author: P. C. Elliott, J.

text:
    DETROIT BOARD OF EDUCATION v PARKS ABOOD v DETROIT BOARD OF EDUCATION WARCZAK v DETROIT BOARD OF EDUCATION KYES v DETROIT BOARD OF EDUCATION
    Docket Nos. 46812, 78-3515, 78-3516, 78-3517.
    Submitted December 11, 1979, at Detroit.
    Decided June 3, 1980.
    Leave to appeal applied for.
    In 1969, Christine Warczak and others brought suit against the Detroit Board of Education (board), the Detroit Federation of Teachers (union) and others in the Wayne Circuit Court seeking a declaration that an agency shop clause in the collective bargaining agreement between the union and the board for the years 1969-1971 was contrary to the United States Constitution and the Constitution and laws of the State of Michigan. The agency shop clause required, as a condition of employment, that nonmembers of the union pay to the union an agency shop fee for the negotiation and administration of the contract in an amount equal to the dues paid by union members. The contract provided for dismissal for noncompliance. The Warczak suit alleged that a substantial part of the agency shop fees required of nonmembers were being used for "activities and programs which are economic, political, professional, scientific and religious” in purpose rather than collective bargaining. The court, Charles Kaufman, J., granted summary judgment in 1970 for defendants, holding that the agency shop clause was valid and did not contravene constitutional or statutory law. The Supreme Court vacated the judgment and remanded for further proceedings. 329 Mich 755 (1972).

      References for Points in Headnotes

       46 Am Jur 2d, Judgments § 406 et seq.

       46 Am Jur 2d, Judgments § 417.

       48A Am Jur 2d, Labor and Labor Relations §§ 1790,1791. 68 Am Jur 2d, Schools §§ 131, 168, 183.
    [4, 5, 7] 68 Am Jur 2d, Schools §§ 149,151.

       48A Am Jur 2d, Labor and Labor Relations § 1764 et seq.

       16A Am Jur 2d, Constitutional Law §§ 580, 804 et seq.

       16A Am Jur 2d, Constitutional Law §§ 583, 584. 63 Am Jur 2d, Public OfiScers and Employees § 209.
    Termination of public employment: right to hearing under due process clause of Fifth or Fourteenth Amendment — Supreme Court cases. 48 L Ed 2d 996.

       68 Am Jur 2d, Schools §§ 210, 212.

      In 1970, D. Louis Abood and others brought an action against the board, the union and certain individuals in the Wayne Circuit Court seeking to enjoin the enforcement of the agency shop clause. The Abood case was consolidated with the Warczak case on remand. The Legislature amended the public employment relations act (PERA) to specifically allow agency shop clauses in collective bargaining agreements with a public employer. Judge Kaufman granted summary judgment for defendants in 1973, restating his holding in the prior judgment in Warczak and holding that the PERA authorized agency shop clauses retroactively and prospectively. Plaintiffs in Warczak and Abood appealed. The Court of Appeals held that the PERA did not authorize agency shop clauses retroactively, that agency shop clauses were constitutional but that a nonmember employee could not be compelled to pay for non-collective-bargaining activities. The Court of Appeals also held that, inasmuch as plaintiffs had failed to list the objectionable activities with specificity, they failed to state a cause of action on that issue. The Michigan Supreme Court declined to review and the plaintiffs petitioned the United States Supreme Court for certiorari. The United States Supreme Court held that the agency shop clause is constitutional insofar as fees are used for collective bargaining purposes but unconstitutional to the extent it compels nonmembers to support other political and ideological activities of which they do not approve. The Court held that plaintiffs had adequately stated a cause of action as to the objectionable activities, vacated the Court of Appeals decision and remanded to the circuit court. Abood v Detroit Board of Education, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977).
    While the appeal was pending in the United States Supreme Court, Alberta M. Kyes and Harold L. Simons brought an action in the Wayne Circuit Court against the board and the union for a declaration that the agency shop clause is void and for injunctive relief. Upon remand from the United States Supreme Court, Abood and Warczak were consolidated with Kyes. In March 1978, on defendant’s motion, Anne B. Parks was dismissed as a plaintiff in Warczak for failure to pay the agency shop fee. Defendants filed a "motion for Partial Accelerated and Summary Judgment of Dismissal, On Remand, Nunc Pro Tunc”. Judge Kaufman issued an order granting defendants’ motion and holding that: 1) the 1973 amendment to the PERA prospectively authorized agency shop clauses; 2) the agency shop clauses contained in the agreements between the board and the union were valid and of full force; 3) the agency shop clause does not contravene constitutional or statutory law; and 4) the tenure act is inapplicable, procedurally and substantively, to termination of teachers for noncompliance with an agency shop clause. The court retained jurisdiction over the issues of whether and what portion of the agency shop fees had been used for constitutionally objectionable purposes and whether the clause was enforced prior to 1973, when it was authorized. It also stayed the circuit court proceedings pending exhaustion of internal union procedures for refund of the fees. Plaintiffs appeal the 1978 grant of partial summary judgment.
    Following her dismissal as a party in Warczak, Miss Parks was discharged from employment by the board. She appealed her dismissal to the State Tenure Commission, alleging that the teacher tenure act permits discharge of a tenured teacher only for "reasonable and just cause”, that a noncompliance with an agency shop clause is not reasonable and just cause and that, in any event, she should not have been discharged without compliance with the notice and hearing procedures established in the act. The tenure commission ruled that Miss Parks should be reinstated with back pay for the board’s failure to comply with the procedures. The board and the union appealed to the Wayne Circuit Court, which reversed the commission by summary judgment, Charles Kaufman, J. Parks appeals. The cases were consolidated for consideration on appeal. Held:

    1. The 1973 and 1978 summary judgments in Abood as to the applicability of the substantive and procedural provisions of the tenure act to discharge of a teacher for noncompliance with an agency shop clause are not res judicata in Parks. There must be identity as to the matter in issue for a former judgment to be res judicata in a later cause of action. The "matter in issue” is that matter upon which the plaintiff proceeds by his action and which the defendant controverts by his pleadings. The clauses involved in Abood incorporated the procedural aspects of the tenure act by their terms. Therefore, the issues are not identical.
    2. A tenured teacher may be discharged for failure to pay agency shop fees to the exclusive collective bargaining agent pursuant to an agency shop contract provision regardless of the "reasonable and just cause” requirement or other procedural protections of the teacher tenure act.
    3. A tenured teacher is entitled to a hearing before his employer, at which it is determined whether he is a violator of the agency shop clause, prior to being dismissed for failure to pay agency shop fees to the exclusive bargaining agent, as required by an agency shop clause in his employment contract.
    4. A tenured teacher who was denied due process in a dismissal otherwise justified on the facts is not entitled to reinstatement or back pay. Therefore, Miss Parks is not entitled to reinstatement or back pay.
    Affirmed and remanded for further proceedings.
    1. Judgments — Res Judicata — Matter in Issue.
    There must be identity as to the matter in issue for a former judgment to be res judicata in a later cause of action; the "matter in issue” is that matter upon which the plaintiff proceeds by his action and which the defendant controverts by his pleadings.
    2. Judgments — Res Judicata.
    Judgments are res judicata only as to matters in issue or that could have been put into issue in the former action.
    3. Schools — Teacher Tenure Act — Agency Shop — Dismissal for Nonpayment of Fees.
    A tenured teacher may be discharged for failure to pay agency shop fees to the exclusive collective bargaining agent pursuant to an agency shop contract provision regardless of the "reasonable and just cause” requirement or other procedural protections of the teacher tenure act (MCL 38.71 et seq.; MSA 15.1971 et seq.).

    4. Schools — Teacher Tenure Act — Legislative Purpose.
    The teacher tenure act was primarily intended to protect teachers from arbitrary and capricious dismissal by the local school board.
    5. Labor Relations — Schools — Public Employment Relations Act — Teacher Tenure Act.
    The public employment relations act has been consistently construed as the dominant law regulating public employee labor relations and must therefore supersede any other law in conflict with it, including the teacher tenure act (MCL 423.201 et seq., 38.71 et seq.; MSA 17.455[1] et seq., 15.1971 et seq.).

    6. Constitutional Law — Due Process — Property Right.
    The 14th Amendment requires that procedural due process— notice and opportunity to be heard — must be afforded to one who is threatened with deprivation of a property right.

      7. Constitutional Law — Dub Process — Property Interests — Tenured Teachers — Statutes.
    Property interests are created and their dimensions are defined by existing rules or understandings which secure certain benefits and which support claims of entitlement to those benefits that stem from an independent source such as state law; property interests are subject to due process protection; a tenured teacher has a protected "property” interest in his employment by virtue of the tenure act (MCL 38.91; MSA 15.1991).
    8. Schools — Tenured Teachers — Agency Shop — Dismissal for Nonpayment of Fees — Hearing.
    A tenured teacher is entitled to a hearing before his employer, at which it is determined whether he is a violator of the agency shop clause, prior to being dismissed for failure to pay agency shop fees to the exclusive bargaining agent, as required by an agency shop clause in a union contract; however, a tenured teacher so dismissed without a hearing is not entitled to a hearing where the dismissal has been appealed and he admits not paying the agency shop fees, rendering a situation where there is no factual dispute.
    9. Schools — Tenured Teachers — Dismissal — Due Process — Reinstatement — Back Pay.
    A tenured teacher who was denied due process in a dismissal otherwise justified on the facts is not entitled to reinstatement or back pay.

      Keller, Thoma, Schwarze & Schwarze, P.C. (by David E. Kempner), and the National Right to Work Legal Defense Foundation, Inc. (by Raymond J. LaJeunesse, Jr.), for plaintiffs in Abood, Warczak and Kyes and for defendant, Anne B. Parks, in Parks.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare (by Theodore Sachs and Mary Ellen Gurewitz), for defendant in Abood, Warczak and Kyes and for the Detroit Board of Education and the Detroit Federation of Teachers in Parks.

      Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   P. C. Elliott, J.

Statement of Facts

Respondent-appellant, Anne B. Parks, has been a teacher in the Detroit Public Schools since 1935. She is not a member of the designated bargaining agent for the teachers, the Detroit Federation of Teachers, Local 231, AFT, AFL-CIO (The DFT). Beginning with the contract negotiated between appellees herein, the DFT and the Detroit Board of Education (the Board) for the years from 1969-1971, an "agency shop clause” was included in the agreement requiring nonmembers of the union to pay service fees equal to the dues paid by union members. Parks paid this service fee, under protest, for the year 1973-1974, but has since refused to pay. In March of 1978 she was discharged from her position by the Board at the request of the DFT. She appealed her discharge to the State Tenure Commission, contending that the provisions of the Michigan teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., prohibit the discharge of a tenured teacher merely for noncompliance with an agency shop clause ("reasonable and just cause” is the standard, see section II, infra); and that, in any event, she should not have been discharged without compliance with the notice and hearing procedures established by the act. In May of 1979, the tenure commission ruled that Parks should be reinstated with back pay because of the Board’s failure to follow those procedures. The Board and the DFT appealed the commission’s decision to the Wayne County Circuit Court, which reversed the commission by a summary judgment entered August 3, 1979. Parks now appeals that reversal to this Court. Several issues are raised for our consideration. We state them at the outset with our conclusions on each.

1. Whether the 1973 and/or the 1978 summary judgments issued in Abood are res judicata in Parks as to the applicability, procedurally and substantively, of the tenure act to discharge of a teacher for noncompliance with an agency shop clause.

We conclude that they are not.

2. Whether a tenured teacher may be discharged for failure to pay agency shop fees regardless of the "reasonable and just cause” requirement and/ or other procedural protections of the teacher tenure act.

We hold that discharge of a teacher for noncompliance with an agency shop clause is permissible, without regard to the tenure act.

3. Whether a teacher may be discharged for failure to pay agency shop fees without a hearing, and whether such hearing, if any, should be before or after discharge.

We hold that procedural due process requires notice and an opportunity to be heard before a tenured teacher may be dismissed under an agency shop clause.

4. Whether Parks was entitled to reinstatement, either with or without back pay._

We hold that neither reinstatement nor back pay are required in this case.

I

Should The 1973 and/or 1978 Summary Judgments In Abood Have Res Judicata Effect In Parks?

"The first essential of the rule of res judicata is the identity of the matter in issue. The 'matter in issue’ is defined to be 'that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings’.” McCormick v Hartman, 306 Mich 346, 351; 10 NW2d 910 (1943), quoting Leroy v Collins, 165 Mich 380, 381; 130 NW 635 (1911).

The complaints filed in Warczak, Kyes and Abood all alleged generally that the agency shop clause entered into by the Board and the DFT was "contrary to” the Michigan tenure act, among other statutes, and the answers filed by defendants denied that allegation without further explanation. The lower court records do not reveal that any specific findings were made by the court with regard to the applicability of the "reasonable and just cause” requirement or the dismissal procedures of the tenure act before the 1973 motion for summary judgment was granted. Both the 1973 and 1978 judgments state that the agency shop clause does not contravene the tenure act, a holding which does not necessarily include the finding that the tenure act is "inapplicable procedurally and substantively to, * * * termination of teachers for non-compliance with [an agency shop clause]”.

" '(It) is immaterial whether the point was actually litigated in the first suit or not, if its determination was necessarily included in the judgment’.” Curry v Detroit, 394 Mich 327, 332, fn 7; 231 NW2d 57 (1975), quoting Barker v Cleveland, 19 Mich 230, 235-236 (1869).

The 1973 and 1978 judgments also both contain the holding that the agency shop clause at issue here "is valid and of full force and effect according to its terms”. The agency shop clause has, since it was first included in the collective bargaining agreement in 1969, authorized the dismissal of any teacher not in compliance with it. This does not, however, of itself negate a requirement that the tenure act be followed when the teacher threatened with dismissal is a tenured one. In fact, until 1977, the clause itself required the Board to follow the dismissal procedures of the tenure act "as applicable”. (See footnote 2, supra.)

The 1978 summary judgment contains a somewhat different — and broader — holding: that the tenure act is inapplicable to dismissals under an agency shop clause, both procedurally and substantively. It is this portion of the judgment which was given res judicata effect and upon which the circuit court based its conclusion that the tenure commission was without jurisdiction in Parks.

Appellees contend that this holding has been the "law of the case” in Abood since the summary judgment granted by the circuit court in 1970 in Warczak, and was merely restated by the judge in 1978. In his opinion granting the 1970 motion, Judge Kaufman did specifically consider and pass upon the question of whether the "reasonable and just cause” requirement of the tenure act applies to the dismissal of a teacher for nonpayment of agency shop fees. The clause in effect at that time provided that nonpayment of the fees was to be considered reasonable and just cause under the tenure act, and Judge Kaufman concluded that that clause was "valid and of full force and effect according to its terms”. In so holding, however, he relied heavily on the fact that adherence to the procedural protections of the tenure act was required by the clause itself. This requirement was not deleted until 1977. It is therefore clear that the question of whether the tenure act is procedurally applicable to a dismissal under the agency shop clause was never properly before the circuit court for decision, nor was it necessarily decided by its holdings on other issues. This portion of the holding contained in the 1978 summary judgment in Abood cannot, therefore, be given res judicata effect in Parks.

The circuit court did consider the effect of the substantive requirement (reasonable and just cause) of the tenure act on agency shop clause dismissals at least once — prior to granting the 1970 motion for summary judgment. The holding of the court as expressed in its opinion seems to be that the "reasonable and just cause” requirement does not prevent a teacher’s dismissal for failure to pay agency shop fees. The language of the opinion leaves unclear whether or not a formal finding of reasonable and just cause at a tenure act hearing would still be required. (See footnote 10, supra.)

This distinction between the "procedural” and "substantive” aspects of the tenure act was also blurred by the tenure commission in its decision and order in Parks. Though the stated ground of its decision to reinstate Parks was that she was denied the procedural protections of the tenure act in discussing the possible res judicata effect in Abood, the commission stated the issue before it as follows:

"In the instant matter, appellant is claiming the Board violated her statutory right to the due process procedures of the Teachers’ Tenure Act by failing to provide her with charges, notice and the right to a hearing in determining whether just and reasonable cause for discharge existed. In Abood, her challenge was directed at the constitutionality of the agency shop clause under which she was required to pay the service fee.” (Emphasis added.)

In short, though it had concluded that the agency shop clause was enforceable and did not contravene the tenure act, prior to its 1978 decisions, the circuit court had never held that the tenure act was completely inapplicable to agency shop clause dismissals. No new findings were made prior to its 1978 decision to grant summary judgment, and its order seems to have been primarily intended to summarize the holdings previously made in the case. Because of this and the difficulty in separating the "procedural” and "substantive” aspects of the act, we do not believe that this portion of the court’s decision in Abood can have res judicata effect in Parks, and we address the issue of the applicability of the act on its merits.

II

May a Tenured Teacher Be Discharged For Failure To Pay Agency Shop Fees Without Regard To The "Reasonable and Just Cause” or Other Procedural Requirements Of The Teacher Tenure Act?

The public employment relations act (PERA) MCL 423.201 et seq.; MSA 17.455(1) et seq., was enacted in 1947. It is titled

"AN ACT to prohibit strikes by certain public employees; to provide review from disciplinary action with respect thereto; to provide for the mediation of grievances and the holding of elections; to declare and protect the rights and privileges of public employees; and to prescribe means of enforcement and penalties for the violation of the provisions of this act.”

Section 10 of the act (as amended in 1973) states in part:

"That nothing in this act or in any law of this state shall preclude a public employer from making an agreement with an exclusive bargaining representative * * * to require as a condition of employment that all employees in the bargaining unit pay to the exclusive bargaining representative a service fee equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative.” MCL 423.210; MSA 17.455(10).

The teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. enacted in 1937 is titled

"AN ACT relative to continuing tenure of office of certificated teachers in public educational institutions; to provide for probationary periods; to regulate discharges or demotions; to provide for resignations and leaves of absence; to create a state tenure commission and to prescribe the powers and duties thereof, and to prescribe penalties for violation of the provisions of this act.”

The tenure act provides that a tenured teacher may only be discharged for "* * * reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided”. MCL 38.101; MSA 15.2001.

The teacher tenure act was primarily intended to protect teachers against "arbitrary and capricious” dismissal by the local school board. Boyce v Royal Oak Board of Education, 407 Mich 312, 320; 285 NW2d 196 (1979), Rehberg v Melvindale Board of Education, 330 Mich 541, 548; 48 NW2d 142 (1951). The PERA, on the other hand, has been "consistently construed * * * as the dominant law regulating public employee labor relations”, Rockwell v Crestwood School Dist Board of Education, 393 Mich 616, 629; 227 NW2d 736 (1975), and therefore must supersede any other law in conflict with it:

"The supremacy of the provisions of the PERA is predicated on the Constitution (Const 1963, art 4, § 48) and the apparent legislative intent that the PERA be the governing law for public employee labor relations.” Crestwood, supra, 630.

The PERA, and the present agency shop clause at issue here, contemplate that a tenured teacher may be discharged for failure to pay agency shop fees without any finding that such failure constitutes "reasonable and just cause” under the tenure act. The section of the PERA cited above allows payment of agency fees to be made a "condition of employment”, and the agency shop clause included in the various collective bargaining agreements between the Board and the DFT (see footnote 2, supra) provides for dismissal of any teacher who fails to pay them. There exists here then, as in Crestwood, a direct conflict between the two statutes, so the PERA must prevail.

The United States Supreme Court has previously held that requiring payment of agency shop fees as a condition of employment is constitutionally permissible to the extent that such fees are used for collective bargaining purposes, and it so held in this case. Abood v Detroit Board of Education, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977). See also, Railway Employees’ Dep’t, American Federation of Labor v Hanson, 351 US 225; 76 S Ct 714; 100 L Ed 1112 (1956), International Ass’n of Machinists v Street, 367 US 740; 81 S Ct 1784; 6 L Ed 2d 1141 (1961).

The Legislature of this state has declared that public policy requires the elimination of "free riders” in order to promote stability in labor relations in the public sector, notwithstanding any other law of this state. MCL 423.210; MSA 17.455(10), and footnote 12, supra.

The PERA was intended to be the "dominant law regulating public employee labor relations”. Crestwood, supra, 629 (and cases there cited), The Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104; 252 NW2d 818 (1977). It contains a provision specifically allowing a school board and an exclusive bargaining agent to include an agency shop clause requiring payment of the fees as a condition of employment in a collective bargaining agreement. In order to enforce the agency shop requirement, the DFT and the Board have decided that all teachers must comply with it or be subject to discharge. There is a "positive repugnancy” between the provision of the PERA which authorizes this and the provision of the tenure act which prohibits the discharge of a tenured teacher except for reasonable and just cause. Cf., Council No 23, AFSCME v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976). In such a situation, the PERA must supersede the tenure act and authorize an agency shop clause which calls for discharge for noncompliance therewith whether or not there is also "reasonable and just cause” to dismiss under the tenure act.

Unlike § 6 of the PERA, which specifically superseded not only the substantive but also the procedural requirements of the tenure act with regard to teachers who are dismissed for striking, § 10 allows an agency shop agreement as a condition of employment but does not provide procedures for dismissal. In light of the legislative intent that the PERA occupy the field of labor relations in the public sector, however, it would be inappropriate to follow the procedures set forth in the tenure act.

"The teachers’ tenure act was not intended, either in contemplation or design, to cover labor disputes between school boards and their employees. The 1937 Legislature in enacting the teachers’ tenure act could not have anticipated collective bargaining or meant to provide for the resolution of labor relations disputes in public employment * * *.
"[The State Tenure Commission’s] jurisdiction and administrative expertise is limited to questions traditionally arising under the teachers’ tenure act.” Crestwood, supra, 630. See also Lamphere Schools, supra, 124-125.

We do not think it necessary or desirable for the procedures of the tenure act or the jurisdiction of the tenure commission to become operative in an area apparently meant to be pre-empted by the Legislature of this state. We agree with the circuit court’s conclusion that the tenure act is inapplicable, procedurally and substantively, to dismissals for noncompliance with an agency shop clause.

Ill

Is a Teacher Terminated For Failure To Pay Agency Shop Fees Entitled To a Hearing, Either Before or After Discharge?

Our courts have long recognized that the 14th Amendment requires that procedural due process —notice and an opportunity to be heard — must be afforded to one who is threatened with deprivation of a property right.

"Before a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event’.” Board of Regents of State Colleges v Roth, 408 US 564, 570, fn 7; 92 S Ct 2701; 33 L Ed 2d 548 (1972), quoting Boddie v Connecticut, 401 US 371, 379; 91 S Ct 780; 28 L Ed 2d 113 (1971).

Not all employment interests are "property” requiring the protections of the 14th Amendment.

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it * * *.
Property interests * * * are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law —rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents v Roth, supra, 577.

In this case, as in Roth and Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972), Parks had a protected "property” interest in her employment which was created by the tenure act.

"After the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board * * * and shall not be dismissed or demoted except as specified in this act.” MCL 38.91; MSA 15.1991.

Appellees assert that if there was any right to a hearing before Parks’s dismissal, the proper forum would be the MERC, pursuant to an unfair labor practices claim under § 16 of the PERA. Aside from the question of whether the MERC would have jurisdiction over such a claim, since enactment of an agency shop clause is specifically excepted from the list of prohibited practices in § 10 of the PERA, such a procedure would allow the deprivation of important rights without a prior opportunity to be heard and would improperly place the burden of vindicating her rights on appellant. As the Crestwood Court noted, any procedures for the discharge of a tenured teacher should, as far as possible, be "consonant with the tenor of the procedures spelled out in the teachers’ tenure act” Crestwood, supra, 628.

"Furthermore, we find it to be contrary to the legislative intent, as expressed in the tenure act, to permit school boards to summarily dismiss tenure teachers * * *. Such a procedural approach places the burden upon the tenure teacher * * * rather than the present statutory approach which places the burden upon those making charges against the tenure teacher.” Rumph v Wayne Community School Dist, 31 Mich App 555, 562; 188 NW2d 71 (1971).

Of course, due process does not require a prior hearing in every case of deprivation of a property right.

"When the government seeks to deprive a person of a property right * * * due process requires a 'hearing appropriate to the nature of the case.’ Mullane v Central Hanover Bank & Trust Co, 339 US 306, 313; 70 S Ct 652; 94 L Ed 865 (1950), 'The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.’ Boddie v Connecticut, 401 US 371, 378; 91 S Ct 780; 28 L Ed 2d 113 (1970). 'The types of "liberty” and "property” protected by the Due Process Clause vary widely, and what may be required under that clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests.’ Arnett v Kennedy, 416 US 134, 155; 94 S Ct 1633; 40 L Ed 2d 15, 34 (1974). 'The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.’ Cafeteria Workers v McElroy, 367 US 886, 895; 81 S Ct 1743; 6 L Ed 2d 1230 (1961).
* * *
" 'We have repeatedly observed that due process requires that a hearing be held ''at a meaningful time and in a meaningful manner”, Armstrong v Manzo, 380 US 545, 552 [85 S Ct 1187; 14 L Ed 2d 62] (1965), but it remains for us to give content to that general principle in this case by balancing the Government’s asserted interests against those of the discharged employee.’ ” Arnett v Kennedy, supra, 416 US 134, 212 (Marshall, J., dissenting with Brennan and Douglas, JJ.). Crestwood, 633-634.

The Board has a valid interest in maintaining the stability of the union through enforcement of the agency shop clause by discharge. This interest does not, however, outweigh an employee’s interest in being protected from wrongful removal from a position in which he or she has a constitutionally protected property right and from the consequent financial deprivation. This is especially so considering the short time required for a hearing to determine whether discharge is authorized under the agency shop clause. The only relevant factual issue at such a hearing, as in a § 6 hearing, will be whether the teacher being discharged was correctly identified as a violator of the agency shop clause. As the "body having general disciplinary authority” (Crestwood, supra, 640), and because the relevant facts will no doubt be best known to it, the employer — in most cases the local school board — is the most appropriate choice to conduct the hearing.

No appeal should be necessary from whatever determination is made. If the hearing results in discharge of a teacher and she or he alleges that the discharge was for conduct protected by the PERA or that some employer misconduct was otherwise involved, an unfair labor practice charge could be filed with the MERC. Crestwood, supra, 633, 640. Or, if the teacher alleges that noncompliance with the agency shop clause was used as a mere subterfuge to circumvent the protections afforded by the tenure act, an appeal to the tenure commission may be proper. Chester v Harper Woods School Dist, 87 Mich App 235, 244; 273 NW2d 916 (1978). It seems that the only other possible subject of dispute remaining after the required hearing might be whether or not the correct portion of agency shop fees has or has not been paid by a teacher who has objected to use of the fees for any but collective bargaining purposes. In that event, however, resort to the internal procedures established by the DFT for determining the amount of fees due for that purpose would be proper._

Parks, therefore, was entitled to notice and an opportunity to be heard prior to her discharge for failure to pay agency shop fees. In the usual case, this holding would not, as appellees contend, require the Board to indulge in an "idle ceremony” as that phrase has been used in some of the cases involving discharged teachers. This case, unlike Rehberg v Melvindale Board of Education, supra, and Simon v Gibralter School Dist, 52 Mich App 643; 217 NW2d 891 (1974), involves not merely a variance from strict procedural rules but a complete failure by the Board to afford Parks a hearing at all, before or after her discharge. The agency shop clause itself does now and always has required notice of nonpayment of the fees and Parks received such notice, including notice of the possibility of discharge as a result. It would be pointless, however, to require that the Board now hold a hearing for Parks. She has already appealed her discharge to the tenure commission and we review its decision now. Furthermore, she has submitted an affidavit stating that she has not paid agency shop fees since 1973-1974 and that she paid the fees that year "under protest”. There is, therefore, no factual dispute to be resolved at a hearing and we hold that it is not necessary to hold one. See, e.g., Codd v Velger, 429 US 624; 97 S Ct 882; 51 L Ed 2d 92 (1977), Wehner v Levi, 183 US App DC 328; 562 F2d 1272 (1977).

IV

Is Appellant Parks Entitled to Reinstatement And/Or Back Pay?

We hold today that Parks’s discharge was wrongful to the extent that she was denied procedural due process. Our holding also makes it clear, however, that her discharge was authorized by the agency shop clause between the DFT and the Board and was not prohibited or affected by anything in the tenure act.

Reinstatement of Parks is not required under these facts. Reinstatement is the proper relief to be granted a wrongfully discharged employee who later prevails on the merits. Davis v River Rouge Board of Education, 406 Mich 486; 280 NW2d 453 (1979). Here, of course, Parks has admitted the grounds for her discharge.

We also do not believe that any award of back pay is either required or appropriate.

"A teacher is entitled to salary during the period of suspension, but the suspension ends when the school board renders a decision.
"We do not impute to the Legislature an intent to award salary to a teacher who has not yet prevailed on the merits and whose discharge was vacated on procedural grounds, subject to correction on remand without a rehearing * * *. The awarding of salary to a teacher who has not yet prevailed on the merits and whose discharge was reversed on procedural grounds is at odds with the rule of compensation for actual loss suffered. Moreover, the practice of awarding salary at this stage conflicts with the policy of determination of the amount of back pay until after there has been a definitive ruling on liability. See Shiffer v Gilbralter Schools [393 Mich 190; 224 NW2d 255 (1974)] * * *.
* * * If it is ultimately determined that the discharge was wrongful and the plaintiff is reinstated she would then be entitled to an award of back pay.” Pounder v Harper Woods Board of Education, 402 Mich 91, 93-94; 260 NW2d 287 (1977).

Parks was not suspended pending a decision of the Board on her discharge. She was given ample notice that the Board was considering dismissing her for noncompliance with the agency shop clause. We conclude that she is not entitled to an award of back pay for the time required for her appeal to the tenure commission, the circuit court and this Court.

To summarize, we agree with the conclusions of the circuit court in Parks, with the exception of its holding with respect to the res judicata effect of Abood. We further hold that a tenured teacher is entitled to a hearing prior to discharge pursuant to the agency shop clause. However, the failure to provide Mrs. Parks with a hearing before her discharge does not entitle her to relief because it is so clear that she deliberately refused to pay the agency shop fees required of her. The August 3, 1979, judgment in Parks is therefore affirmed.

In Abood, the issue of the court’s dismissal of Parks and Bepeta for nonpayment of the fees is moot because Mrs. Parks’s case is before us now and Mrs. Repeta apparently has retired. We therefore did not consider that portion of the judgment. In all other respects the August 16, 1978, judgment in Abood is affirmed and the case is remanded for further proceedings pursuant to the court’s retention of jurisdiction over certain issues.

       An extensive statement of the facts of the Abood case is appended to this opinion as footnote 24.

       The clause was to be effective January 1st of 1970. It required all employees, within 60 days of hire or its effective date, to either join the union and pay union dues or pay a monthly service fee to the union each month in an amount equal to regular union dues, "as a condition of employment”. The clause further provided that, upon notification by the union of an employee’s failure to comply, the Board "shall immediately notify said employee that his services shall be discontinued * * and that the Board "shall follow the dismissal procedure of the Michigan Tenure Act as applicable”. This clause has remained substantially the same to the present time, except that more extensive references to the tenure act were included until 1972 or 1973 (see footnote 9, infra), and beginning with the 1977-1979 contract, all references to the procedures of the tenure act were deleted.

      MCL 38.102; MSA 15.2002 requires the Board to furnish the teacher with a written statement of the charges, including the teacher’s right to a hearing to take place not less than 30 or more than 45 days after such charges are furnished. Parks apparently received a letter from the Board on December 29, 1977, notifying her that she would be discharged 60 days from the next Board meeting unless the fees were paid. On January 10, 1978, the Board voted to terminate Parks’s employment effective March 11, 1978, and on January 31, 1978, Parks received a letter notifying her of that decision.

       The tenure commission did not explicitly reach this issue; but it appears that it included within its definition of the "procedures” which must be followed under the tenure act the requirement that the Board show that failure to pay agency shop fees constitutes “reasonable and just cause” for dismissal. The decision of the commission refers with approval to a prior commission decision of Jackson v Swartz Creek Community Schools (75-12), app’d No. 78-290AA Gene-see County Circuit Court, which was decided largely upon that ground; and it principally relies upon MCL 38.172; MSA 15.2054 of the tenure act which states:
      "Sec. 2. No teacher may waive any rights and privileges under this act in any contract or agreement made with a controlling board. In the event that any section or sections of a contract or agreement entered into between a teacher and a controlling board make continuance of employment of such teacher contingent upon certain conditions which may be interpreted as contrary to the reasonable and just cause for dismissals, provided by this act, such section or sections of a contract or agreement shall be invalid and of no effect in relation to determination of continuance of employment of such teacher.”
      It may be that the commission intended to reserve this issue for consideration after the tenure act procedures for dismissal of Mrs. Parks were followed after her reinstatement pursuant to its decision.

       Judge Kaufman, who decided the Abood cases consolidated herein, also issued this order which held: that the tenure act is inapplicable, procedurally and substantively, to termination of teachers for noncompliance with an agency shop clause; that the tenure commission was without jurisdiction in the appeal of Parks from her discharge; that the August, 1978, and December, 1973, summary judgments issued in the Abood case were res judicata on the issue of the applicability of the tenure act to discharges for noncompliance with an agency shop clause; that the discharge of Parks was not in contravention of the tenure act; and that the Board was not required to follow the procedural steps of the tenure act requiring a hearing before discharging Mrs. Parks.

       In its opinion granting the 1973 motion, the circuit court concluded that the only, and dispositive, issue before it was whether or not the 1973 amendment to the PERA authorizing agency shop agreements could be applied retroactively. The court concluded that it was retroactive and therefore granted summary judgment to the defendants. The order issued pursuant to this opinion included, however, the findings made by the court in its 1970 order granting the defendants summary judgment to the effect that the clause did not "contravene” any law, including the tenure act. (See footnote 24, infra.)

       This holding was included for the first time in the August, 1978, order granting summary judgment. (See footnote 24, infra.) Defendants had requested a "nunc pro tunc” order, reiterating Judge Kaufman’s prior holdings in the case, in 1970 and 1973. In his opinion stated on the record in July, 1978, Judge Kaufman said that the order was not "nunc pro tunc”, but was more in the nature of an amendment of prior orders and that he believed that any discharge pursuant to an agency shop clause did not have to be "through” the tenure act. This was the only reference made to the "applicability” of the tenure act, and the fact that the agency shop clause had at that time been amended to delete reference to the procedures of the tenure act was not noted or discussed by the court.

       The 1978 judgment states that all the agency shop clauses in effect during this case since 1973 are valid. (See footnote 24, infra.)

       That portion of the clause read as follows:
      "The Board shall follow the dismissal procedures of the Michigan Tenure Act as applicable. The refusal of a teacher to contribute fairly to the costs of negotiation and administration of this and subsequent agreements is recognized as just and reasonable cause for termination of employment under the Michigan Tenure Act. However, if at the end of the semester, a teacher, or teachers, receiving the termination notice shall then be engaged in pursuing any legal remedies contesting the discharge under this provision before the Michigan Tenure Commission, or a court of competent jurisdiction, such teacher’s service shall not be terminated until such time as such teacher or teachers have either obtained a final decision as to the validity or legality of such discharge, or such teacher or teachers have ceased to pursue the legal remedies available to them by not making a timely appeal of any decision rendered in said matter by the Tenure Commission, or a court of competent jurisdiction.”
      This language, except the first sentence quoted, was deleted in the 1972-1973 contract year.

       The court dealt with the issue as follows:
      "Finally, it is necessary to determine whether the agency shop clause in the agreement is contrary to or prohibited by any state statute. First, plaintiffs call this Court’s attention to the Michigan Tenure Act which provides for discharge or demotion of a tenure teacher only for reasonable and just cause. Can this be reconciled with the agency shop clause which requires the dismissal of a teacher for failure to pay the service fee equivalent to the regular union dues? A reading of the contract will reveal that the constitutional safeguards of procedural due process as required by the Michigan Tenure Act be followed. If not against public policy and repugnant to any basic rights of individuals, it is most conceivable that this violation of the collective bargaining contract may justify discharge. The cases are myriad in holding that where the agency shop clause is violated an employee’s discharge for violation of the clause was reasonable.”

       Michigan State Tenure Commission, Decision and Order, p 7. See also footnote 4, supra.

       Subsection (2) of § 10 goes on to declare that:
      "It is the purpose of this amendatory act to reaffirm the continuing public policy of this state that the stability and effectiveness of labor relations in the public sector require, if such requirement is negotiated with the public employer, that all employees in the bargaining unit shall share fairly in the financial support of their exclusive bargaining representative by paying to the exclusive bargaining representative a service fee which may be equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative.”

       The fact that the agency shop clause (until 1977) required the Board to follow the dismissal procedure of the Michigan tenure act does not necessarily contemplate compliance with the substantive requirement of "reasonable and just cause” which has been interpreted as requiring that a teacher is "unfit to teach”, Beebee v Haslett Public Schools, 66 Mich App 718, 724; 239 NW2d 724 (1976), rev’d 406 Mich 224; 278 NW2d 37 (1979), a finding which does not necessarily follow from a mere failure to pay agency shop fees.

       This public policy does not infringe the constitutional rights of public employees. Abood v Detroit Board of Education, 60 Mich App 92; 230 NW2d 322 (1975), rev’d and remanded on other grounds 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977), reh den 433 US 915; 97 S Ct 2989; 53 L Ed 2d 1102 (1977).

       Appellants contend that there are two other methods of enforcing an agency shop clause and that one or the other of them must he resorted to in the case of a tenured teacher. Requiring the Board and/ or the DFT to institute a civil suit to recover agency shop fees from all objecting employees is too cumbersome a method of enforcing the declared public policy of this state. Further, it is not clear, as appellants suggest, that MCL 408.477; MSA 17.277(7) authorizes automatic deductions of agency shop fees from the wages of objecting employees. Such deductions would not only raise constitutional problems, but are apparently prohibited by MCL 750.353; MSA 28.585.

       MCL 423.206; MSA 17.455(6).

         MCL 423.216; MSA 17.455(16).

       There may be some explanation for the failure to pay the agency shop fees such as a belief they were deducted or lost in the mail or other reasonable excuse that is not a willful failure or refusal to pay.

       It may not be necessary to hold a full-blown hearing before the entire Board. As we have already noted, due process demands only "such procedural protections as the particular situation demands”, Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484 (1972), quoted in Wehner v Levi, 183 US App DC 328; 562 F2d 1276 (1977), where a procedure by which an employee was given notice and an opportunity to explain his conduct in writing and at a meeting with a superior prior to discharge was held to comport with due process.

       We note that the PERA provides for circuit court review of the hearing decision made pursuant to § 6 discharges for striking. A similar right might be implied here in the unlikely event that review of the factual determination of nonpayment is sought.

       The Supreme Court described the internal union procedure devised by the DFT and the Board in footnote 41 of the Abood case, as follows:

        "Under the procedure adopted by the Union, as explained in the appellees’ brief, a dissenting employee may protest at the beginning of each school year the expenditure of any part of his agency-shop fee for 'activities or causes of a political nature or involving controversial issues of public importance only incidentally related to wages, hours, and conditions of employment.’ The employee is then entitled to a pro rata refund of his service charge in accordance with the calculation of the portion of total Union expenses for the specified purposes. The calculation is made in the first instance by the Union, but is subject to review by an impartial board.” Abood v Detroit Board of Education, 431 US 209, 240, fn 41.

       This situation also differs from that presented in Steeby v Highland Park School Dist, 56 Mich App 395; 224 NW2d 97 (1974), where teachers are terminated because economic necessity requires a reduction in personnel, because the tenure act provides a remedy in that situation — appointment to the next vacancy.

       Parks may be reinstated, of course, upon payment of the required fees.

       Parks was originally a plaintiff in Warczak v Detroit Board of Education, one of the consolidated appeals herein, which was filed in November of 1969 in the Wayne County Circuit Court. Plaintiffs in that case sought a ruling that the agency shop clause (see footnote 2, supra), included for the first time in the collective bargaining agreement for the years 1969-1971, was contrary to various provisions of the United States and Michigan Constitutions and to statutes of the State of Michigan, including the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., and the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. The Warczak complaint also alleged that a "substantial part” of the agency shop fees required of nonmembers of the DFT were not being used solely for collective bargaining purposes but for "activities and programs which are economic, political, professional, scientific and religious”. In January, 1970, Judge Kaufman granted defendants’ motion for summary judgment for failure to state a claim. The order stated that the challenged agency shop clause "is valid and of full force and effect according to its terms”, and that the clause "does not contravene the Constitution of the United States or of the State of Michigan or the statutes of the State of Michigan”, including the PERA and the tenure act. Because of its decision in Smigel v Southgate Community School Dist, 388 Mich 531; 202 NW2d 305 (1972), the Supreme Court vacated this judgment and remanded to the circuit court for further proceedings in December of 1972. 389 Mich 755 (1972).
      Meanwhile, in 1970, the complaint in Abood v Detroit Board of Education was filed and was consolidated with Warczak for the remand proceedings. In response to Smigel, the Legislature amended § 10 of the PERA specifically to allow a public employer and an exclusive bargaining representative to include an agency shop clause in a collective bargaining agreement. Defendants’ renewed motion for summary judgment was granted by Judge Kaufman in December of 1973. This order stated that the 1973 amendment to PERA authorized agency shop clauses, both prospectively and retrospectively, and restated the holdings of the 1970 order. The plaintiffs in Warczak and Abood appealed the 1973 summary judgment to this Court, asserting error in the circuit court’s retroactive application of the PERA amendment and in the finding that the agency shop clause was constitutional. In Abood v Detroit Board of Education, 60 Mich App 92; 230 NW2d 322 (1975) this Court reversed the circuit court’s holding that the PERA amendment applied retroactively. We also held that the agency shop clause was constitutional but that plaintiffs could not be compelled to pay for non-collective-bargaining activities. However, as plaintiffs had failed to list the objectionable activities with specificity, they had failed to state a cause of action on this issue. When review of this decision was denied by the Michigan Supreme Court, plaintiffs appealed to the United States Supreme Court. While that appeal was pending, the complaint in Kyes v Detroit Board of Education was filed. In an opinion issued May 23, 1977, the United States Supreme Court agreed with the Court of Appeals that the agency shop clause is constitutional insofar as fees are used for collective bargaining purposes but unconstitutional to the extent that it compels plaintiffs to support other political or ideological activities of which they do not approve. Abood v Detroit Board of Education, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977). The Supreme Court held that plaintiffs had adequately stated a cause of action as to these objectionable activities, and the Court of Appeals decision was vacated and remanded for further proceedings upon that issue.
      After remand to circuit court in September of 1977, the case was consolidated with Kyes. Also in September, 1977, plaintiffs moved for an order allowing escrow payments of the agency shop fees. This motion was denied, and no appeal was taken. In February of 1978, the circuit court granted defendants’ motion to dismiss Anne Parks and Genevive Repeta as plaintiffs for failure to pay agency shop fees. In March, 1978, Parks was discharged from her employment by the Board for failure to pay the fees, and she appealed her discharge to the State Tenure Commission. Repeta apparently retired at this time. In April, 1978, defendants filed a "Motion for Partial Accelerated and Summary Judgment of Dismissal, On Remand, Nunc Pro Tunc”, seeking reaffirmance of the circuit court’s prior orders of December, 1973, and February, 1978. On August 16, 1978, Judge Kaufman issued an order granting defendants’ motion which included the following findings:
      1. The 1973 PERA amendment prospectively authorized agency shop clauses;
      2. The agency shop clauses contained in the agreements between the Board and the DFT "were valid and of full force and effect according to their terms, effective June 14, 1978”;
      3. The agency shop clause does not contravene the United States or Michigan Constitution or any statute or the State of Michigan including the PERA and the tenure act, among others;
      4. The tenure act is inapplicable, procedurally and substantively, to termination of teachers for noncompliance with an agency shop clause; and
      5. Plaintiffs Parks and Repeta are dismissed as parties plaintiff for failure to pay agency shop fees.
      The circuit court retained jurisdiction over the issues of whether or what portion of agency shop fees had been used for constitutionally objectionable purposes and whether the agency shop clause was enforced prior to 1973, when it was authorized. However, on the same day, August 16, 1978, Judge Kaufman also issued a stay of the circuit court proceedings pending exhaustion of internal union procedures for refund of the fees and denied plaintiffs’ renewed motion for escrow of the fees. Leave to appeal from these orders was applied for and denied by this Court in October of 1978.
      Plaintiffs now appeal from the August 16, 1978, order granting partial summary judgment, especially paragraph 4 thereof, which they claim was never a part of the prior judgments of the circuit court and therefore never properly within its subject matter jurisdiction. As this appeal has now been consolidated with the Parks appeal and we decide the res judicata effect of Abood on Parks, we find it unnecessary to address the issue of jurisdiction in Abood, as the issue of the applicability of the tenure act was properly before the circuit court in Parks. We also find it unnecessary to deal with the issue of whether Parks was properly dismissed as a plaintiff for lack of standing because of her failure to pay the fees. The other issues raised in this case will be discussed and decided in the factual context presented in Parks.


source: Caselaw Access Project

author: J. H. Gillis, J.

license: Public Domain

text:
    PRYBER v MARRIOTT CORPORATION
    Docket No. 48150.
    Submitted May 6, 1980, at Grand Rapids.
    Decided June 3, 1980.
    Barbara Pryber, a Michigan resident, was injured on July 3, 1976, at an Illinois amusement park owned by defendant Marriott Corporation. Barbara Pryber, along with her husband Albert Pryber, commenced a personal injury action on June 29, 1979. Defendant’s timely-filed answer failed to raise the defense of a statute of limitations; however, defendant filed an amended answer raising the defense of a statute of limitations within 15 days of the filing of the original answer, wherein it asserted that the Michigan statute in effect on the date of the injury "borrowed” the two-year Illinois statute of limitations on personal injury actions and that plaintiffs’ claim was therefore barred. Plaintiffs argued that the 1978 amendment to the Michigan “borrowing” statute which provides that an action accrued in favor of a Michigan resident is controlled by the Michigan statute of limitations was applicable to the present action and that the action was therefore timely brought within the applicable three-year Michigan statute of limitations. The Oakland Circuit Court, John N. O’Brien, J., held that the Legislature was constitutionally prohibited from reviving a cause of action which had been barred by the statute of limitations and granted defendant’s motion for accelerated judgment. Plaintiffs appeal. Held:

    1. Defendant’s failure to raise the defense of statute of limitations in its original answer did not waive that defense, since defendant filed an amended answer incorporating that defense within 15 days of having filed its original answer. The amended answer was thus filed as a matter of right and relates back to and becomes part of the original pleading.
    2. The Legislature evidenced a clear intent that the 1978 amendment to the statute of limitations borrowing statute was to be applicable to all actions commenced after the effective date of the amendment. Statutes of limitations operate prospectively unless an intent to have the statute operate retrospectively is clearly and unequivocally indicated in the statute. The 1978 amendment evidences that necessary clear intent that it should be applied retrospectively. The conflict between the clear intent that the amendment’s provisions should be applied to all actions thereafter commenced and the clear intent of the general provision that limitations on actions are governed by the law in effect on the date the action accrued is resolved in favor of the provision in the amendment, it having been the last enacted. It is presumed that the Legislature had knowledge of the general provision and intended the amendment to act as an exception to that general provision.

      References for Points in Headnotes

       61 Am Jur 2d, Pleading §§ 305 et seq., 336.

       73 Am Jur 2d, Statutes §§ 145, et seq., 347 et seq.

       51 Am Jur 2d, Limitation of Actions § 12.

      3. Since the right to interpose a statute of limitations to defeat a claim is not a vested right, the Legislature’s action in lifting the bar of the statute of limitations so as to restore a remedy which had been lost through the lapse of time did not violate either the United States or Michigan constitutions.
    4. Since the 1978 amendment evidences a clear legislative intent that it should apply to the present situation, and since such action by the Legislature was constitutionally permissible, the three-year Michigan statute of limitations, rather than the two-year Illinois statute of limitations, applied. The trial court accordingly erred in granting accelerated judgment in favor of defendant.
    Reversed and remanded.
    1. Pleading — Responsive Pleading — Affirmative Defenses — Waiver — Amendment — Court Rules.
    The aflirmative defense of statute of limitations is not waived by the failure to raise that defense in the first responsive pleading where the defense is raised in an amended pleading filed within 15 days, since such amended pleading is of right and relates back to and becomes part of the original pleading (GCR 1963, 111.3, 116.1, 118.1).
    2. Limitation of Actions — Statutes — Retrospective Application — Intent — Legislature’s Knowledge — Presumptions — Exceptions.
    The 1978 amendment to a statute of limitations evidences a clear intent by the Legislature to give retrospective rather than prospective application to the amendment’s provisions; the conflict between the expressed intent for retrospective application of the amendment and the general statutory provision that actions will be governed by the limitation in effect at the time the action accrued is resolved in favor of the language of the amendment, it being presumed that the Legislature had knowledge of the prior general provision and intended the specific provision of the later enactment to be an exception to the general provision (MCL 600.5861; MSA 27A.5861 as amended by 1978 PA 542, § 1, MCL 600.5869; MSA 27A.5869).
    3. Limitation of Actions — Constitutional Law — Restoration of Remedy — Vested Rights.
    The Legislature may lift the bar of a statute of limitations and thereby restore a remedy which has been lost by the lapse of time without violating either the United States or Michigan constitutions, the right to defeat a claim by the interposing of a statute of limitations not being a vested right.

      Ray H. Boman, for plaintiffs.

      Jack H. Erps (by Ellen C. Nowicki), for defendant.
    Before: R. B. Burns, P.J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

This is a personal injury action. Plaintiffs allege that as a result of defendant’s negligence plaintiff Barbara Pryber was injured while at defendant’s amusement park in Gurnee, Illinois. The injury occurred on July 3, 1976. Plaintiffs’ complaint was filed on June 29, 1979. Defendant moved for accelerated judgment, GCR 1963, 116.1(5), raising a statute of limitations defense. The motion was granted on August 29, 1979. Plaintiffs appeal as of right. GCR 1963, 806.1.

Plaintiffs first contend that the defendant waived the statute of limitations defense by failing to raise it in its first responsive pleading. The contention is without merit.

Defendant filed its answer on July 26, 1979. An amended answer was filed within 15 days. The statute of limitations defense was raised in the amended pleading. The failure by a defendant to include an affirmative defense in his first responsive pleading generally waives that defense. GCR 1963, 116.1, 111.3. However, GCR 1963, 118.1 provides that a party may amend his pleading once as a matter of course within 15 days after it is served if the pleading is one to which no responsive pleading is required and the action has not been placed on the trial calendar. The amended pleading relates back to and becomes a part of the original pleading. GCR 1963, 118.4. Raising the statute of limitations defense in this manner supersedes the imposition of a waiver based on Rule 111. Manufacturers Construction Co v Covenant Investment Co, 43 Mich App 123, 125-126; 204 NW2d 54 (1972), 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 200.

Plaintiffs’ next contention presents a more difficult problem. Plaintiff Barbara Pryber’s injury occurred on July 3, 1976. Plaintiffs’ cause of action accrued on that date. MCL 600.5827; MSA 27A.5827. On that date, MCL 600.5861(2); MSA 27A.586K2) read:

"The period of limitations applicable to a claim accruing outside of this state shall be either that prescribed by the law of the place where the claim accrued or by the law of this state, whichever bars the claim.”

The applicable Illinois statute, Ill Rev Stat, Ch 83, § 15, provides a two-year period in which an action for personal injuries can be brought. The applicable Michigan statute, MCL 600.5805(7); MSA 27A.5805(7), provides a three-year period in which an action for personal injuries can be brought. Thus, plaintiffs’ cause of action was barred by application of the Illinois statute of limitations on July 3, 1978.

However, 1978 PA 542, § 1, effective December 22, 1978, amended § 5861(2) to read as follows:

"An action based upon a cause of action accruing without this state shall not be commenced after the expiration of the statute of limitations of either this state or the place without this state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of this state the statute of limitations of this state shall apply. This amendatory act shall be effective as to all actions hereinafter commenced and all actions heretofor commenced now pending in the trial or appellate courts.” (Emphasis supplied.) MCL 600.5861; MSA 27A.5861 as amended.

The present action was filed on June 29, 1979. The lower court ruled that MCL 600.5861(2); MSA 27A.5861(2), prior to its amendment, controlled and effectively barred plaintiffs’ cause of action. The lower court reasoned that the Legislature was without authority to revive a cause of action which had been barred by the statute of limitations. On this basis, accelerated judgment was granted.

Plaintiffs contend that the lower court erred, arguing that the Legislature has the authority to revive by statute a cause of action which has been barred.

A two-step analysis is required to resolve the issue. First, we must determine the legislative intent underlying the amendatory act. Second, we must determine whether the Federal or state constitutions prevent the Legislature from carrying out its intention.

At the outset, we note that MCL 600.5861; MSA 27A.5861 is a statute of limitations rather than a choice-of-law statute. The statute "borrows” the limitations rule of another state and makes it the law of the forum for the purposes of the particular litigation. See Leflar, American Conflicts Law, § 128, p 307.

Statutes of limitations operate prospectively unless an intent to have the statute operate retrospectively clearly and unequivocally appears from the context of the statute itself. In re Davis’ Estate, 330 Mich 647, 652; 48 NW2d 151 (1951), 20 Michigan Law & Practice, Statute of Limitations, § 3, p 546. The last sentence of § 5861, which reads: "This amendatory act shall be effective as to all actions hereinafter commenced and all actions heretofor commenced now pending in the trial or appellate courts”, clearly indicates the legislative intent that the statute be applied retroactively. The effect of such application under the facts of the instant case is to revive the cause of action which had been barred by the running of the prior statute of limitations.

This, however, does not end our inquiry into the legislative intent. The reason for the continuation of that inquiry is the existence of MCL 600.5869; MSA 27A.5869, which provides in relevant part:

"All actions * * * shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions.”

The statutes are in apparent conflict. Section 5869 indicates that the applicable statute of limitations is that in effect at the time plaintiffs’ cause of action accrued, MCL 600.5861(2); MSA 27A.5861(2), prior to its amendment. See Kennedy v Local 38, United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, 3 Mich App 700, 705-706; 143 NW2d 596 (1966). Section 5861 as amended indicates that it is the applicable statute of limitations.

Statutes in pari materia are those which relate to the same thing or which have a common purpose. Palmer v State Land Office Board, 304 Mich 628; 8 NW2d 664 (1943). The statutes here are in pari materia. Where two statutes are in pari materia and are in irreconcilable conflict, the one last enacted will control or be regarded as an exception to or qualification of the earlier statute. Metropolitan Life Ins Co v Stoll, 276 Mich 637, 640-641; 268 NW 763 (1936). Application of this rule requires the conclusion that the Legislature intended that § 5861 apply in the instant case. This conclusion is reinforced when one considers that the Legislature when amending a statute must be presumed to have knowledge of existing statutes. Skidmore v Czapiga, 82 Mich App 689, 691; 267 NW2d 150 (1978).

Having concluded that the Legislature, in enacting 1978 PA 542, § 1, intended to revive causes of action which had been barred by the application of MCL 600.5861(2); MSA 27A.586K2), we must next determine whether the Legislature has the authority to effect this intention.

Federal constitutional law on this issue is clear. An act of state legislation which has the effect of lifting the bar of a statute of limitations so as to restore a remedy which has been lost through lapse of time is not per se violative of the Fourteenth Amendment to the United States Constitution. Chase Securities Corp v Donaldson, 325 US 304, 311; 65 S Ct 1137; 89 L Ed 1628 (1945), citing Campbell v Holt, 115 US 260; 6 S Ct 209; 29 L Ed 483 (1885). See also International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 790 v Robins & Myers Inc, 429 US 229; 97 S Ct 441; 50 L Ed 2d 427 (1976). Thus, the Federal constitution will not prevent the Legislature from effecting its intention in this regard.

The same conclusion obtains as a matter of state constitutional law. The right to defeat a claim by interposing a statute of limitations is not a vested right. The right to defeat a claim by the interposition of a statute of limitations is a right which may be removed by the Legislature. Evans Products Co v State Board of Escheats, 307 Mich 506, 541-545; 12 NW2d 448 (1943), Rookledge v Garwood, 340 Mich 444, 457; 65 NW2d 785 (1954), Lahti v Fosterling, 357 Mich 578, 589; 99 NW2d 490 (1959).

On the basis of the foregoing analysis, we hold that the lower court erred in determining that the Legislature was without authority to revive a cause of action which had been barred by the statute of limitations and in granting the defendant accelerated judgment. That judgment is reversed and the case remanded for trial.

Reversed and remanded.

       1961 PA 236, § 5869, effective January 1, 1963.


author: Per Curiam.

text:
    PEOPLE v SMITH
    Docket No. 78-1100.
    Submitted May 14, 1980, at Lansing.
    Decided June 4, 1980.
    Ronald A. Smith was convicted, on his plea of guilty, of assault with intent to commit criminal sexual conduct in the second degree, Oakland Circuit Court, Francis X. O’Brien, J. Defendant appeals, alleging that he was not informed that by offering the guilty plea he was waiving his right to remain silent. Held:

    The record reveals that the defendant admitted having been advised of all of his rights by his attorney and that he signed a form explaining the rights which he was waiving by not having a trial, including the right to remain silent and have no adverse inference drawn from his silence. The defendant was adequately advised of his rights so as to create a valid, knowing and voluntary plea of guilty.
    Affirmed.
    Criminal Law — Plea of Guilty — Waiver of Rights — Appeal.
    The Court of Appeals, when reviewing the issue of whether a defendant who pled guilty was properly informed that he was waiving his right to remain silent, should not reverse the conviction where it appears on the record that the defendant was informed of such constitutional rights and incidents of a trial as reasonably to warrant the conclusion that he understood what a trial is and that by pleading guilty he was knowingly and voluntarily giving up his right to a trial and to such rights and incidents.
    References for Points in Headnotes
    [I]4 Am Jur 2d, Appeal and Error § 867. 21 Am Jur 2d, Criminal Law § 487.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

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

      John C. Polasky, for defendant.
    Before: D. F. Walsh, P.J., and Bashara and K. B. Glaser, JJ.

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

   Per Curiam.

Defendant appeals his plea-based conviction of assault with intent to commit criminal sexual conduct in the second degree, MCL 750.520g(2); MSA 28.788(7)(2).

Defendant’s only claim on appeal is that he was not informed that he was waiving his right to remain silent and that no adverse inference could be drawn from his refusal to testify. It is true that the record does not reveal an explicit query from the trial judge as to whether the defendant expressly waived his right to remain silent at trial.

The record also reveals that defendant admitted having been advised of all of his rights by his attorney. He admitted filling out the plea-taking form and going over each item with his attorney as shown by the following colloquy:

"THE COURT: All right, with regards to your rights, Mr. Smith, have you been advised of all of your rights?
"MR. SMITH: Yes.
"THE COURT: Did you go over this form, this plea of guilty with your attorney?
"MR. SMITH: Yes, I did.
"THE COURT: Did you go over each and every item?
"MR. SMITH: Yes.
"THE COURT: Did you understand it all?
"MR. SMITH: Yes, I do.”

Question 11 of the guilty plea form to which defendant referred states the following:

"11. Do you understand you have the right to testify at the trial if you want to testify or you have the right to remain silent and need not incriminate yourself, and do not have to take the witness stand in your own defense, and that the prosecution cannot comment upon your failure to do so and that no inferences adverse to you may be drawn if you choose not to testify?”

The defendant wrote the answer "Yes” in his own handwriting.

In Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), in effect the textbook on guilty plea proceedings, our Supreme Court stated it is mandatory that the defendant be advised of the so-called Boykin-Jaworski rights, one of which is the right to remain silent. However, the Court amplifies:

"The primary purpose of subsection (d) is to impress on the accused that by his plea of guilty he waives his right to a trial. If it appears on the record that this purpose has been achieved, the omission of one or another of these rights, other than a Jaworski right, or the imprecise recital of any such right, including a Jaworski right, does not necessarily require reversal.
"On appeal the issue is whether it appears on the record that the defendant was informed of such constitutional rights and incidents of a trial as reasonably to warrant the conclusion that he understood what a trial is and that by pleading guilty he was knowingly and voluntarily giving up his right to a trial and such rights and incidents.” 395 Mich 96, 122.

We also refer to the case of People v Killing- beck, 49 Mich App 380; 212 NW2d 256 (1973). Judge, now Justice, Fitzgerald, writing for a unanimous Court stated:

"The prearraignment questionnaire, acknowledged by defendant at the plea-taking and later at the postconviction review, constitutes a part of the record of equal dignity and effect as that transcribed in a verbal proceeding. In fact, the Supreme Court considered the written statements of defendants taken in connection with their guilty pleas as part of the record in Jaworski, supra, and People v Butler, 387 Mich 1, 12-13; 195 NW2d 268, 273-274 (1972). Reference to the prearraignment questionnaire indicates that defendant was substantially advised of his constitutional right against self-incrimination and his right to confrontation.” 49 Mich App 380, 386.

We conclude that defendant was adequately advised of his constitutional rights so as to create a valid, knowing and voluntary plea of guilty.

Affirmed.

        Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), and People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972).


text:
    PEOPLE v HORTON
    Docket No. 78-5093.
    Submitted April 9, 1980, at Detroit.
    Decided June 4, 1980.
    Raymond L. Horton was convicted of unarmed robbery, Recorder’s Court of Detroit, George W. Crockett, III, J. Defendant appeals, alleging several errors. Held:

    1. Defendant’s allegation that the police had no probable cause to arrest him without a warrant is meritless. Defendant was arrested while engaging in activities similar to those involved in previous robberies in the same area. This, combined with the fact that the defendant resembled the description given by previous victims, constituted probable cause for the police to arrest the defendant.
    2. The lineup at which the defendant was identified was not unduly suggestive. A scar on defendant’s face was not so significant as to preclude identification based on other physical characteristics, and counsel present at the lineup testified that the procedure followed was fair.
    3. Testimony of a previous victim was properly admitted to show defendant’s scheme, plan or system. The trial court was not required to expressly balance on the record the probative value of this testimony against its prejudicial effect.

      References for Points in Headnotes

       5 Am Jur 2d, Arrest §§ 22, 24, 25, 32.

       5 Am Jur 2d, Appeal and Error § 791.

       21 Am Jur 2d, Criminal Law § 368. 29 Am Jur 2d, Evidence § 371.4.
    Physical examination or exhibition of, or text upon, suspect or accued, as violating rights guaranteed by federal Constitution— federal cases. 16 L Ed 2d .1332.

       29 Am Jur 2d, Evidence § 320 et seq.

       29 Am Jur 2d, Evidence § 326.

       29 Am Jur 2d, Evidence §§ 253, 260.

       5 Am Jur 2d, Appeal and Error §§ 545 et seq., 602.

       29 Am Jur 2d, Evidence § 372.

       29 Am Jur 2d, Evidence §§ 367 et seq., 494. 30 Am Jur 2d, Evidence § 1103.

       21 Am Jur 2d, Criminal Law §§ 313, 319.
    Accused’s right to assistance of counsel at or prior to arraignment. 5 ALR3d 1269.

       21 Am Jur 2d, Criminal Law § 314.5. 29 Am Jur 2d, Evidence § 371.4.

      4. Prior consistent statements of certain of the witnesses, pertaining to the identification of the defendant, were properly admitted into evidence.
    5. The presence of counsel was not required at the defendant’s arraignment.
    6. The appointment of counsel to observe lineups, in order to curtail suggestiveness, without representing particular clients, is proper.
    7. There was no error in the prosecution’s statements to the jury on voir dire.
    8. The trial court properly recognized an error in the presentence report and did not rely upon the erroneous information when sentencing the defendant.
    Affirmed.
    1. Arrest — Warrant Requirement — Reasonable Belief.
    An arrest warrant is not required for a valid arrest where a police officer has reasonable cause to believe that there has been a felony committed and that the person arrested committed it; such reasonable belief may be founded upon information supplied from a reliable citizen source, including a description given to police by a complainant.
    2. Criminal Law — Lineups — Standard of Review.
    A defendant is entitled to an evidentiary hearing where the defendant claims that a lineup was constitutionally improper; the standard of review of the lineup is that the identification procedure followed must not have been so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law.
    3. Criminal Law — Lineups — Physical Characteristics.
    The presence of a scar on a defendant’s face is not enough to invalidate a lineup identification where the scar alone was not so significant as to preclude identification based upon other physical characteristics.
    4. Criminal Law — Lineups — Suggestiveness — Burden of Proof.
    A defendant has the burden of factually supporting his claim that a lineup was impermissibly suggestive where counsel was present at the lineup.

      5. Criminal Law — Evidence — Prior Similar Acts.
    Evidence of a defendant’s prior similar act is admissible where it is probative of one or more of the statutorily specified purposes for admitting such evidence and one or more of those purposes is material to the case.
    6. Criminal Law — Evidence — Prior Similar Acts.
    Evidence of a defendant’s similar acts may be admissible to show a common scheme or plan where there is proof that (1) the manner in which the criminal act with which the defendant is charged was performed bore certain distinguishing, peculiar or special characteristics, (2) the specific similar acts, performed contemporaneously with, prior to or subsequently to the act in question, b.ore the same distinguishing, peculiar or special characteristics, (3) the similar acts were performed by the defendant, and (4) accordingly, the act in question was performed by the defendant.
    7. Criminal Law — Evidence — Judge’s Discretion — Rules of Evidence.
    Any evidence may be excluded where its prejudicial effect outweighs its probative value; however, it is not necessary that a trial court expressly balance on the record the probative value of evidence of a defendant’s prior similar act against the prejudicial effect of such evidence (MRE 403).
    8. Criminal Law — Appeal — Failure to Object.
    Failure of a defendant to object at trial to the admission into evidence of prior consistent statements of certain witnesses precludes appellate review of the admissibility of that evidence.
    9. Criminal Law •— Evidence — Witnesses — Prior Consistent Statements — Hearsay — Rules of Evidence.
    Evidence of a witness’s prior statement of identification of a defendant is not hearsay (MRE 801[d][l]).
    10. Criminal Law —• Evidence — Police Officers — Prior Consistent Statements — Identification.
    Generally, the prior consistent statement of a police officer relating to the identification and description of a defendant is not admissible into evidence; however, admission of such evidence was not error where no objection was made and where the defense relied on the admission of the evidence in presenting its theory of the case and in conducting its trial strategy.

      11. Criminal Law — Arraignment on Warrant — Critical Stage of Proceedings.
    Arraignment on a warrant is not a critical stage of a criminal prosecution requiring the presence of counsel.
    12. Criminal Law — Lineups — Appointed Counsel.
    The appointment of counsel to observe lineups for suggestiveness, without representing particular clients, is permissible.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Gary Dettloff, Assistant Prosecuting Attorney, for the people.

      Edwin R. Leonard, for defendant on appeal.
    Before: Danhof, C.J., and Cynar and Mackenzie, JJ.
   Per Curiam.

Defendant was convicted by a jury of unarmed robbery, contrary to MCL 750.530; MSA 28.798. He was sentenced to a term of 10 to 15 years and appeals as of right.

The complainant, Thomas Kittrell, testified that he left work at the Blue Cross-Blue Shield building in downtown Detroit early in the evening of March 23, 1978. He had parked his van in a nearby parking structure. After Kittrell stopped for a red light on an adjacent street, defendant, who had been concealed in the rear of the van, moved forward and accosted Kittrell, forcing him to drive to another location where defendant robbed him of various articles of clothing and personal effects. Defendant subsequently made good his escape on foot. Kittrell reported the incident to the police and provided a description of the robber.

A number of robberies with a similar modus operandi, perpetrated by an individual with a similar description, caused the police to establilsh a surveillance of the area around the Blue Cross-Blue Shield building. On March 29, 1978, defendant, who bore a strong resemblance to the description, was seen by police officers approaching a man in the vicinity where the surveillance was being conducted, apparently to accost the other individual. Together they drove to a location near where the previous robberies had been perpetrated. Suspecting that a felony was in progress and fearing for the safety of the driver of the vehicle, the police apprehended defendant. Later that same day, defendant was identified in a lineup by Thomas Kittrell as the man who robbed him. David Hall, a prior victim, also identified defendant in the lineup.

Defendant’s first assignment of error involves the trial court’s denial of a motion to dismiss the proceedings because of his arrest. Defendant alleges that the arrest was invalid because no probable cause existed to justify a warrantless arrest. Defendant also alleges that all subsequent proceedings are thereby void.

In People v Tebedo, 81 Mich App 535; 265 NW2d 406 (1978), we held that an arrest warrant is not required for a valid arrest when an officer has reasonable cause to believe that there has been a felony committed and reasonable cause to believe that the person arrested committed it. The officer’s reasonable belief must be based on what he observes or what he learns from a reliable source. Information supplied from a reliable citizen source is enough to found a reasonable belief, People v Herrera, 19 Mich App 216; 172 NW2d 529 (1969). Such a belief may be founded upon a description related to police officers by a complainant, People v Timothy Jackson, 11 Mich App 630; 162 NW2d 114 (1968).

In the case at bar, the police officers arrested defendant while he was engaged in activity that was strikingly similar to the modus operandi of previous robberies. The arresting officers knew that previous felonies had been committed and based upon the information obtained from various complainants had reasonable cause to believe that defendant had probably perpetrated them. Defendant’s warrantless arrest was valid and the trial court did not err in denying the defendant’s motion to dismiss.

Defendant’s second allegation of error involves the trial court’s denial of a motion to suppress a lineup identification as impermissibly suggestive and as a violation of his constitutional rights. He alleges that the lineup was unduly suggestive because of age and height differences between defendant and the other participants. Defendant also alleges that he was forced to remain in one position throughout the lineup procedure and that the police officials conducting the lineup pointed defendant out to the viewing complainants.

In People v Wiejecha, 14 Mich App 486; 165 NW2d 642 (1968), we held that a defendant is entitled to an evidentiary hearing where the admissibility of evidence is challenged on constitutional grounds. In People v Piscunere, 26 Mich App 52; 181 NW2d 782 (1970), we extended this rule to a defendant’s claim of a constitutionally improper lineup. See also People v Reynolds, 93 Mich App 516; 286 NW2d 898 (1979).

The standard of review in such an evidentiary hearing requires that the identification procedure followed must not be so unnecessarily suggestive and conducive to irreparable mistaken identification that defendant is denied due process of law, Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967). The trial court must look at the totality of circumstances surrounding the lineup identification procedure. Foster v California, 394 US 440; 89 S Ct 1127; 22 L Ed 2d 402 (1969). An examination of the record in the instant case reveals that the lineup procedure and composition thereof were free of any taint or suggestion. The physical characteristics of the participants involved in the lineup were not so unduly suggestive as to prejudice defendant.

Defendant alleges that a mole-type scar on his right cheek precluded the selection of any of the other lineup participants and that lack of precautions to cover such scar was error.

In People v Mack, 21 Mich App 96; 174 NW2d 857 (1970), we found in an analogous situation that presence of a scar was not enough to vitiate the lineup identification procedure. See People v Lloyd, 5 Mich App 717; 147 NW2d 740 (1967). Defendant’s scar alone was not so significant as to preclude identification based upon other physical characteristics.

In People v Rivard, 59 Mich App 530; 230 NW2d 6 (1975), we held that the burden rests with the defendant to factually support a claim that the lineup was impermissibly suggestive, when counsel is present. The record of the case at bar indicates that counsel was present throughout the lineup procedure and identification process. Testimony relating to defendant’s allegations of suggestions promoted by police and inability to move to other positions in the lineup was specifically refuted by testimony of counsel, the police officials conducting the lineup, and the victims viewing the lineup. Counsel present at the lineup indicated that the procedure was fair and complied with the mandate of United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). We find no merit in defendant’s allegation, and hold that the trial court’s findings were proper.

Defendant’s third allegation of error involves the exercise of the trial court’s discretion in allowing into evidence the testimony of a similar-act witness, David Hall.

The people offered the evidence of a prior similar act for the purpose of identifying defendant as the perpetrator of the charged offense via the "signature” of a common scheme or plan. In the prior act, defendant accosted David Hall as he was getting into his car after work (at 5:45 p.m.) in a parking lot close to the Blue Cross-Blue Shield parking structure. Defendant climbed into the back seat and ordered Hall to drive (for approximately 15 minutes) to a distant area where he was ordered to take off his jacket and was robbed.

On March 23, 1978, Kittrell left work at Blue Cross at about 7:30 p.m., drove his van out of the Blue Cross-Blue Shield parking structure when defendant moved from the back of the van, placed a purported weapon to his head, and ordered him to drive to the same distant area where Kittrell was ordered to disrobe. He was then robbed.

The Michigan Supreme Court has recently clarified the circumstances under which similar-act evidence is admissible. People v Major, 407 Mich 394; 285 NW2d 660 (1979). First, it must be probative of one or more of the statutorily specified purposes, and one or more of those purposes must be material, that is, a proposition "in issue” in the case. 407 Mich 394, 400. Then, there should be direct proof of three propositions from which a fourth is inferable: 1) that the manner in which the criminal act in question or some significant aspect of it was performed bore certain distinguishing, peculiar or special characteristics; 2) that certain specific similar acts, performed contemporaneously with or prior to or subsequently to the act in question, bore the same distinguishing, peculiar or special characteristics; 3) that the similar acts were performed by the defendant; and 4) that, accordingly, the crime in question was committed by the defendant. 407 Mich 394, 398.

We believe the similar-act evidence in the present case meets the admissibility requirements of Major, supra. First, it is probative of one of the statutorily specified purposes, i.e., scheme, plan or system. Scheme, plan or system is material in this case because defendant has placed his identity as the perpetrator of the alleged robbery in issue. Identity clearly may be proved by the use of similar-act evidence. People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976). Second, the present evidence meets the three-proposition test because there are distinctive characteristics common to the acts which constitute a "signature” identifying defendant as the perpetrator.

We hold that the trial court did not err in admitting this evidence. We reject defendant’s claim that the trial court must specifically balance the probative value of the evidence against its prejudicial effect on the record. It is well known to trial courts that any evidence may be excluded when its prejudicial effect outweighs its probative value. MRE 403. However, the Michigan Supreme Court has never expressly required such an exer- » cise of discretion on the record when evidence of a prior similar act is sought to be admitted. We conclude that the trial court’s exercise of discretion was sufficient. Further, from our review of the record, we believe the probative value of the evidence is not substantially outweighed by any tendency to unduly prejudice defendant.

Defendant’s fourth allegation of error involves the admission into evidence of prior consistent statements of Thomas Kittrell, David Hall, and police officers. Defendant alleges that such statements were hearsay and error resulted from their admission.

Defendant has not preserved this issue for appeal because of the failure to object in the trial court below, People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958), and People v Ferrazza, 18 Mich App 680; 171 NW2d 658 (1969). Moreover, in People v Sanford, 402 Mich 460; 265 NW2d 1 (1978), the Supreme Court held in interpreting MRE 801(d)(1) that evidence of a witness’s prior statement of identification is not hearsay. We find no error in the admission of such prior consistent statements of Thomas Kittrell and David Hall.

It is generally held that the prior consistent statements of police officers are admissible only in limited circumstances. Such statements may be used to show the circumstances surrounding the identification procedure in an investigative process and are admissible in the sound discretion of the trial court, People v Sanford, supra. Furthermore, prior consistent statements of police officers relating to identification and description are not admissible, because they tend to bolster previous testimony of eyewitnesses. As such, there is a recognition of an inherent danger in their admission, People v Sanford, supra.

Therefore, normally the admission of such prior consistent statements would be prejudicial. However, in the case at bar we believe there was no error because no objection was made to the admission of such evidence and the defense relied on the admission of such evidence in presenting its theory of the case to the jury and in conducting its trial strategy.

Defendant’s fifth allegation of error involves the absence of counsel when defendant was arraigned. Defendant alleges that such a proceeding is a critical stage in the criminal prosecution. Defendant also alleges that he was deprived of the opportunity of consulting with counsel at the lineup identification and that such deprivation constituted a denial of effective assistance of counsel.

In People v Killebrew, 16 Mich App 624; 168 NW2d 423 (1969), we held that the arraignment on the warrant was not a critical stage in the criminal prosecution and therefore the presence of counsel is not required pursuant to Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967). In People v Szymanski, 52 Mich App 605; 218 NW2d 95 (1974), we held that the fact that defendant was represented by appointed counsel does not vitiate the lineup. The procedure whereby counsel is appointed to observe lineups for suggestiveness, but without representing particular clients, has been approved in United States v Randolph, 145 US App DC 314; 443 F2d 729 (1970).

Testimony of counsel in the instant case indicates that the lineup identification procedure was fair and therefore we find no merit to defendant’s allegation.

Defendant’s sixth allegation of error involves the prosecution’s statements at the jury voir dire. Defendant alleges that the prosecution appealed to the jury to go outside the evidence to convict him. The record does not indicate that the inquiry complained of denied defendant a fair trial.

Defendant’s final allegation of error involves the discretion of the trial judge in sentencing defendant. Defendant alleges that the trial judge relied upon inaccurate information contained in the presentence probation report. An examination of the record indicates that the trial court recognized the error contained in the presentence report and did not improperly rely thereon in sentencing defendant. See People v Hildabridle, 45 Mich App 93; 206 NW2d 216 (1973).

Affirmed.