author: J. H. Gillis, P.J.

text:
    NORTHWOOD APARTMENTS v CITY OF ROYAL OAK
    Docket Nos. 78-5034, 78-5035.
    Submitted April 3, 1980, at Detroit.—
    Decided July 22, 1980.
    Northwood Apartments, a partnership, petitioned the Michigan Tax Tribunal for a review of the 1975 valuation of its apartment complex and subsequently amended its original petition to include tax years 1976, 1977, and 1978. Respondent City of Royal Oak argued that the Tribunal lacked jurisdiction to review the 1977 valuation due to petitioner’s failure to protest, and the Tribunal so ruled. The Tribunal reduced the valuations of the property for the remaining years. Respondent School District of the City of Royal Oak then filed a motion to intervene which was denied by the Tribunal. Both the city and the school district appeal; petitioner cross-appeals. Held:

    1. The Tribunal did not commit an error of law or adopt a wrong principle in determining the valuations of petitioner’s property.
    2. Intervention in a proceeding before the Michigan Tax Tribunal is discretionary with the Tribunal, and the Tribunal did not abuse its discretion in denying the motion of the school district to intervene since respondent’s delay in filing the motion after knowledge of the proceeding was unreasonable, and no satisfactory excuse for the delay was shown.
    3. Petitioner was not required to notify the school district of the amendment to its original petition, and its failure to do so was, thus, no jurisdictional bar to the Tribunal’s consideration of the assessments with respect to tax years 1977 and 1978.
    4. The statutory requirement of protest to the local board of review as a prerequisite to Michigan Tax Tribunal jurisdiction is constitutional as applied to the petitioner, and the Tribunal’s determination that petitioner did not protest before the board in 1977 was without error.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 820. 72 Am Jur 2d, State and Local Taxation § 787.

       72 Am Jur 2d, State and Local Taxation § 753.

       72 Am Jur 2d, State and Local Taxation § 1142.

       72 Am Jur 2d, State and Local Taxation § 1141.

       72 Am Jur 2d, State and Local Taxation § 802.

       72 Am Jur 2d, State and Local Taxation § 1138.

      Affirmed.
    1. Taxation — Tax Tribunal — Appeal — Valuation — Real Property — Scope of Review.
    The Court of Appeals, in reviewing a valuation decision of the Michigan Tax Tribunal, is bound by the factual determinations of the Tribunal and is limited to questions of whether the Tribunal committed an error of law or adopted a wrong principle.
    2. Taxation — True Cash Value — Method of Determination — Fair Market Value.
    Any method for determining true cash value which is recognized as accurate and reasonably related to fair market valuation is an acceptable indicator of true cash value.
    3. Taxation — Appeal — Tax Tribunal — Governmental Units — Right to Intervene — Statutes — Discretionary Application.
    A governmental unit which receives tax funds from a petitioner who is appealing a property valuation by a local board of review before the Michigan Tax Tribunal does not, by statute, have an absolute right to intervene where the use of the word "may” in the language of the statute indicates that it is discretionary, absent other considerations which would compel a contrary conclusion (MCL 205.744; MSA 7.650[44]).
    4. Taxation — Appeal — Tax Tribunal — Intervention — Limitations — Unreasonable Delay — Statutes.
    There are no statutory limitations on the date of intervention in an appeal to the Michigan Tax Tribunal; however, an intervenor must be diligent, and any unreasonable delay after knowledge of the action will justify a denial of intervention where no satisfactory excuse is shown for the delay (MCL 205.744; MSA 7.650[44]).
    5. Taxation — Original Petitions — Tax Tribunal — Notification of Local School Districts — Amendments — Statutes.
    The statutory requirement that a local school district be notified of the filing of a petition with the Michigan Tax Tribunal relates only to original petitions and not to amendments to such petitions (1976 PA 365; MCL 205.735; MSA 7.650[35]).

      6. Taxation — Protest of Assessment — Taxpayer — Appearance — Statutes.
    A taxpayer does not satisfy the statutory requirement of protest of assessment of property by appearing when the local board of review is hearing another case and seeking to be heard immediately (MCL 211.30; MSA 7.30).

      Hyman, Gurwin, Nachman, Friedman & Winkle-man (by Thomas J. Beale), for petitioner.

      Shifman & Goodman, P.C. (by David M. Black), and Daniel Sawicki, City Attorney, for respondents.
    Before: J. H. Gillis, P.J., and Allen and Beasley, JJ.
   J. H. Gillis, P.J.

The City of Royal Oak and the School District of Royal Oak appeal as of right from two decisions of the Michigan Tax Tribunal. Petitioner cross-appeals raising a completely separate issue.

The property involved here is a 121-unit apartment complex. The dispute centers on the valuation placed on that property by the respondent City of Royal Oak (hereinafter referred to as "City”). The tax years involved are 1975, 1976, 1977, and 1978. For those years, the City appraised the property at true cash values of $1,610,000, $1,610,000, $1,708,000, and $2,058,017 respectively.

In 1975, Northwood petitioned the Tax Tribunal for a review of the 1975 valuation of the apartment complex. Subsequent thereto, the original petition was amended for purposes of including tax years 1976, 1977, and 1978. At the commencement of the hearing on the petition, the City argued that Northwood had failed to protest the 1977 valuation before the City’s board of review and that, accordingly, the Tax Tribunal was without jurisdiction to review the valuation as to that year. MCL 205.737(4); MSA 7.650(37)(4). The Tribunal took preliminary testimony on the issue and ruled that petitioner had not made a sufficient showing of protest to the local board of review and that, therefore, the Tribunal lacked jurisdiction as to the 1977 valuation. This ruling is the subject of petitioner’s cross-appeal and will be discussed further in this opinion.

The Tribunal then considered the valuations for the remaining years. In a September 11, 1978, opinion, the Tribunal reduced the valuation of the property as follows: 1975 — $1,250,000, 1976— $1,250,000, and 1978 — $1,500,000. Judgment was entered pursuant to that opinion on the same date. On September 29, 1978, the respondent School District of the City of Royal Oak (hereinafter referred to as "School District”) filed a motion to intervene. This motion was denied in an order dated November 9, 1978. That denial together with the Tribunal’s reductions of valuation is the subject of respondents’ joint appeal.

At the outset, we emphasize that this Court’s authority to review a valuation decision of the Tax Tribunal is very limited. We are bound by the factual determinations of the Tribunal. Ironwood v Gogebic County Board of Comm’rs, 84 Mich App 464, 469; 269 NW2d 642 (1978). Where, as here, no fraud is alleged, our review is limited to the questions of whether the Tribunal committed an error of law or adopted a wrong principle. Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229, 231; 276 NW2d 566 (1979), Consumers Power Co v Port Sheldon Twp, 91 Mich App 180, 184; 283 NW2d 680 (1979), Const 1963, art 6 § 28.

For the purposes of taxation, property is to be assessed in accordance with its true cash value. Const 1963, art 9, § 3, Ramblewood Associates v Wyoming; 82 Mich App 342, 344; 266 NW2d 817 (1978). True cash value is defined as: "[T]he usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price which could be obtained for the property at private sale, and not at forced or auction sale.” MCL 211.27; MSA 7.27. The legislative test, however, is not exclusive. Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 129; 265 NW2d 182 (1978), lv den 403 Mich 848 (1978) .

The concept of true cash value is synonymous with fair market value. CAF Investment Co v State Tax Comm, 392 Mich 442, 450; 221 NW2d 588 (1974). Any method for determining true cash value which is recognized as accurate and reasonably related to fair market valuation is an acceptable indicator of true cash value. Safran Printing Co v Detroit, 88 Mich App 376, 380; 276 NW2d 602 (1979) .

The parties, as well as the Tribunal, agree that the capitalization of income method is the proper valuation method to be utilized here. We concur. The property in question is income-producing property. The capitalization of income method is the "method which is most appropriate to the individual case as the particular facts may indicate”. Consumers Power Co, supra, 130. See CAF Investment Co, supra.

The capitalization of income method is based on the premise that there is a relation between the income a property can earn and the value of that property. This method estimates the present value of the amount of net income the property is expected to generate over its remaining useful life. Two techniques by which to apply this method are available. One is the annuity capitalization technique. An explanation of this technique is detailed in Consumers Power Co, supra, 134. This technique simply discounts the total of all future income. In the present case, one cannot accurately estimate the total of future income. Market factors affecting the desirability of the apartments in question render an estimate of future income necessarily speculative. Accordingly, the Tax Tribunal properly declined to utilize this technique.

A second technique for determining this value involves dividing the net income by the capitalization rate. We find this technique superior, under the facts of the present case, because it reflects actions of typical buyers and sellers in the current local market. The dispute here centers on the formula by which the capitalization rate was calculated.

The City contends that the rate is properly determined by comparing abstracted overall capitalization rates from similar properties. The petitioner contended and the Tribunal agreed that the mortgage-equity formula is properly applied. We note that this formula is also known as the band-of-investment formula.

The City’s formula divides the net income of comparable properties by the fair market value (sale price) of those properties to compute a capitalization rate. The problem with this method lies in finding comparable properties. A small difference in the comparable property and the property in question will be reflected in the final estimate of fair market value.

The mortgage-equity formula, on the other hand, reflects a rate which accounts for changes in interest rates, mortgage terms, and cash flow requiréments. This formula utilizes comparable properties only for the purpose of determining the cash flow rate. This rate is but one of several components in the formula. Hence, any difference between the comparables and the property in question will effect a smaller error in the estimate of fair market value. For these reasons we conclude that the Tribunal properly utilized the mortgage-equity formula to determine the capitalization rate. It cannot be said that the Tribunal committed an error of law or adopted a wrong principle in utilizing this formula.

The City also contends that the Tribunal erred in permitting the petitioner to deduct its actual expenses in calculating net income. The City argues that an expense ratio based on market data should have been utilized. The contention is factually and legally erroneous.

An examination of the Tribunal opinion, see infra, discloses that petitioner’s actual expenses were adjusted downward. The claim that petitioner was allowed to deduct those actual expenses in calculating net income is, thus, factually in error. Furthermore, even had those expenses been allowed in full, such allowance would have been proper. MCL 211.27; MSA 7.27, requires that in determining value the "present economic income” of structures shall be considered. Economic income as used in the statute means actual income. CAF Investment Co, supra, 454. Since expenses are but elements of net income, we conclude that actual expenses may properly be utilized.

The City next contends that the Tribunal erred in permitting reserves for the replacement of capital items to be deducted as an expense item. The contention is without merit. By statute, the assessor must use the state tax assessor’s manual as a guide in assessing property. MCL 211.721; MSA 7.40. Reserves for replacement are expressly allowed as an expense in the manual. Michigan State Tax Comm, Assessor’s Manual (1972), ch. 10, Capitalization of Income: The Income Approach Applied to an Apartment Building, p 3. See also, American Institute of Real Estate Appraisers, The Appraisal of Real Estate (Chicago: Am Inst of Real Estate Appraisers, 7th ed, 1978).

The City next contends that the Tribunal failed to make sufficient findings of fact concerning petitioner’s expenses. We disagree.

Section 51 of the Tax Tribunal Act, MCL 205.751; MSA 7.650(51), and §85 of the Administrative Procedures Act, MCL 24.285; MSA 3.560(185), made applicable to the Tribunal by MCL 205.726; MSA 7.650(26), require the Tribunal to state the factual and legal basis for its decisions in order to facilitate appellate review. Almira Twp v Benzie County Tax Allocation Board, 80 Mich App 755, 760-761; 265 NW2d 39 (1978).

In the present case, the Tribunal found that:

<<* * *[T]he Tribunal is not convinced that the allowable expenses contended by Petitioner are fully justifiable and has therefore adjusted them downward in arriving at its finding of true cash value.”

Under the circumstances of the present case, we deem this finding adequate for appellate review. With respect to expenses, the City contests only the Tribunal’s propriety of permitting the deduction of actual expenses in calculating net income. This we have found to be proper. See supra. The City does not contest the reasonableness of the amount of expenses allowed. Accordingly, a specification as to the amount by which each expense was reduced is not essential to our review. Furthermore, the Tribunal’s determination in this regard is one of fact. We are bound by that determination. Consolidated Aluminum, supra, 231-232.

The respondent School District contends that the Tax Tribunal erred in denying its motion to intervene. It is contended that the motion should have been granted as- of right and, in the alternative, that the Tribunal abused its discretion in denying the motion.

MCL 205.744; MSA 7.650(44), provides in relevant part:

"* * * the tax tribunal may permit the intervention or impleading of any governmental unit which receives tax funds from the petitioner who is making the appeal.”

Unless other considerations compel a contrary conclusion, the use of the word "may” indicates that the statute is discretionary. Law Dep’t Employees Union v City of Flint, 64 Mich App 359, 368; 235 NW2d 783 (1975). Respondent having failed to cite to this Court any "other considerations” which compel a contrary conclusion, we hold that the statutory language does not create an absolute right to intervene on the part of the School District.

No time limitations on the date of intervention are set forth in MCL 205.744; MSA 7.650(44). See Consumers Power Co, supra, 159. However, an intervenor must be diligent, and any unreasonable delay after knowledge of the action will justify a denial of intervention where no satisfactory excuse is shown for the delay. School Dist of the City of Ferndale v Royal Oak Twp School Dist No 8, 293 Mich 1, 10-11; 291 NW 199 (1940).

In the present case, the School District was aware that the taxpayer had filed a petition concerning its 1975 assessment by virtue of communications with the City. The School District, nevertheless, waited approximately three years to file its motion to intervene. Furthermore, that motion was filed four months after the Tribunal hearing and two and one-half weeks after the Tribunal’s judgment was entered. We find that this constitutes an unreasonable delay sufficient to justify the Tribunal’s denial of the motion. The School District proffers as an excuse its asserted unawareness of the magnitude of the action because it was unaware that the appeal also affected the 1976, 1977, and 1978 tax years. See infra. We are unpersuaded by this excuse. It was patently foreseeable that petitioner’s appeal of the 1975 assessment would affect future years’ tax liability as well. The Tribunal did not abuse its discretion in denying the motion to intervene.

The respondents lastly contend that petitioner’s failure to serve the School District with copies of its motions to amend its petition so as to add the tax years 1977 and 1978 constituted a jurisdictional bar to the Tribunal’s consideration of the assessments with respect to those years. We disagree.

Petitioner filed its original petition with the Tax Tribunal on May 1, 1975. Its motion to amend that petition to include the 1976 tax year was filed on May 18, 1976. The motion to include the 1977 tax year was filed on June 6, 1977. The 1978 motion was filed on May 16, 1978. The motions to amend were granted by the Tribunal.

At the time of the filing of the original petition, § 35 of the Tax Tribunal Act, MCL 205.735; MSA 7.650(35), did not require that a copy of the petition be sent to the local school district. 1976 PA 365, effective December 23, 1976, amended § 35 so as to require that a copy of the petition be sent to the local school district. Respondents claim that the amendment of a petition to add a subsequent tax year is tantamount to the commencement of a new proceeding and that, accordingly, a copy of the motion to amend the petition must be sent to the local school district.

The issue presented is whether the 1976 amendment to § 35 which requires that the local school district be notified of the filing of the petition with the Tribunal similarly requires that the district be notified of the filing of motions to amend that petition so as to include subsequent tax years. The answer is that it does not. The notification provision relates only to original petitions and not to amendments to such petitions.

We reach this conclusion for the following reasons:

1) Sections 35(4), MCL 205.735(4); MSA 7.650(35X4), and 37(4), MCL 205.737(4); MSA 7.650(37)(4), of the Tax Tribunal Act provide that a petition may be amended. Neither section requires notice to a school district of an amendment. The statutory language, thus, supports our conclusion. Had the Legislature intended that notification to the local school district of amendments be required, it could have amended these sections at the same time that it enacted 1976 PA 365 to effect this contended requirement. We choose not to create a statutory requirement by inference.

2) The express statutory procedure for amending its petition was followed by the taxpayer.

3) The Tribunal construed the above statutory sections as not requiring notification of amendments. As the Tribunal is the agency charged with administering the act, its interpretation is entitled to be accorded appropriate weight by this Court. Roosevelt Oil Co v Secretary of State, 339 Mich 679; 64 NW2d 582 (1954), Miller v Dunn Paper Co, 47 Mich App 471; 209 NW2d 519 (1973), Wemmer v National Broach & Machine Co (After Remand), 89 Mich App 312, 320-321; 280 NW2d 845 (1979).

Petitioner, by way of cross-appeal, raises two additional issues. Petitioner first contends that the statutory requirement of protest to the local board of review, MCL 205.735; MSA 7.650(35), MCL 205.737; MSA 7.650(37), as a prerequisite to Tax Tribunal jurisdiction is unconstitutional as a denial of due process of law. The argument, basically, is that the protest requirement is unconstitutional because the assessment is only tentative at the time the local board of review meets. The assessment may be altered by application of county and state equalization processes. The application of these processes occurs after the time for a protest before the local board of review has passed. Therefore, it is claimed that, if a taxpayer is forced to decide whether or not to protest his assessment before that assessment is final, a violation of due process has been established.

For the purpose of the instant case, the validity or invalidity of petitioner’s argument need not be addressed. Here, petitioner is not objecting to an assessment which has been increased by application of either equalization process. Rather, petitioner claims only that the City’s assessment for each of the respective tax years exceeded 50% of the property’s true cash value in contravention of Const 1963, art 9, § 3. The information required in order to decide whether or not the City’s assessment should be appealed was available to the taxpayer prior to the time required for protest to the local board of review. Accordingly, the statutory requirement of protest to the local board of review is constitutional as applied to the petitioner.

Having concluded that the statutory requirement of a protest to the local board of review is constitutional as applied to the petitioner, we next consider whether the Tribunal properly determined that petitioner’s actions in 1977 did not constitute a protest before the board of review.

Petitioner’s managing partner, Joseph Dresner, testified that in 1977 he received a notice from the City setting forth the days on which the board of review would meet. He testified that he went to the Royal Oak City Hall where the board of review was meeting on one of the days stated in the notice. Mr. Dresner requested the opportunity to address the board but was told that the agenda for that day was full. He was given an appointment to meet with the board on March 28, 1977. On or just prior to March 28th, Mr. Dresner determined that he would be unable to appear in person. He therefore prepared a letter of protest, MCL 211.30; MSA 7.30, and directed a member of his staff to deliver it to the board. No personal appearance was made on behalf of the petitioner on March 28, 1977. The Tribunal found that there was insufficient evidence to indicate that the letter of protest was received and concluded that, therefore, it lacked jurisdiction as to the 1977 valuation.

Initially, we note that the petitioner does not contest the factual determination that the letter was not shown to have been delivered. The question presented is whether Mr. Dresner’s initial personal appearance was a sufficient protest. We find that it was not.

MCL 211.30; MSA 7.30, and MCL 211.3a; MSA 7.30(1), provide that the local board of review shall, for the purpose of reviewing assessments, meet on the first Monday in April. In the present case, the board of review met on March 14, 1977, and continued in session until April 7, 1977. The statutory meeting requirement was thus met.

The problem here is that it is undisputed that the petitioner did go to the place where the board was meeting for the purpose of protesting the 1977 assessment but, due to the number of assessments being protested, was unable to address the board. Petitioner was given an appointment which was not kept. Do these facts constitute a sufficient protest? We think not.

Here, the board of review was in session during the statutorily required period. However, because of the volume of assessment protests, the board had to schedule appointments to accommodate all protesting taxpayers. Petitioner was given an appointment but failed to attend on the appointed date. Under these circumstances, we hold that the petitioner did not protest to the board of review. One cannot satisfy the requirement of protest by appearing when the board is hearing another case and seeking to be heard immediately. Furthermore, the board is not required to seek out a taxpayer who chooses not to keep his appointed date. The Tribunal’s determination that petitioner did not protest before the local board of review in 1977 so as to invoke the Tribunal’s jurisdiction as to that tax year was without error.

Affirmed.

       See CAF Investment Co v Saginaw Twp, 79 Mich App 559; 262 NW2d 863 (1977), MCL 205.753; MSA 7.650(53).


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE v JACKSON
    Docket No. 43042.
    Submitted June 19, 1980, at Detroit.
    Decided July 22, 1980.
    Leave to appeal denied, 409 Mich 930.
    Joseph Jackson was convicted of obtaining money under false pretenses and uttering and publishing in Detroit Recorder’s Court, Verne C. Boewe, J. The defendant appeals, alleging that:
    (1). his uttering and publishing convictions were based upon an improper statutory provision; (2) the evidence proffered in support of his convictions was insufficient; (3) errors occurred in the jury instructions; and (4) the trial judge engaged in improper questioning and prejudicial commentary while in the jury’s presence. Held:

    1. The prosecutor may not pick and choose under which of the statutes on forgery and uttering and publishing he will prosecute. The crimes set forth in the sections on forgery of notes issued for debt of state, forgery of bank bills and notes, uttering counterfeit notes and possession of counterfeit bank bills are indictable solely under those sections and not under the section on forgery of records and other instruments or the section on uttering and publishing forged instruments.
    2. The defendant could only be prosecuted under the statute specifically prohibiting uttering and publishing state issued instruments, since he was charged with uttering and publishing payroll'checks issued by the City of Detroit. The defendant’s uttering and publishing convictions are vacated.
    3. Alleged errors in jury instructions that are neither objected to nor made the basis for a requested curative instruction remain preserved for appeal only where the errors resulted in manifest injustice. This standard was not met in this case.
    4. A trial judge has wide discretion in the conduct of a trial and may properly participate in the questioning of a witness. The judge may not prejudice the rights of the defendant and where a case is being tried before a jury the judge must be especially careful that his questions or comments do not indicate partiality. The defendant was not denied a fair trial.

      References for Points in Headnotes

       36 Am Jur 2d, Forgery § 39. 41 Am Jur 2d, Indictments and Informations §§ 226-231.

       5 Am Jur 2d, Appeal and Error § 891.

       75 Am Jur 2d, Trial § 88.

      Affirmed in part and reversed in part.
    1. Forgery — Uttering and Publishing — Prosecuting Attorneys — Indictment and Information.
    A prosecutor is precluded from picking and choosing under which of the statutes on forgery and uttering and publishing he will prosecute; the crimes set forth in the sections on forgery of notes issued for debt of state, forgery of bank bills and notes and uttering counterfeit bank bills are indictable solely under those sections and not under the section on forgery of records and other instruments or the section on uttering and publishing forged instruments (MCL 750.249 et seq.; MSA 28.446 et seq.).

    2. Jury — Instructions — Error — Appeal.
    Alleged errors in jury instructions that are neither objected to at trial nor made the basis for a requested curative instruction remain preserved for appeal only where the errors resulted in manifest injustice.
    3. Judges — Witnesses — Questioning — Partiality.
    A trial judge has wide discretion in the conduct of a trial and may properly participate in the questioning of a witness, but the judge may not prejudice the rights of the defendant and where a case is being tried before a jury the judge must be especially careful that his questions or comments do not indicate partiality.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

      Henry & Dillard, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and Cynar and J. E. Townsend, JJ._

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

   N. J. Kaufman, P.J.

Defendant was convicted by a Detroit Recorder’s Court jury of one count of obtaining money under false pretenses, MCL 750.218; MSA 28.415, and two counts of uttering and publishing, MCL 750.249; MSA 28.446. He was sentenced to four to ten years imprisonment on the false pretenses conviction and 4 to 14 years on each of the uttering and publishing convictions. From these convictions and sentences, defendant appeals as of right under GCR 1963, 806.1.

Defendant raises four allegations of error in this appeal, which we shall address seriatim. First, defendant contends that his uttering and publishing convictions were based upon an improper statutory provision. As stated, defendant was convicted under MCL 750.249; MSA 28.446, which provides:

"Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fourteen [14] years.

Defendant argues that, since the items allegedly uttered and published were City of Detroit payroll checks, instead of being charged under the aforementioned statute, he should have been charged under MCL 750.253; MSA 28.450, which provides:

"Any person who shall utter or pass, or tender in payment as true, any such false, altered, forged or counterfeit note, certificate or bill of credit for any debt of this state, or any of its political subdivisions or municipalities, any bank bill or promissory note, payable to the bearer thereof, or to the order of any person, issued as aforesaid, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment of not more than five [5] years or by fine of not more than two thousand five hundred [2,500] dollars.”

We agree. In People v Hall, 391 Mich 175; 215 NW2d 166 (1974), the Supreme Court considered the same statutory provisions in controversy herein. In that case, the Court noted that § 249 was a general statutory provision prohibiting the forgery and uttering and publishing of most types of written instruments and of all negotiable instruments, while the proscription of § 250 was limited to instruments issued by the state or any of its political subdivisions or municipalities. The Court then reasoned that the specific reference in § 253 to instruments issued by the state or its political subdivisions had the effect of removing the alteration of an instrument issued by the state or its subdivisions from the general coverage of § 249, and held that the conviction under that section was invalid. See Hall, supra, 189-190. Additionally, the Court stated at 190:

"It is not possible under these statutes, properly construed, for the Prosecutor to pick and choose under which statute he will prosecute. The items set forth in § 250, et seq. are indictable solely under those sections, and not under §§ 248 and 249.”

The instant defendant was charged with uttering and publishing state issued instruments; namely payroll checks issued by the City of Detroit. This precluded any prosecutorial discretion in the matter. The defendant could be properly prosecuted only under MCL 750.253; MSA 28.540. Plaintiff’s counter argument suggests that, as per Hall, § 250 et seq. should be interpreted to encompass only nonnegotiable instruments. This view finds no support in post Hall decisions however. See People v Richard Ford, 95 Mich App 412; 291 NW2d 60 (1980), People v Beckner, 92 Mich App 166; 285 NW2d 52 (1979), and People v Shears, 84 Mich App 175; 269 NW2d 519 (1978). Accordingly, we vacate defendant’s uttering and publishing convictions and the sentences imposed thereon.

Next, defendant challenges the sufficiency of the evidence proffered in support of his convictions. With respect to defendant’s "obtaining money under false pretenses” conviction, we have reviewed the evidence adduced and found that it was sufficient to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979).

Next, defendant contends that several errors occurred in the jury instructions. However, we note that defendant neither objected nor requested a curative instruction regarding these alleged instructional errors. Therefore, any error remains preserved for appeal only if it resulted in manifest injustice. MCL 769.26; MSA 28.1096, People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977), People v Clemons, 91 Mich App 68, 73; 282 NW2d 838 (1979). We do not find this standard met in the case at bar.

Finally, defendant argues that the trial judge engaged in improper questioning and prejudicial commentary while in the jury’s presence. A trial judge has wide discretion in the conduct of a trial and may properly participate in the questioning of a witness. The judge may not, by doing so, prejudice the rights of the defendant. One proper role of questioning by the trial judge is to clarify points and to elicit additional relevant information. People v Hanna, 85 Mich App 516, 520; 271 NW2d 299 (1978). Where a case is being tried before a jury, however, the judge must be especially careful that his questions or comments do not indicate partiality. An observation of the Michigan Supreme Court in People v King, 384 Mich 310, 315; 181 NW2d 916 (1970), becomes apt:

"While the weight of a trial judge’s word may not equal the ton ascribed to the word of the President of the United States, he should remember how heavily it weighs with the jury.”

See also People v London, 40 Mich App 124, 128; 198 NW2d 723 (1972).

In People v Smith, 64 Mich App 263, 267; 235 NW2d 754 (1975), this Court noted:

"Appellate courts in this jurisdiction have carefully scrutinized substantial claims of judicial partiality and have not required a specific showing of prejudice where such partiality is demonstrated. A new trial has been ordered where a judge’s questions and comments 'may well have unjustifiably aroused suspicion in the mind of the jury’ as to a witness’ credibility, (emphasis supplied), Simpson v Burton, [328 Mich 557, 563-564; 44 NW2d 178 (1950)] and where partiality 'quite possibly could have influenced the jury to the detriment of defendant’s case’, (emphasis supplied), People v Roby, 38 Mich App 387, 392; 196 NW2d 346 (1972).”

Our review of the specific instances of judicial misconduct alleged by the defendant reveals that such occurred, for the most part, outside the presence of the jury. Moreover, the incident that occurred in front of the jury was a relatively brief one, provoked by defendant’s statements and his adamancy in refusing to answer questions on cross-examination. We do not find that this incident was sufficiently prejudicial so as to deny the defendant a fair trial under the standard set forth in Smith, supra.

In view of the foregoing, we affirm defendant’s "obtaining money under false pretenses” conviction but set aside his uttering and publishing convictions because of his prosecution under an. improper statute.


author:
R. B. Burns, J.
      Danhof, C.J.,

text:
    MALE v GRAND RAPIDS EDUCATION ASSOCIATION
    Docket No. 43290.
    Submitted February 6, 1980, at Grand Rapids.—
    Decided July 22, 1980.
    Leave to appeal applied for.
    David Male, a tenured teacher with the Grand Rapids public school system, brought an action for declaratory judgment in Kent Circuit Court seeking to have declared illegal a certain assessment by the Grand Rapids Education Association made as part of the association’s dues for members and as part of the financial responsibility fee for nonmembers. Plaintiff was not a member of the Grand Rapids Education Association (GREA), the exclusive bargaining agent for the teachers employed by the Grand Rapids school system for kindergarten through twelfth grade; rather, plaintiff payed a yearly financial responsibility fee to GREA equivalent to the dues by GREA members. In 1975, GREA informed plaintiff that for the 1975-1976 school year his financial responsibility fee would include a ten dollar assessment for a mandatory teacher assistance program fund (TAP Fund). Because plaintiff believed that the TAP Fund was intended to aid teachers in illegal strikes, plaintiff refused to pay that portion of his financial responsibility fee that represented the TAP Fund assessment. Pursuant to the collective bargaining assessment, plaintiff’s employment could be terminated by reason of his failure to pay his financial responsibility fee in full.
    In addition to seeking to have the TAP Fund assessment declared illegal, plaintiff sought in his circuit court action against GREA, the Michigan Education Association and the Board of Education for the City of Grand Rapids to have his threatened discharge from employment declared illegal and to have his action declared to be a class action for the purpose of securing the refund of TAP Fund assessment for all those persons who were required to pay the same, including GREA members. Cross motions for summary judgment were filed. The trial court, John T. Letts, Jr., held that the TAP Fund assessment furnished support to illegal strikes and was thus illegal and that the plaintiff’s threatened discharge for nonpayment to that fund was likewise illegal. The circuit court refused to certify plaintiff’s action as a class action and denied plaintiff’s requested award of attorney fees. Defendants GREA and the Michigan Education Association appeal. Plaintiff cross-appeals. Held:

      References for Points in Headnotes
    [1,10] 48A Am Jur 2d, Labor and Labor Relations §§ 1771, 2034.
    [2] 59 Am Jur 2d, Parties § 54 et seq.

       59 Am Jur 2d, Parties § 58 et seq.

       59 Am Jur 2d, Parties §§ 63-65, 71-74.

       59 Am Jur 2d, Parties § 85.

       59 Am Jur 2d, Parties § 91.
    Attorney’s fees in class actions. 38 ALR3d 1384.

       59 Am Jur 2d, Parties §§ 51 et seq., 91.
    Attorney’s fees in class actions. 38 ALR3d 1384.

       73 Am Jur 2d, Summary Judgment §§ 1, 26, 27.

       48 Am Jur 2d, Labor and Labor Relations § 259 et seq.

       59 Am Jur 2d, Parties § 54.

      1. The TAP Fund, by assisting teachers who were not employed by reason of an illegal public teachers’ strike, constitutes an illegal strike fund. Being an illegal strike fund, plaintiff teacher was not obligated to pay the assessment for that fund and could not be discharged from his employment for his nonpayment of that portion of his fee that represented his contribution to the illegal fund.
    2. In Michigan, a class action may be maintained only when it is shown that: (1) there is an identifiable class; (2) the number of persons in that class is so large that it would be impracticable to bring them all before the court; (3) the person seeking to represent the class is a member of the class; (4) the interests of the class are adequately represented; (5) the rights sought to be enforced are several; (6) there is a common question of law or fact affecting the several rights; (7) a common relief is being sought; and (8) the maintenance of the case as a class action serves the convenient administration of justice.
    3. Plaintiff, to the extent that he seeks the return of the illegal TAP Fund assessments, is a member of the class of all those who paid those assessments, including members of GREA. In the absence of proof to the contrary, it will be assumed that plaintiff would adequately represent the rights of the class through qualified counsel.
    4. Because the class in question is potentially composed of 1800 members, the question to be resolved is common, the computation of any damages for each member of the class is simple and the recovery for each member is small, a class action serves the convenient administration of justice. The mere failure of other members of a class to intervene in a class action is no reason to disqualify the plaintiff from being the class representative.
    5. Attorney fees, while not normally awardable, are awardable in class actions. Such attorney fees may be awarded in class actions involving the return of an illegal union assessment and such award may be recovered from the fund created by the illegal assessments.
    6. The question of whether plaintiff should be allowed to maintain his action as a class action should be determined on the basis of the number of members of the class who desire to be included in the class. The matter, therefore, is remanded to the circuit court where adequate time shall be granted to permit other members of the class to opt into the action. The trial court shall determine, in accordance with the principles of equity, whether plaintiff should be awarded reasonable attorney fees, such determination depending upon the nature and extent of the benefit conferred upon the intervening class members.
    Remanded.
    Danhof, C.J., concurs with the conclusion that plaintiff could not be discharged from his employment for his failure to pay the disputed assessment; however, he would not reach that conclusion on the basis that the TAP Fund was an illegal strike fund, rather he would hold that, since the TAP Fund is outside the required functions of a union, the TAP Fund assessment is not a proper fee to be included in a financial responsibility fee. He would further hold that plaintiff is not a member of the same class as GREA members and, thus, could not properly bring a class action on their behalf.
    Opinion of the Court
    1. Labor Relations — Public Employees — Teacher Associations — Illegal Strikes — Assessments for Supporting Illegal Strikes — Validity — Enforcement of Unlawful Union Assessment.
    A fund maintained by an educational association for the purpose of assisting public school teachers who are on strike tends to encourage strikes which, by statute, are prohibited; accordingly, mandatory assessments for such a fund are illegal and teachers cannot be compelled, under threat of discharge pursuant to a collective bargaining agreement, to pay such an assessment as part of a mandatory financial responsibility fee.

      2. Actions — Class Actions — Requirements to Maintain a Class Action — Court Rules.
    A class action may be maintained pursuant to the Michigan court rules only when it is shown that: (1) there is an identifiable class; (2) the number of persons in that class is so large that it would be impracticable to bring them all before the court; (3) the person seeking to represent the class is a member of the class; (4) the interests of the class are adequately represented; (5) the rights sought to be enforced are several; (6) there is a common question of law or fact affecting the several rights; (7) a common relief is sought; and (8) the maintenance of the case as a class action serves the convenient administration of justice (GCR 1963, 208.1[3]).
    3. Actions — Class Actions — Membership in Class — Adequacy of Representation of Class Interests.
    A school teacher who has chosen not to join a teacher’s union but rather pay a financial responsibility fee in lieu of union dues is, for the purpose of bringing a class action testing the legality of mandatory strike fund payments, a member of the same class as the teachers who joined the union and, in the absence of proof to the contrary, will be assumed to adequately represent the rights of the class through qualified counsel.
    4. Actions — Class Actions — Convenient Administration of Justice.
    A class action serves the convenient administration of justice where the class is potentially composed of 1800 members, the common question is the legality of certain union dues and the computation of damages as to each member of the class is simple; a class action is particularly suitable where the recovery for each member of the class is small.
    5. Actions — Class Actions — Intervention of Other Class Members — Representation of the Class.
    The mere failure of other members of a class to intervene in a class action is no reason to disqualify the person or persons bringing a class action from being the class representative or representatives.
    6. Actions — Class Actions — Attorney Fees.
    Attorney fees, while not awardable unless expressly authorized by statute or court rule, are awardable in class actions; where a class action involves the refunding of illegal union assessments, an award of reasonable attorney fees from the fund created by those assessments is permissible.

      7. Actions — Class Actions — Members Included in the Class — Numbers in the Class — Attorney Fees.
    The question whether a spurious class action should be allowed or dismissed is to be determined on the basis of the number of class members who desire to be included in the class; the extent to which reasonable attorney fees may be awarded depends upon the nature and extent of the benefit conferred upon the intervening class members.
    Concurrence in Part and Dissent in Part by Danhof, C. J.
    8. Judgments — Summary Judgments — Disputed Question of Fact.

      It is improper to grant a summary judgment holding that certain mandatory assessments made against a public school teacher by a teachers’ association are illegal on the basis that the assessments are an illegal strike fund where there was a disputed question of fact as to whether the fund for which the assessments were made was, in fact, exclusively a strike fund (GCR1963,117.2[3]).

    9. Labor Relations — Unions — Required Union Functions — Right of Unions to Financial Support — Extent of Support.

      The right of a labor organization to compel support is limited to the extent that the assessments made are justiAed by the costs of the collective bargaining, contract administration and grievance adjustment services which the labor organization is required to provide to all persons in its bargaining unit.

    10. Labor Relations — Unions — Union Assessments — Use of Assessments — Burden of Proof.

      Payment by a public school teacher of an assessment for a fund used to assist teachers who are without employment may not be compelled by a teachers’ association where it is alleged that the fund is an illegal strike fund and the association, while not admitting that the entire assessment is to be used to support illegal strikes, fails to show that some measurable portion of the fund is to be applied to proper purposes; the burden of proving the proper use of a mandatory union assessment rests upon a labor organization seeking enforcement of an assessment.

    11. Actions — Class Actions — Membership of a Class — Interests of a Class — Representation of a Class.

      A person who is not a member of a union but rather pays to the union a Anancial responsibility fee in lieu of union dues is not a proper party to bring on behalf of all persons paying a union

      assessment, including union members, a class action challenging the validity of the union assessment, since there can be no presumption that a person who is not a union member has the same interest in the elimination of the assessment as those persons who joined the union; the interests of a person who is not a union member are not sufficiently similar to the interests of union members with respect to union assessments so as to enable the nonunion person to adequately represent the union members in a class action; indeed, such a person’s interests may be antagonistic to the interests of the class he seeks to represent.

    12. Actions — Class Actions — Appropriateness op Representation op a Class.

      The class action device may not be used to permit a person to temper with the rights of others where there is no benefit to the person seeking to bring the class action.

      Miller, Johnson, Snell & Cummiskey (by John G. March and Thomas P. Sarb), for plaintiff.

      Foster, Swift, Collins & Coey, P.C. (by James A. White and Karen Bush Schneider), for Grand Rapids Education Association and Michigan Education Association.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   R. B. Burns, J.

Plaintiff, David Male, is a certified tenured teacher employed by the Grand Rapids public school system. In the course of his employment, plaintiff pays a yearly financial responsibility fee which is assessed by defendant Grand Rapids Education Association (GREA). Defendant GREA, an affiliate of defendant Michigan Education Association (MEA), is the exclusive bargaining representative for teachers employed by the Grand Rapids school system for kindergarten through twelfth grade. In 1975, defendant GREA informed plaintiff that his financial responsibility fee for the 1975-1976 school year would include a ten-dollar assessment for a mandatory teacher assistance program fund (TAP Fund). Because plaintiff believed that the TAP Fund was intended to aid teachers who engaged in illegal strikes, plaintiff refused to pay the portion of his financial responsibility fee that represented the TAP Fund assessment.

Under the terms of the parties’ collective bargaining agreement, if a teacher fails to pay the financial responsibility fee the teacher’s employment will be terminated by the defendant Board of Education of the City of Grand Rapids. In March 1976, defendant GREA filed charges against plaintiff with the defendant Board of Education, seeking the discharge of plaintiff for his refusal to pay the TAP Fund assessment. The Board of Education, with the concurrence of plaintiff and defendants GREA and MEA, resolved not to hold a tenure hearing until the legality of the TAP Fund assessment was adjudicated.

This action for declaratory judgment was brought in the Kent County Circuit Court for a determination on the legality of the TAP Fund assessment. The trial court held that the TAP Fund is a strike fund and that contributions to it, forced under threat of discharge, are illegal. The trial court denied a motion by plaintiff to certify the suit as a class action and later held that attorney fees were not awardable. Defendants GREA and MEA appeal the portion of the trial court’s judgment declaring the TAP Fund an illegal strike fund, and plaintiff cross-appeals the court’s refusal to certify the suit as a class action and the denial of attorney fees.

The trial court began its inquiry into the legality of mandatory TAP Fund assessments by noting the stated purpose of the fund which is:

"To provide direct assistance to teachers in the form of financial support if the employment has entirely disappeared or is temporarily unavailable either because of the concerted act of the employer or employees.”

As observed by the court, the parties have stipulated that "[t]he Tap Fund may be used to assist public school teachers engaged in strikes against their public employers and has in fact been so used”.

Based on the fact that the TAP Fund provides financial assistance to teachers engaged in strikes against their public employers, the trial court held that the fund is a strike fund. And, based on the fact that strikes by public employees, including public school teachers, are prohibited under Michigan law, MCL 423.202; MSA 17.455(2), the court further found that mandatory assessments for this strike fund are illegal and teachers cannot be compelled under threat of discharge to pay such assessments as part of the financial responsibility fee.

We agree with the holding of the trial court and find no merit in defendants’ argument that the TAP Fund furnishes support only to the teachers and not to strikes. As the trial court noted, the mere existence and availability of the fund is a powerful force and it is only logical to assume that teachers will be more likely to strike where there is strong financial backing.

Further, the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., explicitly prohibits the authorization of strikes by persons in authority. MCL 423.203; MSA 17.455(3), provides in part:

"No person exercising any authority, supervision or direction over any public employee shall have the power to authorize, approve or consent to a strike by public employees, and such person shall not authorize, approve or consent to such strike.”

As the system presently exists, GREA has the power, under the collective bargaining agreement, to compel the Board of Education to discharge teachers who refuse to support the TAP Fund. As the fund itself supports and instigates teacher strikes, enforcement of mandatory contributions to the fund is tantamount to approval of such activities in direct contravention of the act.

The trial court, therefore, did not err in holding that GREA could not enforce mandatory assessments for the TAP Fund.

Though the trial court found that payment of the TAP Fund assessment cannot be compelled under threat of discharge, the court refused plaintiffs request to order the refund of all the assessments collected by GREA. Plaintiffs request was made in the form of a petition to certify the action as a class action. The court’s refusal was based on two grounds: (1) no affidavits had been submitted joining other persons to the action, and (2) before April 1975, contributions to the TAP Fund were made on a voluntary basis. The court stated that it "hesitates to render an opinion in favor of those persons who have rendered no protest particularly on what they contributed on a voluntary basis”.

Class actions are provided for in GCR 1963, 208, which states in part:

".1 If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may on behalf of all sue or be sued when the character of the right sought to be enforced for or against the class is
"(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”

In Grigg v Michigan National Bank, 405 Mich 148, 167; 274 NW2d 752 (1979), the Michigan Supreme Court delineated the requirements which must be met in order to maintain a class action pursuant to GCR 1963, 208.1(3):

"1. There must be an identifiable class;
2. The number of persons in the class must be so large that it would, be impracticable to bring them all before the court;
"3. The person or persons seeking to represent the class must be members thereof;
"4. The interests of the class must be adequately represented;
"5. The right or rights sought to be enforced must be several;
"6. There must be a common question of law or fact affecting the several rights, and
"7. A common relief must be sought.”

After a review of the record, we find that the present case meets all of the above-noted criteria, as well as the further requirement that the maintenance of the case as a class action must serve the "convenient administration of justice”. Griggs, supra, 184.

In this action, the rights sought to be enforced are several, as each teacher has a separate claim to a refund of his assessment; there is a common question of law involved, the legality or illegality of the assessment; and common relief is sought in the form of a petition for declaratory judgment that the assessment is illegal.

It is undisputed that plaintiff is a member of the class whose interest he seeks to represent, however, defendants argue that a class action is inappropriate because only the seven or eight teachers who paid the assessment without joining GREA would be eligible to be members of the class. Defendants maintain that members of GREA, numbering approximately 1,813, should be assumed to have voluntarily paid the assessment by virtue of their voluntary association with GREA. We cannot conclude that support for illegal strike activities automatically follows voluntary association with GREA, and therefore we hold that all teachers in the bargaining unit would be eligible to join the class action. We also find that plaintiff will adequately represent the class, as there is no indication that plaintiff will not continue to pursue vigorously the rights of the class through qualified counsel.

The requirement that a class action be in accordance with the convenient administration of justice refers chiefly to the practical problems involved in conducting an action as a class action. See Grigg, supra, 184-189. Though the number of persons potentially in the class, approximately 1800, is too large to be conveniently joined by plaintiff, it is not too large to be managed by the court, as each member is known to defendants and is easily informed of the action. Moreover, the computation of damages is simple. Each member will be entitled to twenty dollars (ten dollars for each of the two years that the mandatory assessment was collected from every teacher except plaintiff). The fact that each class member will only be entitled to a small recovery makes the action one particularly suited for being brought as a class action. Bond v Ann Arbor School Dist, 383 Mich 693; 178 NW2d 484 (1970).

Finally, we note the concern which the trial court expressed because no other members of the class had submitted affidavits and the reluctance of the trial court to render an order that required the refund of assessments to GREA members who have not protested the assessments and who had voluntarily made payments to the TAP Fund. These concerns are met by the fact that a class action brought under GCR 1963, 208.1(3) has been used as a permissive joinder device:

"On the basis of the foregoing, we concluded that the judgment in a spurious class action binds only those similarly situated individuals who affirmatively indicate to the court their desire to be included in the class (to 'opt in’). This insures maximum protection of the rights of the absent class members in the cases where they need it most — cases in which the rights involved are not common but several and distinct in nature and in which the only connection between the members is a common question of law or fact.” Grigg, supra, 174.

Since this litigation would be conducted as a form of permissive joinder of parties, the fact that some members may want to allow GREA to keep their share of the assessment is not significant. Only those members who affirmatively opt into the action shall be bound by it. And, as stated by this Court in Adams v Wayne County Treasurer, 71 Mich App 275, 285; 248 NW2d 232 (1976), "merely because other members of the class have failed to intervene is no reason to disqualify the present named plaintiffs as class representatives”.

Absent an exception, attorney fees are not awardable unless expressly authorized by statute or court rule. State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71; 212 NW2d 821 (1973). The trial court’s decision not to award attorney fees was based on its finding that the "common fund” exception was not applicable in that plaintiff has sought to prevent the forced accumulation of assets rather than having sought to protect a pool of assets from depletion. Since we have held that the mandatory assessments were illegal and that a refund of the assessments is appropriate, an award of reasonable attorney fees from the TAP Fund is permissible. In Bond, supra, the Supreme Court awarded attorney fees in a situation very closely resembling the present one. The Supreme Court stated:

"One of the reasons for requiring a refund of the fees in this case is to provide a fund from which can be paid a reasonable attorney fee to the attorneys for plaintiffs.
"We are not unmindful of the fact that the fees which were exacted were used by defendant or of the relative smallness of each fee. Nevertheless, where the parties are arrayed in a lawsuit, as here, in which both sides undoubtedly conceive themselves to be proceeding in the public interest, some balance must be struck so that the side prevailing is not compelled to bear the burdensome costs of achieving a favorable decision.” Bond, supra, 704-705.

In Grigg, supra, the Supreme Court recognized that the trial court may allow or dismiss the class portion of a suit depending upon the number of class members who opt in and that this will affect the award of attorney fees.

"The plaintiff in the case at bar has only requested an award of 'reasonable’ attorney fees. Reasonableness of the fees would depend primarily upon the amount of time the attorneys spent on the case and upon the nature and extent of the benefit conferred upon the intervening class members. Such a fee, plus costs, would be payable from the proceeds of the judgment prior to computation for distribution.” Grigg, supra, 192.

Accordingly, we remand to the trial court with the following instructions:

1) The court shall set a reasonable time period within which class members must opt in order to be included in the class;

2) The court may in its discretion order that plaintiff, at his expense, issue such notice as the court may direct;

3) The court shall determine whether, according to the principles of equity, plaintiff should be awarded reasonable attorney fees.

Mackenzie, J., concurred.

Danhof, C.J.,

(concurring in part, dissenting in part). The majority has followed the lead of the complaint and the trial court in concluding that the TAP fund maintained by the defendant unions is "illegal”. Reasoning from this premise, my colleagues have joined the trial court to declare that no member of GREA’s bargaining unit may be "compelled” to contribute to the fund and have reversed the trial court by holding that the plaintiff may maintain a class action on behalf of all bargaining unit members. The opinion apparently holds that the unions must refund TAP assessments to any teacher who "opts in” to the class action. The majority has made a finding that the TAP fund is maintained solely for the purpose of mounting economic strikes against school districts and has utilized that factual proposition as the basis of a broad condemnation of the unions’ TAP activities. I believe that this is the product of a fundamental oversight with regard to the posture in which the case has come to judgment, and thus cannot join my colleagues.

This case was decided in the lower court on cross motions for summary judgment brought pursuant to GCR 1963, 117.2(3). The record upon which those motions were decided is comprised of the pleadings, affidavits, admissions, answers to interrogatories, and a stipulation of facts. Throughout the litigation, the plaintiff has insisted that the TAP fund is a "strike fund”, held for the sole purpose of helping teachers to weather their participation in illegal strikes. With equal steadfastness, the unions have maintained that the support of striking teachers is only one of the fund’s designated purposes and that its operating guidelines contemplate several permissible applications, most notably the financial support of teachers who are idled by lockouts or strikes by other school employees. The parties have so shaped their litigation that the destination and purpose of TAP dollars is the major contested issue between them.

However strongly the unions’ literature suggests that the Teachers Assistance Program is nothing more than a strike fund, the unions’ unrelenting denial that this is true makes it improper to conclude at this stage of the litigation that the plaintiffs characterization is correct. By uncritically treating the TAP fund as a "strike fund” the majority and the trial court have in effect resolved that which they believe to be a significant factual dispute in a summary judgment proceeding designed merely to determine whether such a dispute exists. See Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973), Bilicki v W T Grant Co, 382 Mich 319; 170 NW2d 30 (1969). I believe that a proper consideration of the plaintiffs motion for summary judgment must accept as true the unions’ assertions that while TAP money has been spent to support striking teachers it is also available for completely legal purposes. Recognizing this discipline, I am unable to join the majority in resolving this case on the efficient but uncritical premise that the TAP fund is "illegal”. What is demanded by this appeal is a more detailed examination of the real disputes involved and the rights of the parties, including those of the defendant unions.

The interest and rights of the plaintiff are easily recognized: He has rights in his employment, a right to decline union membership, and a right to withhold his support from an organization to which he is hostile. In the face of these important individual rights, it is too easy to overlook the fact that the unions are expressions of the rights conferred on their members by the public employment relations act and the First Amendment. See MCL 423.209; MSA 17.455(9), and Thomas v Collins, 323 US 516; 65 S Ct 315; 89 L Ed 430 (1945), Beilan v Board of Public Education of Philadelphia, 357 US 399; 78 S Ct 1317; 2 L Ed 2d 1414 (1958). Until some abuse is shown, the right of GREA and MEA members to form and support their organizations is at least the equal of the plaintiffs right to shun them. However difficult to attain, our task in this action is simply stated to be the protection of the rights of each party with the smallest possible damage to the rights of the others. The logical place to start is the actual dispute between the plaintiff and the defendants that is the foundation of his demand for declaratory judgment.

That dispute is of relatively narrow dimensions. Claiming that the plaintiff must support it with a "financial responsibility fee” equal to the dues it assesses its members, GREA has sought to oust the plaintiff from his employment, applying to this purpose the agency shop agreement it has made with the plaintiffs employer. By the terms of the agreement this is proper, for the plaintiff has refused to pay the fee in full. He claims that he cannot be compelled to pay the $10 portion of the annual fee that the unions reserve to their TAP fund. If it appears that the plaintiff need not pay his $10 yearly TAP assessment, his rights will be fully protected and the whole of his dispute with the unions will be resolved. The plaintiffs obligation to the TAP fund may be measured without reference to the "legality” of the fund itself, by applying the principles set forth in Abood v Detroit Board of Education, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977).

In Abood, the Court observed that compulsory support of an exclusive collective bargaining representative is virtually certain to have an adverse impact on employees’ First Amendment freedoms:

"To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union’s policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union’s wage policy because it violates guidelines designed to limit inflation, or might object to the union’s seeking a clause in the collective-bargaining agreement proscribing racial discrimination. The examples could be multiplied. To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit. But the judgment clearly made in Hanson [Railway Employees’ Dept v Hanson, 351 US 225; 76 S Ct 714; 100 L Ed 1112 (1956)] and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress. 'The furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his financial support merely because he disagrees with the group’s strategy. If that were allowed, we would be reversing the Hanson case, sub silentio.’ Machinists v Street, 367 US [740], at 778 [81 S Ct 1784, 6 L Ed 2d 1141] (Douglas, J., concurring).” (Footnote omitted.) 431 US at 222-223.

"The cause which [justifies] bringing the group together” is explained by the Court to be the employees’ collective desire for the services of a labor organization in "collective bargaining, contract administration, and grievance adjustment”. 431 US at 225-226.

The principles developed in Abood compel the conclusion that, with employees’ personal First Amendment rights at stake, a labor representative’s power to compel the support of would-be "free riders” is justified only by the collective bargaining, contract administration and grievance adjustment services it is required to provide to all members of its bargaining unit. See International Ass’n of Machinists v Street, 367 US 740; 81 S Ct 1784; 6 L Ed 2d 1141 (1961). A representative’s application to other purposes of money extracted from an unwilling employee is an abuse of the employee’s rights and exceeds the power that the government may properly bestow upon the representative. Our statute plainly declares that economic strikes are not a legitimate incident of collective bargaining in the public sector. MCL 423.202; MSA 17.455(2). It follows that a labor organization may not compel a dissenting public employee who is not a member of the organization to support that activity.

The burden of pleading and proving what part of a mandatory assessment is to be applied to proper uses rests with the labor organization that is seeking to enforce the assessment. See Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees v Allen, 373 US 113; 83 S Ct 1158; 10 L Ed 2d 235 (1963). While the unions in the case at bar have not admitted that the entire TAP assessment is to be used to support illegal strikes, neither have they attempted to show that some measured part of it is destined for proper applications. In the context of this case, it is proper to assume that the entire TAP assessment demanded of the plaintiff is an exaction for the support of teacher strikes. I thus agree with the majority that the plaintiff may not be compelled to pay the TAP assessment, and would join them to affirm the summary judgment declaring that the agency shop provision of the collective bargaining agreement may not be used to enforce the plaintiff’s contribution to the TAP fund.

The complaint in this action also demanded a declaration that no member of the Grand Rapids bargaining unit may be "compelled” to make TAP contribution and sought to recover of the unions all the contributions that have been made. The "common fund” thus generated was to be first applied to the payment of the plaintiff’s attorney fees. The plaintiff presented these demands as a request to proceed as the representative of a class comprised of all Grand Rapids teachers. From the trial court or the majority, the plaintiff has received all of this relief, provided only that a sufficient number of potential class members "opt in” to the action for restoration of the money.

It is in the resolution of the class action issue that the majority’s treatment of the TAP fund as a tangible "illegal” entity most confounds the case and disables analysis. The unions’ placement of the TAP assessments in an identifiable fund has aided the resolution of the plaintiff’s own confrontation with them. However, this case otherwise presents nothing more than the unions’ admitted intent to use a portion of their resources for purposes that are illegal. Our real concerns with the fund and the unions’ designs for it are not that they exist, but that improper action might ensue. In such an event, the legality of the expenditure may be evaluated, perhaps, if the strikers to whom assistance is given are acting in violation of an injunction, in contempt proceedings against the disbursing union. I cannot agree, however, that a labor organization’s possession of its own money, even with a more or less settled intent to apply it in the future to illegal ends, is an act of any independent legal significance.

The majority’s belief that the TAP fund is simply "illegal” has led it to hold that any contributor may obtain relief against it and that the plaintiff, a noncontributor, may pursue a class action on behalf of all. Bridging the narrow gap from premise to conclusion is the observation that membership in the union does not, in any individual’s case, imply "support for illegal strike activities”. Despite its obvious truth, this notion ignores the fact that any union member so opposed to the unions’ policies may relinquish his membership and join the plaintiff in the haven Abood has created for dissenters. More than 99% of the teachers in this bargaining unit are union members, and the record does not show that any have defected in response to the creation of the teacher assistance program. These 1800 putative dissenters continue to support the unions — which are defendants not plaintiffs.

Meaningful consideration of the class action claim must begin with a hard look at the legal and associational standing of the potential class members and the unions, for the class action prerequisites set forth in Grigg v Michigan National Bank, 405 Mich 148; 274 NW2d 752 (1979), cannot be applied in a legal vacuum. Plaintiff Male and his fellow nonunion teachers are financially tied to the defendant unions only by the agency shop arrangement contained in the collective bargaining agreement under which they work. The unions’ power under that statutorily-authorized agreement is limited by Abood, supra. To the unions’ demand for that portion of the plaintiffs "financial responsibility fee” that is destined for use in the teacher assistance program or other purposes not related to the unions’ duties to the plaintiff, Abood is a complete defense.

Against those of their members who would dissent by withholding dues, however, the unions’ power is not so limited. My brief research has disclosed that unions may assess dues and make rules to govern their members, and may enforce those decisions by suspension of union privileges, expulsion, and other sanctions. See Barker Painting Co v Brotherhood of Painters, Decorators, and Paperhangers of America, 57 US App DC 322; 23 F2d 743 (1927), cert den, 276 US 631; 48 S Ct 324; 72 L Ed 741 (1927), National Labor Relations Board v Allis-Chalmers Manufacturing Co, 388 US 175; 87 S Ct 2001; 18 L Ed 2d 1123 (1967), and Scofield v National Labor Relations Board, 394 US 423; 89 S Ct 1154; 22 L Ed 2d 385 (1969). Dissenting members endure the decisions of the whole membership because they prefer that endurance to resignation from their organization. Abood’s protections are not available to persons who would also retain their union cards. Whatever we may surmise regarding individual members’ opinions of the teachers assistance program, we must assume that the operation of the program reflects the real support of most union members and, at least, a begrudging acceptance of those remaining. Members of the latter group have at least concluded that their best interests lie with the unions and its programs. Even such a reluctant choice is protected by statute and constitution, and we may not ignore it for presumed lack of enthusiasm.

One of the Grigg criteria for allowing a litigant to proceed on behalf of a class is that "[t]he interests of the class [will] be adequately represented”. 405 Mich 148, 167. This means more than mere competence and enthusiasm, whether that enthusiasm be generated by ideology or the promise of attorney fees from the "common fund” waiting at the end of the litigation. It is clear to me that even in a "permissive joinder” or "spurious” class action, the would-be representative must have a personal legal interest in the issues he seeks to litigate for the class. "[W]hen it appears that the [representative] plaintiffs will not be the present or future beneficiaries of their action, the class action device is being abused.” Grigg v Robinson Furniture Co, 78 Mich App 712, 731; 260 NW2d 898 (1977). I am unable to discern what benefit will befall the plaintiff from this attack on the relationship. between the unions and their membership. I am also unable to discover a cause of action that Mr. Male could successfully assert against the union to compel it to modify its dues schedule or to give money to its members. This Court has held that "’a plaintiff may not accomplish by class representation that which he cannot assert (as) a cause of action in individual litigation.’ ” Stutelberg v Practical Management Co, 70 Mich App 325, 341; 245 NW2d 737, lv den 398 Mich 804 (1976).

The majority has also held that the plaintiff is a member of the class he seeks to represent, a related class action prerequisite set forth in Grigg v Michigan National Bank, supra. If the TAP fund were simply "illegal” as to all persons, this might be true. However, in light of the legal issues involved, the plaintiffs claim to class membership appears less substantial to me than it does to my colleagues. In fact, the plaintiff is seeking to represent two classes: one comprised of himself and perhaps the other nonunion teachers, and the other comprised of all those teachers who, for reasons we should not examine or evaluate, continue to support the unions with their membership. The plaintiff seeks to attack an action of the organizations that his would-be class members continue to support. If any litigants in this action may be deemed to hold interests common to the class of union members, it is the unions themselves. See Gray v Reuther, 99 F Supp 992 (ED Mich, 1951), aff’d 201 F2d 54 (CA 6, 1952), and Giordini v Radio Corporation of America, 183 F2d 558 (CA 3, 1950).

A class litigant should not be allowed to "represent” two classes with significant different legal interests or a class to whose interests he is antagonistic. See State v Laramie Rivers Co, 59 Wyo 9; 136 P2d 487 (1943), Shulman v Ritzenberg, 47 FRD 202 (D DC, 1969). This proposition has been differently formulated in a holding that "class members” whose interests are at war with their "representative” are not members at all. Weeks v Bareco Oil Co, 125 F2d 84 (CA 7, 1941). I believe that it is improper to inquire whether a representative belongs to his class without also asking whether his membership is the product of his legal position or merely of his litigational objectives.

The adequate representation and class membership concepts are grounded in the same fundamental considerations that deny standing to sue to persons who have suffered no injury at the hands of their defendants, Inglis v Public School Employ ees Retirement Board, 374 Mich 10; 131 NW2d 54 (1964), and require an "actual dispute” as a condition for declaratory relief, GCR 1963, 521.1, Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978). It is simply not the policy of our courts to open their doors to persons seeking to tamper with others’ rights to no benefit of their own. The advisory opinion cautiously authorized by Const 1963, art 3, § 8 is our state’s only exception to the principle that cases are not to be decided merely for the sake of precedent. The class action device must not allow avoidance of that principle. Cf., Dee-El Garage, Inc v Korzen, 53 Ill 2d 1; 289 NE2d 431 (1972).

I believe that the plaintiffs attempt to "condemn” a sum of money in which he has no interest on behalf of a class comprised almost exclusively of persons who do have an interest and who apparently are satisfied to leave it untouched is an abuse of the class action device. I would deny him leave to engage in that adventure. Litigation of the members’ rights against their unions should await the advent of a representative who is actually within that class of potential plaintiffs.

I would affirm the summary judgment only with respect to the plaintiffs personal dispute with the defendants.

       The financial responsibility fee is the equivalent of the dues of the GREA and is paid by any teacher who elects not to join the GREA.

       As summarized by the trial court, the plaintiff requested:
      "[0]ne, a Declaratory Judgment that the strike fund assessment made for the purpose of supporting strikes by public employees is illegal and that plaintiff cannot be compelled under the threat of discharge to pay such an assessment or be discharged for refusing to pay it; two, a Declaratory Judgment that the strike fund assessment is not properly a part of the mandatory financial responsibility fee under the Collective Bargaining Agreement between defendants GREA and the Board of Education, and that plaintiff cannot be discharged for his refusal to pay that assessment; and three, a Judgment of this Court ordering defendant GREA to refund to all teachers in the Grand Rapids public school system the illegal strike fund assessments collected to date (the latter is in the role of a class action).”

       See, Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104; 252 NW2d 818 (1977), and Holland School District v Holland Education Ass’n, 380 Mich 314; 157 NW2d 206 (1968).

       The court’s determination applies equally to union dues which are collected from the teacher members of defendant GREA.

       See infra for the effect that an award of reasonable attorney fees might have on this sum.


author: D. E. Holbrook, Jr., P.J.

text:
    ARSENAULT v MAYOR OF TAYLOR
    Docket No. 44028.
    Submitted May 21, 1980, at Detroit.
    Decided July 22, 1980.
    Leave to appeal applied for.
    Greg Arsenault was hired by the City of Taylor as a police cadet. He completed the police cadet training program, along with several other cadets, and was certified as eligible for a probationary police officer position. After certification, he received unfavorable recommendations from his commanding officers. The other applicants were appointed, but he was fired with two weeks notice. He brought an action against the City of Taylor, the Mayor, the Personnel Director and the Police Chief in the Wayne Circuit Court, for a writ of mandamus to compel his appointment as a probationary police officer. The court, Joseph B. Sullivan, J., granted summary judgment for defendants. Plaintiff appeals, alleging that he was entitled to notice and hearing prior to his dismissal as a requirement of due process and under the act providing civil service protection for municipal police and firemen. Held:

    Plaintiff was not entitled to a hearing under either theory.
    Affirmed.
    Municipal Corporations — Civil Service — Police Cadets — Statutes — Due Process.
    A person who was hired by a city to undergo the police cadet training program, was certified as eligible for a probationary police officer position and who was fired after receiving unfavorable recommendations from his commanding officers is not entitled to prior notice and a hearing either by operation of the statute providing for civil service protection for municipal police and firemen or as a due process requirement (MCL 28.513, 38.514; MSA 5.3363, 5.3364).
    Reference for Points in Headnote
    [1] 15A Am Jur 2d, Civil Service §§ 56, 57.

      LaBarge & Dinning, P.C. (by Ronald H. Greve), for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Raymond W. Morganti and John P. Jacobs), for defendants.
    Before: D. E. Holbrook, Jr., P.J., and V. J. Brennan and S. Everett, JJ.

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

   D. E. Holbrook, Jr., P.J.

Plaintiff was hired by the defendant City of Taylor as a police cadet. The police cadet training program is governed by MCL 38.521; MSA 5.3372(1), and is funded by the Comprehensive Employment Training Act. He was certified along with five other applicants as eligible for a probationary police officer position. After certification, defendants received unfavorable recommendations from plaintiff’s commanding officers. The other five applicants were appointed, but plaintiff was fired with two weeks notice. He now seeks a writ of mandamus to compel appointment as a probationary police officer. In granting summary judgment for defendants, the lower court held that the appointment of a police officer is a discretionary act.

Plaintiff’s first contention is that he could not be discharged without notice of charges and a hearing before the Civil Service Commission under MCL 38.514; MSA 5.3364, which provides:

"No member of any fire or police department within the terms of this act shall be removed, discharged, reduced in rank or pay, suspended or otherwise punished except for cause, and in no event until he shall have been furnished with a written statement of the charges and the reasons for such actions * *

We do not feel that plaintiff was entitled to such a hearing because of MCL 38.513; MSA 5.3363, which provides: "the provision of this act shall not apply to temporary and exceptional appointments made under the authority of this act”. The statute under which plaintiff was hired provides:

"A person enrolled in the [police cadet training] program shall not fulfill any functions, other than administrative, of a policeman until he receives a favorable recommendation from the appointing officer to the civil service commission or to the appointing authority where there is no civil service commission. A police cadet recommended for advancement to policeman shall receive preferential consideration for the position over other applicants.” MCL 38.521; MSA 5.3372(1).

Plaintiff was strictly a civilian employee within the City of Taylor police department. He held a temporary administrative position and was not allowed to perform any of the functions of a policeman. Therefore, he was not entitled to receive the same notice and hearing prior to discharge that would be afforded an actual policeman.

Plaintiff further contends that, even if he was not entitled to a hearing under the statute, he would be entitled to a hearing under due process of law. His reliance upon Board of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972), is misplaced. That Court upheld the dismissal of a probationary teacher without a hearing, holding that the teacher did not have a property interest sufficient to require the college to give him a hearing:

"Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Id., 577.

We find Bishop v Wood, 426 US 341; 48 L Ed 2d 684; 96 S Ct 2074 (1976), to be persuasive authority. In Bishop, supra, a North Carolina policeman was fired without a hearing after two years employment. It was held that the state law did not grant that plaintiff a property interest protected by the due process clause. Likewise, the instant plaintiff does not have a protectable property interest either by law or contract. He does not by statute qualify as a police officer and the cadet training act does not confer any guarantee upon him other than preferential consideration for permanent employment.

The fact that plaintiff was certified by the Civil Service Commission does not entitle him to an appointment as a probationary police officer. The general procedure by which an individual becomes a policeman is provided for by MCL 38.511(b); MSA 5.3361(b):

"The appointing officer shall notify the civil service commission of any vacancy in the service which he desires to fill, and shall request the certification of eligibles. The commission shall forthwith certify, from the eligible list, the name of the person who received the highest average at preceding examinations held under the provisions of this act within a period of 2 years next preceding the date of such appointment. The appointing officer shall, thereupon, with sole reference to the relative merit and fitness of the candidate, make the appointment so certified.”

Certification of eligibility is a step preceding the official appointment. It means nothing more than that the individual passed the physical and competitive examinations. Authority is given to appoint with reference to the relative merit and fitness of the candidate. There is a public policy concern for the lives and liberties of the general citizenry. As police officers’ actions reflect upon the integrity of the law, it is important that these individuals be mature, competent, morally fit and dependable.

As previously mentioned, a cadet is not allowed to fulfill any of the functions of a policeman until he has received a favorable recommendation from the appointing officer. The words "favorable recommendation” manifest a grant of discretion to the appointing officer. As the Mayor of Taylor did not give the favorable recommendation, and could not be ordered to do so, plaintiff was rightfully denied the appointment as a probationary officer.

Plaintiffs last contention is that he is entitled to a presumption that a favorable recommendation was given. We are not persuaded. Although some records concerning his performance as a cadet were missing, they were missing for all cadets. Furthermore, such personnel records have absolutely no relation to the existence or nonexistence of a "favorable recommendation” from Mayor Zub. Plaintiff has not presented any evidence that such a favorable recommendation was ever given. To the contrary, plaintiffs statement of facts describes an incident involving a close personal friend of the mayor which indicates in plaintiffs opinion a possible explanation for the mayor’s failure to give him a favorable recommendation. We reiterate our holding that a favorable recommendation by the mayor is a discretionary act. A writ of mandamus is not available to compel the issuance of a favorable recommendation.

Affirmed. No costs. A public question involved.