis of res judicata as well as failure to exhaust administrative remedies. On appeal plaintiff urges that this dismissal was also erroneous, and I would agree.

A. General Principles of Res Judicata

The policy considerations behind the rule of res judicata are well known. In Johnson v Haley, 357 Mich 411, 418; 98 NW2d 555 (1959), our Supreme Court quoted as follows from Baldwin v Iowa State Traveling Men’s Association, 283 US 522, 525; 51 S Ct 517; 75 L Ed 1244 (1931):

" 'Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.’ ”

By application of the doctrine of res judicata the courts seek to avoid the time and expense of repetitive litigation and the problem of inconsistent verdicts on the same cause of action. See Rose v Rose, 10 Mich App 233, 236; 157 NW2d 16 (1968). In order for a former judgment to be a bar, three requirements must be satisfied: (1) identity of subject matter, (2) identity of parties or their privies, and (3) a judgment on the merits. Tucker v Rohrback, 13 Mich 73, 75 (1864); Curry v Detroit, 394 Mich 327, 331; 231 NW2d 57 (1975).

In the present case it is undisputed that the parties and the subject matter are the same. What is disputed is whether the original dismissal was, or should be given the effect of, a judgment "on the merits”. I would answer this difficult and many-faceted question in the negative.

B. Dismissals not for "Lack of Jurisdiction”

GCR 1963, 504.2 provides in pertinent part:

"For failure of the plaintiff to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.
"Unless the court in its order for dismissal otherwise speciñes, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits. ” (Emphasis added.)

The type of dismissal provided for in this sub-rule, i.e., any involuntary dismissal not for lack of jurisdiction, where the court fails to specify that the dismissal is without prejudice, is given res judicata effect. Rose v Rose, supra; Irwin v Via, 2 Mich App 375, 378; 139 NW2d 893 (1966); Dalton v Mertz, 197 Mich 390, 394; 163 NW 912 (1917). The Authors’ Comments to Rule 504 point out this res judicata effect:

"In general, a voluntary dismissal under sub-rule 504.1, is without prejudice, and thus does not prohibit subsequent prosecution of the same action, unless the order of dismissal specifically states that it is with prejudice. Conversely, an involuntary dismissal under sub-rule 504.2 operates as an adjudication on the merits —that is, with prejudice — thereby proscribing subsequent prosecution of the same claim, unless the order of dismissal speciñes otherwise.” 2 Honigman and Hawkins, Michigan Court Rules Annotated, Authors’ Comments, Rule 504, p 333. (Emphasis added.)

Thus, in the case of an involuntary dismissal which is not for lack of jurisdiction, the plaintiff is barred from bringing a second action unless the order of dismissal specifies that the dismissal is "without prejudice”. However, the corollary of the rule that any dismissal other than a dismissal for lack of jurisdiction operates as an adjudication on the merits is that a dismissal for lack of jurisdiction does not operate as an adjudication on the merits. Such a dismissal is by its nature "without prejudice”. Indeed, in construing a virtually identical provision in FR Civ P, 41(b), the Federal courts have so held. In Miller v Saxbe, 396 F Supp 1260, 1261 (DDC, 1975), the first suit was dismissed for lack of "subject matter jurisdiction” because plaintiff had failed to comply with a 30-day filing requirement of the Equal Employment Opportunity Act. The court stated that res judicata was inapplicable:

"Such a dismissal on jurisdictional grounds is not 'on the merits’ for res judicata purposes and consequently is 'without prejudice’ to a subsequent action raising the same or similar underlying facts if different grounds for jurisdiction are claimed. See F.R.Civ.P. Rule 41(b); IB J. Moore, Federal Practice (2d ed. 1974) ¶ 0.405[5] at 659-61 and n. 15-19; 5 id. ¶ 41.14[1] at 1173-74 * * * .”

Also stating that according to FR Civ P, 41(b) a dismissal for lack of jurisdiction did not operate as a dismissal on the merits were the Federal courts in Williams v Minnesota Mining & Manufacturing Co, 14 FRD 1, 8 (SD Cal, 1953), and Loucke v United States, 21 FRD 305, 309 (SD NY, 1957). Therefore, if in the present case the first dismissal was for "lack of jurisdiction”, it need not necessarily be given res judicata effect.

C. "Lack of Jurisdiction”: Failure to Exhaust Administrative Remedies

The question here, of course, is whether the first dismissal on the basis of failure to exhaust administrative remedies was a "dismissal for lack of jurisdiction”, within the meaning of Rule 504.2. I would answer this question in the affirmative. The Federal courts construe "lack of jurisdiction” dismissals broadly, so as to include most of the situations which in Michigan are grounds for accelerated judgment. See Sharp v Two Point Associates, Ltd, 78 Mich App 180, 188; 259 NW2d 416 (1977). In Costello v United States, 365 US 265, 285; 81 S Ct 534; 5 L Ed 2d 551 (1961), the Supreme Court discussed the Rule 41(b) . lack of jurisdiction exception as follows:

"We think that petitioner misconceives the scope of this exception from the dismissals under Rule 41(b) which operate as adjudications on the merits unless the court specifies otherwise. It is too narrow a reading of the exception to relate the concept of jurisdiction embodied there to the fundamental jurisdictional defects which render a judgment void and subject to collateral attack, such as lack of jurisdiction over the person or subject matter. We regard the exception as encompassing those dismissals which are based on a plaintiffs failure to comply with a precondition requisite to the Court’s going forward to determine the merits of his substantive claim. Failure to file the affidavit of good cause in a denaturalization proceeding falls within this category.”

The Costello Court went on to read "lack of jurisdiction” to mean any ground which did not go to the merits of the lawsuit, in accord with common law principles of res judicata.

In the case at bar, defendant argues that Costello applies only to nonspecifying dismissals, i.e., those in which the lower court has not specified whether the dismissal is with or without prejudice, as was the case in Costello. The Court in Weissinger v United States, 423 F2d 795, 799 (CA 5, 1970), so read Costello. However, I do not agree that Costello must necessarily be so limited, and would choose not to so limit it here. In the first place, the Weissinger Court stated that the "with prejudice” order which it was considering was "entered after full trial on all issues and with complete findings and conclusions”. 423 F2d at 800. This is clearly not the situation in the present lawsuit, where defendant moved for summary judgment in the first suit, and never defended on the merits. Secondly, the Costello language itself belies defendant’s construction. In Costello, the Court specified that it spoke to "the scope of this exception from the dismissals under Rule 41(b) which operate as adjudications on the merits unless the court specifies otherwise.” When this language is read together with that in Rule 41(b) (or GCR 1963, 504.2), it is clear that what the lack of jurisdiction exception refers to is all involuntary dismissals which do not specify that they are "without prejudice”. The dismissal in the case at bar, on the basis of failure to exhaust administrative remedies, was obviously not on the merits of the age discrimination and breach of implied contract claims, and was indeed based on plaintiffs "failure to comply with a precondition requisite to the Court’s going forward to determine the merits of [her] substantive claim”. Costello, supra, 285. Thus, it was a dismissal for "lack of jurisdiction” within the meaning of GCR 1963, 504.2.

Also in support of this conclusion is the language from Michigan cases dealing with exhaustion of remedies. The Administrative Procedures Act (APA), MCLA 24.301; MSA 3.560(201), provides that when a person has exhausted his administrative remedies and is aggrieved by a final decision in a contested case, the decision is subject to direct review in the courts. Michigan Courts have construed this provision as meaning that the circuit court lacks subject matter jurisdiction until a person has exhausted his or her administrative remedies:

" * * * the statute [MCLA 24.301; MSA 3.560(201)] makes it clear that the circuit court’s subject matter jurisdiction in this case depends upon exhaustion of administrative remedies.” International Business Machines Corp v Department of Treasury, 75 Mich App 604, 609; 255 NW2d 702 (1977).
"We conclude that plaintiff National Bank had an adequate administrative remedy in this case and that therefore, the circuit court lacked jurisdiction.” Farmers State Bank of Concord v Department of Commerce, Financial Institutions Bureau, 77 Mich App 313, 322; 258 NW2d 496 (1977).

See also, St Paul Fire & Marine Insurance Co v Littky, 60 Mich App 375, 378; 230 NW2d 440 (1975); Hooper v United States, 326 F2d 982, 984-985 (Ct Cl, 1964), cert den, 377 US 977; 84 S Ct 1882; 12 L Ed 2d 746 (1964).

Thus, under the view expressed in the above cases, failure to exhaust administrative remedies is viewed as so serious' that the court is deprived of subject matter jurisdiction. For this reason I do not hesitate to say that failure to exhaust is at least serious enough to come within the "lack of jurisdiction” exception of GCR 1963, 504.2. However, that does not end the inquiry.

D. Res Judicata Effect: Jurisdictional Rulings on Jurisdictional Issue Decided

Even though a judgment made on the grounds that the court lacks jurisdiction is not on the merits and is not conclusive as to the merits, it is conclusive as to what it did actually decide, i.e., the jurisdictional question presented. Restatement, Judgments, § 49, p 195. In Citizen’s Mortgage Corp v Second Avenue Limited Dividend Housing Association, 72 Mich App 1, 4; 248 NW2d 699 (1976), this Court quoted as follows from the Restatement, supra:

" 'b. Effect of judgment as to issues decided. Although, where the judgment for the defendant is not on the merits, the plaintiff is not precluded from maintaining a new action on the same cause of action, he is precluded from relitigating the very question which was litigated in the prior action.’ ”

This rule has been applied in many cases to rulings on jurisdiction. Some courts term its effect res judicata, Ripperger v A C Allyn & Co, 113 F2d 332 (CA 2, 1940), cert den, 311 US 695; 61 S Ct 136; 85 L Ed 450 (1940); Loucke v United States, supra, while others state that the first dismissal is conclusive as a direct estoppel on jurisdictional issues actually decided, Miller v Saxbe, supra. Whatever theory is used, the result is the same: the party may not relitigate the jurisdictional issue already litigated and decided in the first lawsuit. Barzin v Selective Service Local Board No. 14, 446 F2d 1382, 1383 (CA 3, 1971); Acree v Air Line Pilots Association, 390 F2d 199, 203 (CA 5, 1968); Davis v Saab-Scania of America, Inc, 133 Vt 317; 339 A2d 456 (1975).

In the conflict of laws area, Michigan cases also hold that the erroneous decision of a court that it has jurisdiction is res judicata. McDonald v McDonald, 74 Mich App 119, 123, fn 2; 253 NW2d 678 (1977); Johnson v Haley, supra, p 416. But what happens when the court which actually has jurisdiction erroneously decides that it lacks jurisdiction? This question is answered in Anno: Res judicata effect of judgment dismissing action, or otherwise denying relief, for lack of jurisdiction or venue, 49 ALR2d 1036, 1039:

"Since a judgment based on lack of jurisdiction of the court over the subject matter or over the defendant or on improper venue is not on the merits, it is obvious that such a judgment does not extinguish the cause of action and does not bar the plaintiff from maintaining another action on the same cause in a court having jurisdiction or in the proper district or county. Where a judgment dismissing an action for lack of jurisdiction is erroneous in that the court, in fact, had jurisdiction, the authorities are divided as to whether the judgment bars the plaintiff from maintaining a second action in an appropriate forum. The better view seems to be that, if another appropriate forum is available, the former judgment does not preclude the plaintiff from maintaining an action in that forum.

Many cases are cited to support the proposition of footnote 20 in the above annotation. These cases include In re Quinney’s Estate, 287 Mich 329; 283 NW 599 (1939), where the Court stated at pp 338-339:

"While a dismissal on the ground the court has no jurisdiction of the subject-matter is a conclusive determination of want of jurisdiction, it is no adjudication of the merits and will not bar another action for the same cause. 34 C.J. p 795.” (Emphasis added.)

The Quinney Court went on to decide that, despite the rule set forth therein, the probate court’s erroneous ruling that it did not have jurisdiction did not bar the plaintiff from bringing another action in the probate court. I would find that the circumstances in the case at bar are peculiar enough to require a similar holding on our part.

E. Administrative Remedies Exhausted: A Different Jurisdictional Question

The rule that res judicata applies to questions of jurisdiction is inapplicable in several situations. One such situation is where the precise jurisdictional question is different in the second lawsuit than it was in the first. Annot., 49 ALR2d 1036, § 6(b). In United States v Reid, 104 F Supp 260, 263 (ED Ark, 1952), for example, the Court held that its first dismissal based on invalid service of process was not res judicata on the question of its jurisdiction in the second action, where there was valid service on the defendant:

"With respect to res judicata it is to be pointed out that our order of April 4, 1951 merely quashed the original service on the defendant, which was admittedly invalid; we passed on nothing except the validity of that particular service, and, as indicated, the Government is now relying upon an entirely different service; our holding that the original service was invalid is in no sense res judicata of the validity of the present service or of the jurisdiction of this Court in the present proceeding.”

See also In re Kammerer’s Estate, 8 Wis 2d 494; 99 NW2d 841 (1959). In the case at bar this first exception is applicable because the first dismissal occurred when plaintiff’s case was still pending in the CRC. The jurisdictional question then was whether the court could take cognizance of plaintiff’s claim while plaintiff was at the same time pursuing her administrative remedies. But when plaintiff returned in September, 1975, and filed her second complaint, the jurisdictional question had changed to one of whether or not the circuit court could entertain her claim when the CRC had refused to issue a charge. Because these questions are far from identical, the first determination was not res judicata as to the second complaint.

A second related exception to the application of res judicata is where there has been a change of circumstances, i.e., where "subsequent events occur which create a new legal situation or alter the legal rights or relations of the litigants”. Annot., 49 ALR2d 1036, § 6(c), p 1058. In In re Raseman Estate, 18 Mich App 91, 104-105; 170 NW2d 503 (1969), lv den, 385 Mich 780 (1971), this Court applied this exception in a case dealing with maintenance of an insane person:

"Plaintiff has asserted that the order of the probate court dated November 24, 1944, which was not appealed from is res judicata and therefore conclusive on this appeal. The doctrine of res judicata is not immutable. It reflects a policy of law which seeks to end litigation, but it is only a policy, not an absolute rule, and it need not be and has not been applied rigidly without regard to disparate factual situations. Just because the 1944 probate court order was not appealed from and the petition for modification was not filed until 1964 does not mean that unpaid arrearages are not subject to modification. Indeed, the fact that a petition for modification can be entertained at all establishes that the doctrine of res judicata does not apply — if the doctrine applied, no court could modify the 1944 order. The reason why it is subject to modification is the reason why it can be modified as to arrearages, because it operates in futuro as to facts that had not occurred when the order was entered. It is a general rule that res judicata applies only where there has been an adjudication on the merits. The 1944 probate court adjudication on the merits did not constitute an adjudication on the merits of the 1945 or later facts and, hence, did not operate in the nature of res judicata as to later facts which have never been the subject of adjudication so as to prevent modification of the 1944 order as to accrued and unpaid arrearages.”

In the case at bar, as in Raseman, the jurisdictional facts existing when plaintiff filed her second complaint had never been litigated. Just as the statute involved in Raseman permitted modification and was thus antithetical to res judicata, so here the exhaustion doctrine inherently recognizes that at some future time, when plaintiff has exhausted his or her administrative remedies, the court will have jurisdiction. The change in circumstances exception has also been applied in cases where the fact existing at the time of the second complaint but not at the time of the first was diversity of citizenship, Ripperger v AC Allyn & Co, 37 F Supp 373, 374 (SD NY, 1940), aff'd, 113 F2d 332 (CA 2, 1940); Gilmer v Grand Rapids, 16 F 708 (WD Mich, 1883), sufficient contacts with the forum state, Myers Motors, Inc v Kaiser-Frazer Sales Corp, 80 F Supp 18, 22 (D Minn, 1948), and residency, Chiotte v Chiotte, 279 SW2d 296, 297 (Ark, 1955). In the case at bar I would find that a change in circumstances took place between the filing of the first and second lawsuits and made the doctrine of res judicata inapplicable.

Defendant argues that plaintiff had not satisfied the trial court’s precondition to the assumption of jurisdiction, because plaintiff had not really exhausted her administrative remedies. There is no support in law or logic for this position. MCLA 24.301; MSA 3.560(201), provides as follows:

"When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review, by the courts as provided by law. Exhaustion of administrative remedies does not require the ñling of a motion or application for rehearing or reconsideration unless the agency rules require the ñling before judicial review is sought. A preliminary, procedural or intermediate agency action or ruling is not immediately reviewable, except that the court may grant leave for review of such action if review of the agency’s final decision or order would not provide an adequate remedy.” (Emphasis added.)

The Civil Rights Commission rules do not require filing of a motion or application for reconsideration or rehearing:

"Rule 7. (a) A claimant may request of the commission a reconsideration of its refusal to issue a charge. Any party may request a reconsideration of the terms of conciliation. Any such request shall be in writing, state specifically the grounds upon which it is based, and be filed within 30 days after the date of mailing of the notice of disposition of which reconsideration is requested. It shall be filed at any office of the commission by personal delivery or by registered or certified mail, return receipt requested.” Administrative Code, 1970-1971 AACS, R 37.7(a), p 5351. (Emphasis added.)
"Rule 18.(a) Any party or intervener claiming to be aggrieved by a ñnal order of the commission, including without limitation a refusal to issue a charge, may appeal to the circuit court of the state of Michigan having jurisdiction provided by law.” Administrative Code, 1967 AACS, R 37.18(a), p 4084. (Emphasis added.)

Thus, if plaintiff had been required to exhaust any administrative remedies, as the circuit court told her she wras, her task was complete when the commission refused to issue a charge. The circuit court could not incorporate into its decision a requirement of exhaustion that the law does not recognize. As for defendant’s contention that "exhaustion of administrative remedies” includes appeal to circuit court, this is answered by the statute itself, which begins, "When a person has exhausted all administrative remedies available within an agency * * * .” I am not aware that the circuit court is within the Civil Rights Commission. Plaintiff did all that she was "required” to do, and the circuit court erred in dismissing her second complaint on grounds of res judicata and failure to exhaust administrative remedies.

Finally, as to the notation "with prejudice”, there is no magic in these words sufficient to turn this ruling — one inherently without prejudice ("Plaintiff must first exhaust her administrative remedies before seeking redress in the Circuit Court”) — into one which bars forever plaintiff’s cause of action. Such a result would be unjust and illogical. See Laude v Cossins, 334 Mich 622; 55 NW2d 123 (1952), where two "with prejudice” dismissals on grounds of lack of probate court jurisdiction were held no bar to the bringing of plaintiff’s action in the appropriate forum, the circuit court. See also Miami Super Cold Co, Inc v Giffin Industries, Inc, 178 So 2d 604, 605 (Fla App, 1965). Presented with a "with prejudice” dismissal on a different set of facts, my decision might well be different. But in the case at bar, where plaintiff merely did what the court told her to do, where defendant was never put to the time and expense of defending against plaintiff’s substantive claims, and where plaintiff’s exhaustion of her administrative remedies meant that the only bar which the court saw to its assumption of jurisdiction had been removed, I would refuse to deny to plaintiff the day in court that she never had.

       The applicable portion provides as follows:
      "It is an unfair employment practice:
      (a) For any employer, because any individual is between the ages of Í8 and 60, or because of the sex of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, terms, conditions or privileges of employment. Any such refusal to hire or discrimination shall not be an unfair employment practice if based on law, regulation, the requirements of any federal or state training or employment program or on a bona fide occupational qualification. It shall not be an unfair employment practice to refuse to select an individual over the age of 35 because of his age for an apprenticeship or an on-the-job training program intended to have a duration of more than 4 months.” MCLA 423.303a; MSA 17.458(3a). It should be noted that at the time of the plaintiffs discharge she was 58 years of age.

       Since repealed by 1976 PA 453, effective March 31, 1977.
      That section provided that the commission is empowered:
      "To hold hearings, administer oaths, issue preliminary notices to witnesses to appear, compel through court authorization the attendance of witnesses and the production for examination of any books, papers or other records relating to matters under investigation or in question before the commission, take the testimony of any person under oath, and issue appropriate orders. The commission may make rules as to the issuance by individual commissioners of preliminary notices to appear.”
      We construe the term "appropriate orders” to include any monetary recompense to which a complainant may be entitled as a result of the unfair employment practice. Our conclusion is aided in substantial part from insight provided by § 605 of the new Michigan Civil Rights Act, which delineates the permissible scope of commission orders. That section states in pertinent part:
      "(2) Action ordered under this section may include, but is not limited to: * * * (i) Payment to the complainant of damages for an injury or loss caused by a violation of this act, including a reasonable attorney’s fee.” MCLA 37.2605(2)(i); MSA 3.548(605)(2)(i). Additionally, our Supreme Court has held that jurisdiction of actions for violations of the act rests concurrently with the commission and circuit courts and that civil damage remedies may be pursued in the courts "in addition to the remedial machinery provided by statute”. Pompey v General Motors Corp, 385 Mich 537, 560; 189 NW2d 243, 255 (1971).

       Notwithstanding the statutory term "tried de novo”, this provision has been held to limit review by the circuit courts to an appeal in the nature of certiorari of the record developed from the commission’s proceedings. Accordingly, the circuit court’s review is limited to ascertaining if the commission’s determination is based upon legal error or arbitrary action. Ross v Taylor Township School Board, 377 Mich 15; 138 NW2d 402 (1965), Lesniak v Fair Employment Practices Commission, 364 Mich 495, 505-506; 111 NW2d 790, 796 (1961).

       We recognize that the decision in Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 (1971), permitted maintenance of a circuit court action subsequent to an unappealed commission order of dismissal. However, that case is distinguishable from the facts in the case at bar. In Pompey the commission’s order dismissed the action because commenced after the statute of limitations had expired. Such dismissals are not on the merits for res judicata purposes, since the running of the statute of limitations merely bars access to the forum and is not a determination of the merits of the claim. See Malesev v Garavaglia, 12 Mich App 282; 162 NW2d 844 (1968).
      Further, where two or more forums have concurrent jurisdiction over the subject matter of a controversy, a judgment by one forum is conclusive as to all other forums with concurrent jurisdiction. Theisen v City of Dearborn, 5 Mich App 607; 147 NW2d 720 (1967), remanded on other grounds, 380 Mich 621; 158 NW2d 483 (1968).

       Repealed by 1976 PA 453, § 804. The provisions of the FEPA have been incorporated into the new Michigan Civil Rights Act, MCLA 37.2101 et seq.; MSA 3.548(101) et seq., effective March 31,1977.

       Now MCLA 37.2102; MSA 3.548(102). The Michigan Civil Rights Act specifically allows a civil action in circuit court for violation of its provisions. MCLA 37.2801; MSA 3.548(801). It also provides in MCLA 37.2803; MSA 3.548(803), "This act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state.” The Court in Pompey v General Motors Corporation, infra, based its decision largely on a similar provision in Const 1963, art 5, § 29. Both the FEPA and the Michigan Civil Rights Act forbid discrimination on the basis of age.

       Accelerated judgment, not summary judgment, is the proper ground for disposing of a case on the basis of failure to exhaust administrative remedies. See Baker v Detroit, 73 Mich App 67, 71; 250 NW2d 543 (1976).

      "20. Of course, if the only available forum has denied relief for lack of jurisdiction of the subject matter, the question is res judicata, even though the judgment is erroneous”. (Emphasis added; footnotes 17-19 omitted.)


source: Caselaw Access Project

author: D. E. Holbrook, J.

license: Public Domain

text:
    PEOPLE v JESSE SMITH
    1. Criminal Law — Discovery—Exclusion of Discovery — Court Rules.
    The application of discovery rules is expressly excluded in criminal cases by court rule (GCR 1963, 785.1[2]).
    2. Criminal Law — Discovery—Judge’s Discretion — Burden of Showing Specific Facts — Fishing Expedition.
    Discovery will be ordered in a criminal case, when, in the sound discretion of the trial judge, the thing to be inspected is admissible in evidence and a failure of justice may result from its suppression; the burden of showing the trial court facts indicating that such information is necessary to a preparation of its defense and in the interests of a fair trial, and not simply a part of a fishing expedition, rests upon the moving party.
    3. Criminal Law — Discovery—Judge’s Discretion — Opportunity of Cross-Examination.
    Generally, a trial court’s denial of criminal discovery is not reversible error if the defendant is afforded full opportunity of cross-examination.
    References for Points in Headnotes

       23 Am Jur 2d, Deposition and Discovery § 307 et. seq.

       23 Am Jur 2d, Depositions and Discovery §§ 314-324.

       23 Am Jur 2d, Depositions and Discovery §§ 308, 313.

       40 Am Jur 2d, Homicide §§ 470-472, 479.
    Homicide: presumption of deliberation or premeditation from the circumstances attending the killing. 92 ALR2d 1435.

       40 Am Jur 2d, Homicide §§ 263-269.
    Inference of malice or intent to kill where killing is by blow without weapon. 22 ALR2d 854.
    Homicide: presumption of deliberation or premeditation from the fact of killing. 86 ALR2d 611.
    Homicide: presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.

       30 Am Jur 2d, Evidence §§ 1080-1088.
    Credibility of witness giving uncontradicted testimony as matter for court or jury. 62 ALR2d 1191.

      4. Homicide — Degree of Guilt — Questions of Fact.
    A determination of the degree of guilt of one accused of homicide is a fact question for the trier of fact under established principles: (1) premeditation can be reasonably inferred from the circumstances surrounding the killing, (2) a defendant may not be found guilty of first-degree murder if he did not have an opportunity to subject the nature of his response to a second look or reflection, i.e., one cannot instantaneously premeditate a murder, (3) a sufficient time lapse to provide an opportunity for a "second look” may be merely seconds, or minutes, or hours, or more, dependent on the totality of the circumstances surrounding the killing, and (4) where it is factually clear that there is no evidence of premeditation, the trier of fact may not consider a charge of first-degree murder.
    5. Homicide — First-Degree Murder — Premeditation—Circumstances — Inferences.
    Premeditation can be inferred from various kinds of evidence, such as the prior relationships between the parties, whether the murder weapon had been acquired or positioned in preparation for the homicide, the immediate circumstances of the killing, and the defendant’s post-homicide conduct.
    6. Jury — Witnesses—Evidence—-Weight.
    A jury is not obligated to believe a witness’s testimony in toto, they may give whatever weight to any particular testimony they desire.
    7. Criminal Law — Evidence—First-Degree Murder — Premeditation — Proof of Guilt — Reasonable Doubt — Jury—Verdict of Guilty.
    A jury’s verdict of guilty of first-degree murder should not be disturbed where there was sufficient evidence on the homicide and also evidence to allow a reasonable man to infer premeditation beyond a reasonable doubt.
    Appeal from Oakland, Frederick C. Ziem, J.
    Submitted January 3, 1978, at Lansing.
    (Docket No. 31393.)
    Decided February 6, 1978.
    Jesse R. Smith was convicted of first-degree murder. Defendant appeals. Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson,
      Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and James L. McCarthy, Assistant Appellate Counsel, for the people.

      Monash & Moss, P. C., for defendant on appeal.
    Before: V. J. Brennan, P. J., and D. E. Holbrook and R. B. Martin, JJ.

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

   D. E. Holbrook, J.

Defendant was charged with open murder in the homicide of one Freelin Miller, contrary to MCLA 750.316; MSA 28.548. The homicide was the result of a shooting that took place in an automobile in Oakland County on November 27, 1975. On August 6, 1976, a jury found defendant guilty of first-degree murder and he was subsequently sentenced to life imprisonment. On appeal defendant raises two issues.

Because of its bearing on the issues raised in this appeal, an extended recitation of the facts is necessary.

Oliver Honchel and Freelin Miller were serving time for manslaughter at a prison parole camp. The two men were very good friends and on Thanksgiving Day, November 27, 1975, they began drinking some vodka that had been smuggled into the prison camp. They started drinking around 7 a.m. and by 2 p.m. had consumed two pints of vodka. On the spur of the moment, they decided to take a camp truck and escape from the prison camp.

They drove to Detroit where they abandoned the vehicle and went to a bar in order to call Oliver’s brother Calvin. Calvin was home watching a football game when he received his brother’s call around 4 or 5 p.m. Oliver told him that he and a friend had run away from the prison camp and wanted Calvin to help them. While waiting for Calvin to pick them up, Oliver and Freelin had a drink and when Calvin arrived, the three of them had a couple more drinks.

Oliver and Freelin needed some money so Calvin agreed to drive them to Pontiac where Freelin could get some money. However, Calvin did not have enough money for gas so he went to see Jesse Smith, a very good friend of his, in order to inquire if he could borrow some money. Calvin explained to Jesse that Oliver and Freelin had escaped and they needed some money for gasoline. The men sat down in Jesse’s apartment and had a few drinks. Because Oliver and Freelin were still wearing their prison clothes, Jesse gave them a change of clothing.

Calvin asked Jesse if he wanted to go along with them on the ride to Pontiac. Both Jesse and his wife decided to go. Calvin’s Pinto was too small for the group so they took Jesse’s Cadillac. As they were leaving the apartment, Calvin asked Jesse if he was carrying his gun. Jesse said, "no”, and then told Calvin that the gun was in his bedroom. Calvin went into Jesse’s bedroom and, taking the gun, placed it in the waistband of his pants. Calvin testified that he wanted the gun for security in case they were stopped by the police. Everyone then got into the car and they left for Pontiac. Calvin drove because Jesse did not have a driver’s license.

Before entering the 1-75 freeway, they stopped and Jesse’s wife bought a six-pack of beer. After they left the store, Jesse’s wife sat between Calvin and Jesse in the front seat and Freelin sat behind Calvin in the back seat and Oliver sat behind Jesse in the back seat. As they drove down 1-75, Calvin testified that Freelin began to get shaky. By this he meant that Freelin was worried about who was going to take responsibility for stealing the vehicle that they used in their escape. Freelin did not know whether he or Oliver should take the blame. Calvin stated that listening to Freelin and Oliver argue made him very nervous.

Calvin pulled the car off the freeway at Adams Road so the men could get out of the car and relieve themselves. Jesse and Calvin stood on the driver’s side toward the back of the car and Oliver and Freelin stood on the other side of the car. They were outside the car for approximately five minutes.

Calvin testified that as he and Jesse stood there, Calvin told Jesse that he felt like killing Freelin. Calvin stated that he was thinking out loud and made the statement because Freelin was getting on his nerves. Calvin testified that Jesse told him not to worry about it and Calvin thought that Jesse was merely trying to calm him down. Calvin said that he did not actually intend to kill Freelin.

The men got back into the car and sat in the same places that they had been sitting in previously. Calvin testified that he proceeded to turn the car around and as he was doing this, Jesse reached around his wife and motioned for the gun. Calvin stated that he raised up and Jesse took the gun from Calvin’s waistband. Calvin testified that within one or two seconds from the time Jesse took the gun from his waistband, he heard an explosion. At this time Calvin looked over at Jesse and saw the gun in Jesse’s hand pointed toward the floor of the car. Calvin stopped the car and Jesse requested that he help him get the body out of the back seat. Jesse opened the car door and dragged Freelin out of the car and into a ditch where he was left. Calvin stated at trial that he thought Jesse took the gun from him to prevent Calvin from using it.

Oliver testified that because of all the liquor he had drunk, he was unable to remember leaving Jesse’s apartment, riding in the car or relieving himself. All he remembered was hearing an explosion and feeling Freelin fall on his knee. The next thing he recalled was waking up the following morning.

Jesse’s wife testified for the defense and stated that after the men relieved themselves they got back into the car and Calvin drove a short distance and stopped. She stated that she was pushed forward and heard a shot. She thought the shot occurred within one or two minutes after the car came to a stop. She also testified that it was a matter of seconds between when she went forward and when she heard the shot. Immediately after the shot was fired she looked in the back seat. She then looked at her husband and saw that he had a gun in his hand. Contrary to Calvin’s testimony, she stated that her husband did not reach in front of her and that nothing passed between Calvin and her husband. She testified that as to any motive her husband had to shoot Freelin was, “the only possible reason was to protect myself, and the rest, because he was afraid of something happening to me”.

After the body was dumped into the ditch, Calvin drove the group to Detroit where they stopped at three different bars. Later, Jesse’s wife drove Calvin and Oliver back to Calvin’s car. She testified that Calvin told her that she better not say anything or "he would dig a new well”.

Jesse Smith took the stand in his own behalf and testified that as they were relieving themselves, Calvin said, " 'We got to get rid of this guy.’ ” Jesse said, " 'We can leave him at the bar.’ ” Calvin said, " 'No, we got to get rid of him.’ ” After the men relieved themselves, Jesse said that Calvin drove down the road about 200 feet and pulled into a driveway where he then backed out onto the road and started to drive down it. Jesse said that the headlights went out on the car and he turned toward Calvin and noticed that Calvin was stopping the car. He also saw that Calvin was turning toward the back seat with a gun in his hand. Jesse testified that he grabbed his wife and pushed her down and with his other hand went to grab the gun. Jesse stated that the gun went off just as he was about to grab it and the gun ended up in his hand.

The next day Jesse was arrested and the gun was seized from him. The arresting officer stated that Jesse pulled the gun on him, but Jesse denied this and said the policeman was lying. When the police questioned Jesse about whether or not he had seen Calvin within the last few weeks, Jesse stated that he had not. Jesse admitted at trial that he had lied to the officers when they questioned him because Calvin was such a good friend and he wanted to protect him.

The next day after the homicide Calvin left for California where he was arrested and extradited back to Michigan. Calvin’s murder charge was reduced to harbouring a fugitive in return for his testimony at trial.

On appeal, defendant brings two allegations of error. We deal with them in order.

The first issue raised by defendant is that the trial court abused its discretion in denying the defendant’s motion for discovery of a pretrial statement made to the prosecutor by defendant’s wife, a res gestae witness. In support of this issue, defendant contends that the trial court’s refusal to order discovery of the statement resulted in a failure of justice because defendant needed to review the statement in order to determine whether to invoke his privilege and bar defendant’s wife from testifying.

GCR 1963, 785.1(2) expressly excludes the application of discovery rules in criminal cases. In People v Maranian, 359 Mich 361, 368; 102 NW2d 568 (1960), the Michigan Supreme Court stated the rule of discovery in criminal cases as follows:

"Discovery will be ordered in all criminal cases, when, in the sound discretion of the trial judge, the thing to be inspected is admissible in evidence and a failure of justice may result from its suppression. The burden of showing the trial court facts indicating that such information is necessary to a preparation of its defense and in the interests of a fair trial, and not simply a part of a fishing expedition, rests upon the moving party.”

Defendant, in his motion for discovery, stated:

"3. That the Prosecution has indicated that there are three (3) potential Res Gestae Witnesses, including the defendant’s wife, who could possibly give testimony at the time of trial and further, the defendant believes that said Witnesses have given statements to the investigating law enforcement agency prior to this time.
"4. That the defendant desires to obtain copies of any handwritten, typed or taped statements obtained during the investigation of this matter.”

The Michigan Supreme Court has stated that the defense carries the burden of showing to the trial court speciñc facts " 'indicating that such information is necessary to a preparation of its defense and in the interests of a fair trial, and not simply a part of a fishing expedition’. Maranian, supra, at 368.” People v Nkomo, 75 Mich App 71, 76; 254 NW2d 657 (1977). Defendant in his motion for discovery did not set forth any specific facts or information which it expected to glean from the statement.

In addition, this Court does not feel that the denial by the trial court of defendant’s motion resulted in prejudicial error. Generally, a trial court’s denial of criminal discovery is not reversible if, as in the instant case, defendant is afforded full opportunity of cross-examination. People v Bell, 74 Mich App 270, 275; 253 NW2d 726 (1977). During the trial of the case at bar, defense counsel was given a copy of defendant’s wife’s statement to police. The judge granted a recess to allow defense counsel an opportunity to study and review the statement. Defense counsel then used the statement in his cross-examination of the police officer who had taken the statement from defendant’s wife. Defense counsel also used the statement in his direct and redirect examination of defendant’s wife. Defendant’s argument that he needed the statement in order to decide whether or not to bar his wife from testifying is without merit in light of the fact that defendant called his wife to testify after having the opportunity to review the statement.

After an examination of the facts, we hold that the trial judge did not abuse his discretion in denying defendant’s pretrial discovery motion.

Next, defendant contends that the trial court record lacks sufficient evidence of a "second look” from which premeditation and deliberation could have been properly inferred. In dealing with this issue, we turn to our opinion in People v Meier, 47 Mich App 179, 191-192; 209 NW2d 311 (1973).

"Our own answer to the question of the appropriate rule to follow as to what constitutes premeditation in a first-degree murder case is not a definition. Rather, it is a reaffirmation of the role of the trier of fact in deciding the degree of guilt of an accused under the following established principles:

"(1) Premeditation can be reasonably inferred from the circumstances surrounding the killing;
"(2) A defendant may not be found guilty of first-degree murder if he did not have an opportunity to subject the nature of his response to a second look or refelction, i.e., one cannot instantaneously premeditate a murder;
"(3) A sufficient time lapse to provide an opportunity for a 'second look’ may be merely seconds, or minutes, or hours, or more, dependent on the totality of the circumstances surrounding the killing;
"(4) Where it is factually clear that there is no evidence of premeditation, the trier of fact may not consider a charge of first-degree murder.

Attempting to further clarify this 'definition’ in the past has, we believe, led to an invasion by the appellate courts into areas rightfully left to the trial court in its fact-finding processes.” (Emphasis in original.)

See also, People v Rappuhn, 55 Mich App 52, 58-59; 222 NW2d 30 (1974), People v Berthiaume, 59 Mich App 451, 456; 229 NW2d 497 (1975), People v Page, 63 Mich App 177, 181; 234 NW2d 440 (1975), lv den 399 Mich 850 (1977).

Premeditation can be inferred from various kinds of evidence, such as the prior relationships between the parties, whether the murder weapon had been acquired or positioned in preparation for the homicide, the immediate circumstances of the killing, and the defendant’s post-homicide conduct. People v Morrin, 31 Mich App 301, 331-332; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971), People v Osier, 67 Mich App 490, 497; 241 NW2d 260 (1976).

Keeping the foregoing principles in mind, we review some of the evidence. The defendant had his own exculpatory explanation for this entire chain of circumstances; but a jury is not obligated to believe a witness’s testimony in ioio. Berthiaume, supra, at 457. "[TJhey may give whatever weight to any particular testimony they desire.” People v Renno, 392 Mich 45, 60; 219 NW2d 422 (1974). The jury in this case chose to disbelieve defendant’s claim that the gun went off before he was able to grab Calvin Honchel’s hand.

Calvin Honchel testified that as he and the defendant were relieving themselves along the roadside, he told defendant that he felt like killing Freelin Miller because he thought Freelin might implicate him in the escape. The defendant told Calvin "not to worry about it”. Approximately five minutes after defendant told Miller "not to worry about it”, Calvin testified that the defendant motioned to him that he wanted the gun and then reached into Calvin’s waistband and removed the gun. Within one or two seconds, Calvin heard the gun discharge and saw defendant with the gun in his hand. The prosecutor argues that there was ample time between the defendant’s statement "not to worry about it” and the shooting for defendant to have taken a "second look”. We agree. The testimony of defendant’s wife also indicates that defendant had time for a "second look”. Her testimony that nothing passed between Jesse and Calvin points to the fact that defendant had the gun prior to the car coming to a stop. She stated that the shot was fired within one or two minutes after the car came to a stop. This one or two minutes was sufficient time in which to take a "second look”. There was sufficient time lapse where defendant had the opportunity for that cool, dispassionate reflection which is premeditation. Berthiaume, supra, at 460.

Additionally, defendant’s post-homicide conduct indicates a premeditated plan. Immediately after the shooting, defendant got out of the car and told Calvin to help him get rid of the body. Defendant dragged Freelin out of the car and into a ditch where he was left. They then fled to Detroit.

Also, this Court notes that the murder weapon was a pistol and not a "tool of defendant’s trade” as in Morrin. The pistol was owned by defendant, although Calvin had been carrying it in the waistband of his pants. Earlier, Calvin had asked defendant if he had his gun and defendant said that it was in the bedroom. Calvin went into the bedroom, got the gun, put it in his waistband and joined the others in the car. Calvin testified that defendant motioned for the gun and then reached into Calvin’s waistband and removed it. Shortly thereafter, the gun was discharged and Freelin Miller was no longer able to "squeal” on anyone.

After a review of the evidence, we are persuaded that sufficient evidence was produced to support a reasonable inference of premeditation and that, therefore, the jury’s finding of this fact should not be disturbed. There was sufficient evidence to allow a reasonable man to infer premeditation beyond a reasonable doubt. People v Atley, 392 Mich 298; 220 NW2d 465 (1974).

Affirmed.

       At the time of this escape Oliver was serving a sentence for manslaughter wherein he bludgeoned his brother Orville to death in 1967 and had also served time for attempted jail break, armed robbery, and breaking and entering.

       Calvin had two previous felonies, second-degree murder and aggravated assault for shooting one of his brothers in the leg.

       He had prior convictions for possession of a firearm and larceny from a person.


author: T. M. Burns, J.

text:
    PEOPLE v WALKER
    1. Criminal Law — Criminal Sexual Conduct — Evidence—Admissibility — Statutes.
    The criminal sexual conduct statute by its own terms excludes evidence of past sexual experiences in prosecutions for criminal sexual conduct and assault with intent to commit criminal sexual conduct; the statute and the exclusion rules do not apply to a charge of breaking and entering an occupied dwelling with an intent to commit a felony, even though the felony attempted is criminal sexual conduct in the third degree (MCLA 750.520b, 750.520g; MSA 28.788[2], 28.788[7]).
    2. Homicide — Reputation of Deceased — Self-Defense.
    A decedent’s reputation for ferocity, brutality and the like, if known by the defendant, may be shown in a prosecution for homicide to support his claim that he acted in self-defense with the reasonable belief that he was in imminent danger of death or great bodily harm.
    3. Rape — Prosecuting Witness — Reputation For Chastity — Evidence — Admissibility.
    A complaining witness’s reputation for lack of chastity might be admissible in a rape prosecution if the defendant can show that he knew of that reputation and the evidence is necessary to support the defendant’s claim that he had no intent to force himself on her.

      References for Points in Headnotes
    [1, 4, 6-8] 29 Am Jur 2d, Evidence § 321.
    Admissibility,in prosecution for sexual offense, of evidence of other similar offenses. 77 ALR2d 841.

       40 Am Jur 2d, Homicide §§ 301-309.
    Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide. 1 ALR3d 571.

       65 Am Jur 2d, Rape §§ 82-85.
    Admissibility of prosecution evidence on issue of consent, that rape victim was a virgin, absent defense attack on her chastity. 35 ALR2d 1452.
    Mistake or lack of information as to victim’s chastity as defense to statutory rape. 44 ALR3d 1434.

       75 Am Jur 2d, Trial §§ 651, 652.

       76 Am Jur 2d, Trial § 1160.
    Inconsistency of criminal verdict with verdict on another indictment or information tried at same time. 16 ALR3d 866.
    Inconsistency of criminal verdict as between different counts of indictment or information. 18 ALR3d 259.

      4. Criminal Law — Criminal Sexual Conduct — Evidence—State of Mind.
    Evidence of the complainant’s reputation for chastity is admissible as bearing on a defendant’s state of mind at the time of a breaking and entering where the prosecution is solely for breaking and entering with intent to commit criminal sexual conduct in the third degree.
    5. Evidence — Purpose—Admissibility—Use of Evidence — -Instructions to Jury — -Exclusion of Evidence.
    The general practice where evidence is admissible for one purpose and inadmissible for another is to admit the evidence subject to a limiting instruction on use unless the legitimate use of the evidence is so slight compared to the possibility of jury misuse of the evidence that the trial court feels compelled to exclude the evidence entirely.
    6. Appeal and Error — Criminal Law — Criminal Sexual Conduct— Wrongful Exclusion of Evidence — Remand—Useless New Trial.
    The appropriate remedy on an appeal from a conviction of breaking and entering an occupied dwelling with intent to commit criminal sexual conduct in the third degree where the trial court wrongfully barred the admission of reputation evidence is a remand to the trial court to allow the defendant an opportunity to present evidence on the questions of the complainant’s reputation for chastity, and that the defendant knew of this reputation, rather than order what may be a useless new trial.
    7. Criminal Law — Criminal Sexual Conduct — Evidence—Cross-Examination — Acts of Intercourse — Third Persons.
    Cross-examination of the complaining witness in a trial for criminal sexual conduct as to specific acts of intercourse with third persons is not relevant to show bias on the part of the complainant in bringing the charge.
    8. Criminal Law — Defendant Testifying — Prior Convictions — Impeachment — Judge’s Discretion.
    A prior conviction of assault with intent to take indecent liberties was not so closely related to a charge of breaking and entering an occupied dwelling with intent to commit criminal sexual conduct as to require its exclusion for impeachment purposes from a trial on the latter charge.
    9. Criminal Law — Indictment and Information — Inconsistent Verdicts.
    Verdicts on two charges tried together will not be held inconsistent if they can be explained on any rational basis.
    Appeal from Lapeer, Martin E. Clements, J.
    Submitted November 14, 1977, at Detroit.
    (Docket No. 77-107.)
    Decided February 6, 1978.
    Louis N. Walker was convicted of breaking and entering an occupied dwelling with intent to commit criminal sexual conduct in the third degree. Defendant appeals.
    Remanded with instructions.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward B. Meth, Prosecuting Attorney, for the people.

      Robert W. Thomas, for defendant on appeal.
    Before: Bronson, P. J., and Allen and T. M. Burns, JJ.
   T. M. Burns, J.

defendant was charged in a two-count information with criminal sexual conduct in the third degree, MCLA 750.520d; MSA 28.788(4), and breaking and entering an occupied dwelling with an intent to commit criminal sexual conduct in the third degree, MCLA 750.110; MSA 28.305. After extensive deliberation, the jury acquitted defendant on count one, the criminal sexual conduct charge, and convicted him of the breaking and entering charge. After his motion for acquittal notwithstanding the verdict was denied, defendant was sentenced to serve 6 to 15 years in prison.

I

Before the trial in this case, defense counsel filed a motion in limine to allow cross-examination of the complainant on her past sexual experiences. At the argument on the motion, defense counsel stated he wished to show, among other things, the victim’s reputation for chastity as bearing on defendant’s state of mind on the breaking and entering charge. The trial court found the section of the statute prohibiting inquiry into the complainant’s sexual past, except in limited circumstances, applicable to this prosecution and a bar to the admission of reputation evidence. Defendant claims on appeal that this ruling was reversibly erroneous.

Before examining defendant’s claim, it may be wise to identify the issues that are not involved. This case does not involve a claim that MCLA 750.520j; MSA 28.788(10) is unconstitutional because it bars relevant evidence on the issue of the complainant’s consent (rebutting the state’s case) or evidence relevant to the complainant’s credibility or veracity. See, People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977); People v Dawsey, 76 Mich App 741; 257 NW2d 236 (1977); People v Patterson, 79 Mich App 393; 262 NW2d 835 (1977). What defendant does claim is that the circuit court incorrectly applied the statute to exclude evidence relevant to the issue of defendant’s intent on the breaking and entering charge, i.eto show that he did not have the felonious intent claimed by the prosecutor.

The statute by its own terms excludes evidence only for prosecution under §§ 520b to 520g (MCLA 750.520b-520g; MSA 28.788[2]-28.788[7]). It does not apply to the breaking and entering charge. Two questions are therefore presented: (1) would the proposed evidence have been admissible if only a breaking and entering had been charged, and (2) is it admissible where defendant is also charged with an offense within the prohibitory section? These questions would not arise if the prosecutor had proceeded only on the first count — the evidence would be inadmissible.

What defense counsel sought to do was use one person’s reputation for chastity (the victim’s) to prove or argue that another person’s conduct (defendant’s entry of the house) was not done with the criminal intent charged. That distinguishes the present case from those in which it is stated that the victim’s reputation may be shown to prove her conduct (consent) in a particular instance. People v Ryno, 148 Mich 137; 111 NW 740 (1907).

In this regard, the case appears to be unique. However, there are analogous situations. In a homicide prosecution, the deceased’s reputation for ferocity, brutality and the like may be shown if known by the defendant in support of defendant’s claim that he acted in self-defense, that is, that, he had a reasonable belief that he was in imminent danger of death or great bodily harm. People v Walters, 223 Mich 676, 680; 194 NW 538 (1923).

Similar reasoning would support defendant’s claim here. If defendant knew the victim’s reputation for chastity was bad, it would make his argument that he did not intend to force himself on her more plausible than if this evidence were not admitted. See Michigan Proposed Rules of Evidence, Rule 401, 399 Mich 969.

Had this prosecution been solely for breaking and entering with intent to commit criminal sexual conduct in the third degree, evidence of the complainant’s reputation for chastity would have been admissible as bearing on defendant’s state of mind at the time of the breaking and entering.

This raises the second question noted above, what effect does the fact that defendant was also charged with criminal sexual conduct in the third degree, under which the evidence would not have been admissible, have on the question of admissibility? According to McCormick, the general practice where evidence is admissible for one purpose and inadmissible for another is to admit the evidence subject to a limiting instruction on use unless the legitimate use of the evidence is so slight compared to the possibility of jury misuse of the evidence that the trial court feels compelled to exclude the evidence entirely. McCormick, Evidence (2d ed), § 59, pp 135-136. This evidence could provide a rebuttal for the state’s claim of criminal intent and would have been admissible for that purpose.

The trial court could have admitted the evidence subject to a limiting instruction in the present case. However, rather than order what may be a useless new trial, cf. People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), the appropriate remedy is a remand to the trial court to allow defendant to present evidence on the question of the complainant’s reputation for chastity and that defendant knew of this reputation. If her reputation was not bad, or if defendant did not have knowledge of this reputation, no reversible error is presented.

II

Defendant also claims that he should have been allowed to cross-examine the complainant as to specific acts of intercourse with third persons to show bias on the part of the witness. It does not appear that evidence of specific acts with third persons would be especially relevant to showing the complainant’s motive in bringing the charges in the present case. This argument is rejected.

III

Defendant next contends that the trial court abused its discretion in refusing to grant his motion in limine to suppress reference to his 1972 assault with intent to take indecent liberties conviction should he take the stand. A 15-year-old conviction for breaking and entering with intent to commit larceny was suppressed.

This contention is not well taken. Although assault with intent to take indecent liberties may be substantially the same conduct as criminal sexual conduct in the third degree, defendant was acquitted’ of that charge. The prior conviction is not so closely related to the breaking and entering charge on which defendant was convicted, as to require its exclusion for impeachment purposes. See, People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).

IV

Defendant finally contends that the jury’s verdict was fatally inconsistent. In ruling on defendant’s motion for judgment of acquittal, the trial court stated:

"To me the main distinction with Count One and Count Two is a matter of time. In Count One the People would have to prove certain things beyond a reasonable doubt occurred, in Count Two, breaking and entering charge, that they did find the Defendant guilty of, I find that need not — the People need not prove there was sexual penetration, but that the Defendant at the time of the breaking and entering had that requisite intent. I don’t feel that the charges against the Defendant are mutually exclusive in this case, because the time factor, I do find sufficient facts during the course of the trial for which the jury could indeed find the Defendant guilty.”

This response provides the rational explanation required to uphold the verdict. People v Phillips, 43 Mich App 581; 204 NW2d 250 (1972), People v Willie Johnson, 58 Mich App 165; 227 NW2d 272 (1975), lv den, 394 Mich 755 (1975), cert den, 423 US 849; 96 S Ct 91; 46 L Ed 2d 72 (1975), People v Goodchild, 68 Mich App 226; 242 NW2d 465 (1976), lv den, 397 Mich 830 (1976).

Remanded for proceedings consistent with part one of this opinion. We do not retain jurisdiction.

       MCLA 750.520j; MSA 28.788(10) provides: "(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
      "(a) Evidence of the victim’s past sexual conduct with the actor.
      "(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
      "(2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).”

       Defendant did not testify at trial. However, a statement made by him shortly after his arrest was read to the jury. In this statement, defendant claimed to have had intercourse with the complainant on prior occasions and that the acts out of which the prosecution arose were consensual.

       This issue is not made moot by defendant’s failure to testify at trial. People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975).


author: D. F. Walsh, J.

text:
    DEPARTMENT OF SOCIAL SERVICES v ARDEN

      1. Administrative Law — Continuance—Withholding Final Determinations — Final Orders — Res Judicata.
    An order by the Director of the Michigan Department of Social Services constituted a continuance of an administrative action brought by the department to determine whether the defendants had received Medicaid payments for services not covered by the program where it withheld a final determination on the amount of overpayment pending the development of a reliable method for calculating that amount after which the defendants would have the right to challenge the department’s new statistical method; such an order cannot be considered a final order for purposes of res judicata since it specifically reserved resolution of the amount due pending a redetermination.
    2. Administrative Law — Continuance—General Rule — Abuse of Discretion.
    A general rule regarding the grant of a continuance by an administrative agency is the same as that applicable to judicial proceedings; its decision will not be disturbed absent an abuse of discretion.
    3. Administrative Law — Administrative Procedures Act — Subpoenas — Legislative Intention — Department of Social Services —General Subpoena Authority — The Social Welfare Act— Statutes.
    The purpose of the provisions of the Administrative Procedures Act regarding subpoenas is to grant parties in administrative proceedings access to the subpoena power necessary to permit them to procure and present all favorable relevant evidence; this legislative intention does not require the restriction of the general subpoena authority of the Michigan Department of Social Services granted under a provision of The Social Welfare Act (MCLA 24.273, 24.280, 400.8; MSA 3.560[173], 3.560[180], 16.408).

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law § 499 et seq.

       2 Am Jur 2d, Administrative Law § 426.

       1 Am Jur 2d, Administrative Law §§ 86, 89-91.

      4. Administrative Law — Administrative Agencies — General Investigative Subpoena Power — Criminal Adjudicatory Proceedings — Same Subject Matter.
    The general investigative subpoena power of an administrative agency is not restricted because of a concurrent adjudicatory proceeding concerning the same subject matter.
    Appeal from Wayne, Victor J. Baum, J.
    Submitted November 9, 1977, at Detroit.
    (Docket No. 77-260.)
    Decided February 6, 1978.
    Complaint by the Michigan Department of Social Services and John T. Dempsey, Director of the Michigan Department of Social Services, against Bernard Arden, D. O., and Arden Clinic, P. C., for an order that defendants comply with a subpoena duces tecum issued by the director and for a subpoena to be issued by the circuit court for inspection of certain of defendants’ records. Judgment for plaintiffs. Defendants appeal.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone, Thomas R. Wheeker, and Robert N. Rosenberg, Assistants Attorney General, for plaintiffs.

      Frimet, Goren & Bellamy, P. C., for defendants.
    Before: D. C. Riley, P. J., and D. F. Walsh and A. C. Miller, JJ.

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

   D. F. Walsh, J.

The defendants appeal from a circuit court order requiring defendant Bernard Arden, D.O., to comply with a subpoena duces tecum issued by the Director of the Michigan Department of Social Services pursuant to MCLA 400.8; MSA 16.408.

On September 8 and 9, 1975, an administrative hearing was conducted to determine whether the defendants had received Medicaid payments for services not covered by the program and, if so, the amount of those overpayments. On January 8, 1976, the director issued the following decision and order:

Decision
"The Opinion of the Administrative Law Judge and Recommendations in the above entitled matter have been read and considered, together with the entire record of the hearing. Said Opinion is attached hereto and, except for recommendation (3), is made a part hereof. It is my decision as follows: (1) the Department properly determined that the claimant billed and received payment from Medicaid for services not covered under the Program; (2) that the Department improperly determined the amount of the refund due; and (3) the Department will develop statistically valid and reliable sampling procedures and re-audit claimant’s Medicaid account in order to determine the amount of the refund due.”
Order
"The actions of the Department as outlined in the attached Opinion of the Administrative Law Judge are upheld in part and reversed in part. Subject to any required approval by the Circuit Court retaining jurisdiction in the matter, it is ordered that the Department’s refund procedures currently in effect against the claimant be rescinded, that a statistically valid and reliable sampling procedure be developed, that claimant’s Medicaid account be re-audited, and that all monies previously withheld under the Department’s gross adjustment procedure be paid over to the claimant.”

The defendants did not appeal that order.

Pursuant to the above order, the department developed another sampling procedure and undertook a re-audit of the defendants’ Medicaid account. The department then sought access to a randomly selected group of 50 of the defendants’ patients’ records. These records included, but were not limited to, notations regarding care rendered during the time period in question at the September hearing. Upon defendants’ refusal of the department’s request the director issued a subpoena for those records. It is from the court order enforcing that subpoena that the defendants appeal.

Defendants challenge the propriety of the subpoena on several grounds which rest on the premise that once the department failed to prove the amount of overpayment at the evidentiary hearing it could not relitigate the issue at a subsequent hearing. It is this premise that we address first.

On its face the director’s order contemplates further action in the matter in that it looks toward a redetermination of the amount of overpayment after which the defendants would have the right to challenge the department’s new statistical method. We find that his action constituted a continuance of the case in that it withheld a final determination on the amount of overpayment pending the development of a reliable method for calculating that amount.

The right of an administrative agency to continue a hearing from time to time is well recognized. E.g., Kartman v Parratt, 535 F2d 450 (CA 8, 1976), Superior Oil Co v Foote, 214 Miss 857; 59 So 2d 85; 37 ALR2d 415 (1952). The general rule regarding the grant of a continuance by an administrative agency is the same as that applicable to judicial proceedings. 2 Am Jur 2d, Administrative Law, § 426, p 236. Its decision will not be disturbed absent an abuse of discretion. Compare Brown v Air Pollution Control Board, 37 Ill 2d 450; 227 NE2d 754; 33 ALR3d 222 (1967), with Superior Oil Co v Foote, supra. In the instant case the continuance was ordered for good cause; consequently, we find no abuse of discretion.

Given the nature of the order defendants’ argument that res judicata bars further hearing in this matter is unpersuasive. The cases cited in support of that argument involved final orders wherein a matter was definitely resolved by an agency. In the case at bar the order specifically reserved resolution of the amount due pending redetermination. For purposes of res judicata such an order cannot be considered a final determination.

The final issue is whether under these circumstances the director could properly issue the subpoena under the general departmental authority of MCLA 400.8; MSA 16.408. Defendants argue that if the director’s order was not final, the subpoena provisions of the Administrative Procedures Act are the exclusive source of an agency-subpoena.

We disagree.

The purpose of the cited Administrative Procedures Act provisions is to grant parties in administrative proceedings access to the subpoena power necessary to permit them to procure and present all favorable relevant evidence. See Indiana & Michigan Electric Co v Federal Power Commission, 224 F Supp 166 (ND Ind, 1963), Davis, Administrative Law Text (3d ed), § 8.05, p 200, 2 Am Jur 2d, Administrative Law, §§ 419-420, pp 230-232. That legislative intention does not require restriction of the agency’s general subpoena authority. In situations analogous to the case at bar it has been held that the general investigative subpoena power of an agency is not restricted because of a concurrent adjudicatory proceeding concerning the same subject matter. E.g., Federal Trade Commission v Waltham Watch Co, 169 F Supp 614 (SDNY, 1959).

The order enforcing the subpoena is affirmed. No costs, a public question.

        See, generally, Davis, Administrative Law of the Seventies, § 8.08, p 281 (1976); Davis, Administrative Law Text (3d ed), § 8.06, p 201.

        Senior Accountants, Analysts & Appraisers Association v Detroit, 399 Mich 449; 249 NW2d 121 (1976), Roman Cleanser Co v Murphy, 386 Mich 698; 194 NW2d 704 (1972).

       Even if the director’s order were to be construed as a final and binding order, MCLA 24.287(1); MSA 3.560(187)(1) empowers the agency to order a rehearing on its own motion. The limits of that power have not been addressed by any Michigan court, and we do not do so here other than to observe that res judicata has never been held to restrict such statutory authorization. See, 2 Am Jur 2d, Administrative Law, §§ 501, 522, 529, 531.

       "Sec. 8. Any member of the commission or the director may issue a subpoena requiring any person to appear and be examined with reference to any matter within the jurisdiction of the commission and within the scope of the inquiry or investigation being conducted by the said commission or director, and to produce any books, records or papers, pertinent to such inquiry. Any member of the commission, the director, or their duly authorized agents, may administer an oath to a witness in any pending matter. In case of disobedience of a subpoena, the commission or director may by petition invoke the aid of the circuit court of the county in which the witness resides, or the circuit court of the county in which the inquiry is being held, to require the attendance and testimony of witnesses and the production of books, papers and documents. Any such circuit court of the state, may, in case of contumacy or refusal to obey a subpoena, issue an order requiring such person to appear and to produce books, records, and papers if so ordered and give evidence touching the matter in question. Any failure to obey such order of the court may be punished by such court as a contempt thereof.”

       "Sec. 73. An agency authorized by statute to issue subpoenas, when a written request is made by a party in a contested case, shall issue subpoenas forthwith requiring the attendance and testimony of witnesses and the production of evidence including books, records, correspondence and documents in their possession or under their control. On written request, the agency shall revoke a subpoena if the evidence, the production of which is required, does not relate to a matter in issue, or if the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason sufficient in law the subpoena is invalid. Witness fees shall be paid to subpoenaed witnesses in accordance with section 2552 of Act No. 236 of the Public Acts of 1961, as amended, being section 600.2552 of the Compiled Laws of 1948. In case of refusal to comply with a subpoena, the party on whose behalf it was issued may file a petition, in the circuit court for Ingham county or for the county in which the agency hearing is held, for an order requiring compliance.” MCLA 24.273; MSA 3.560(173).
      "Sec 80. A presiding officer may:
      "(b) Sign and issue subpoenas in the name of the agency, requiring attendance and giving of testimony by witnesses and the production of books, papers and other documentary evidence.” MCLA 24.280; MSA 3.560(180).