author: D. E. Holbrook, Jr.,

text:
    HARDIGREE v GREEN
    Docket No. 44469.
    Submitted January 15, 1980, at Lansing.
    Decided April 22, 1980.
    leave to appeal applied for.
    Eleanor J. and William Hardigree brought a malpractice action against Dr. W. M. Green and the City of Pontiac, d/b/a Pontiac General Hospital, for damages resulting from complications which followed an October 3, 1974, operation performed by Dr. Green at Pontiac General Hospital. Dr. Green settled with plaintiffs and an order of discontinuance was entered as to him. Defendant city moved for accelerated judgment on the basis of the doctrine of governmental immunity. The Oakland Circuit Court, Robert L. Templin, J., granted defendant city’s motion for accelerated judgment. Plaintiff Eleanor Hardigree appeals. Held:

      Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), which held that the operation of a hospital by a local governmental unit is not a "governmental function” within the meaning of the governmental tort liability act, should be given prospective effect only. Although Parker did not address the issue of whether its holding should be applied prospectively or retroactively, in the interest of justice and fairness and in view of the reliance that hospitals may have placed on the rule of law in effect prior to Parker the rule in Parker is to be prospectively applied to causes of action arising after December 27, 1978, the decisional date of Parker.

    Affirmed.
    1. Courts — Torts — Governmental Immunity — Retroactive Application.
    Courts are reluctant to apply retroactively a rule of law which overrules a common law doctrine of governmental immunity from tort liability.
    References for Points in Headnotes
    [1-3] 20 Am Jur 2d, Courts § 233.
    57 Am Jur 2d, Municipal, School, and State Tort Liability § 67.
    Immunity of municipal corporation from liability for damages in tort in operating hospital. 25 ALR2d 203.

      2. Courts — Decisions — Retroactive Application — Prospective Application.
    The factors to be considered by courts in determining whether a new rule of law which overrules a prior established rule of law should be applied prospectively or retroactively are: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice.
    3. Courts — Decisions — Torts — Governmental Immunity — Municipally Run Hospitals — Prospective Application.
    The Michigan Supreme Court decision which removed from the scope of the doctrine of governmental immunity the general operation of a municipally run hospital is, in the interest of justice and fairness and in view of the reliance of such hospitals on the prior established rule of law, given prospective application from December 27, 1978, the date of release of the Court’s decision abrogating the prior established rule of law.

      Ripple, Chambers & Steiner, P.C., and Raguso, Barnett & Bars, for plaintiff.

      Wilson, Portnoy, Basso & Leader, P.C. (by Robert P. Roth), for defendant.
    Before: Beasley, P.J., and D. E. Holbrook, Jr., and R. E. Robinson, JJ.

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

   D. E. Holbrook, Jr.,

J. Plaintiff Eleanor J. Hardigree (hereinafter plaintiff) was admitted to Pontiac General Hospital for a D&C and a tubal ligation. On October 3, 1974, the operating physician lacerated and perforated her small intestine and her uterus causing complications of pneumonia, yellow jaundice, a blood clot on the lung and other serious life-threatening conditions. On March 14, 1979, there was a settlement with Dr. Green and an order for discontinuance was entered. Plaintiff appeals as of right from a December 5, 1975, order granting accelerated judgment to the hospital based on the doctrine of governmental immunity.

Were this cause filed today, there would be no question that Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), would control. That case held that the operation of a hospital is not a "governmental function” within the meaning of the governmental tort liability act, as a modern hospital is essentially a business and its operation is not an activity of such a peculiar nature that it can only be done by government. The Court was silent as to whether its decision was to be applied prospectively or retroactively. This issue was addressed in Parker v Port Huron Hospital, 361 Mich 1, 28; 105 NW2d 1 (1960), when charitable hospital immunity was overruled:

"In the interest of justice and fairness, in view of the new ruling and the reliance that some, albeit few, charitable, nonprofit hospital corporations may have placed on the old ruling, and may have failed to protect themselves by the purchase of available insurance, we believe the new rule should apply to the instant case and to all future causes of action arising after September 15, 1960, the date of the filing of this opinion.”

The common law doctrine of governmental immunity of the state and its instrumentalities from tort liability was abrogated by Pittman v City of Taylor, 398 Mich 41, 49; 247 NW2d 512 (1976), which stated:

" 'The doctrine of governmental immunity is an historical anachronism which manifests an inefficient public policy and works injustice upon everyone concerned.’ Brown v Wichita State University, 217 Kan 279, 297; 540 P2d 66 (1975).”

Despite its strong language against governmental immunity, the Court in Pittman announced that its holding was only to be applied prospectively with the exception of any other cases then pending. In overruling common law doctrines of immunity from tort liability, courts are reluctant to apply their holdings retroactively. This is explained by Williams v Detroit, 364 Mich 231, 260; 111 NW2d 1 (1961), which held:

"Nor do we ignore the fact that some such victims must exist whose causes of action are barred by the prospective nature of this order and that as to them this decision affords no relief from the previous unjust doctrine. Such differences are created by every change in case law (or statutory law for that matter). If this decision were not to be made prospective in its nature, its application would still fail to remedy the problem of the persons whose cause of action accrued 3 years and 1 day ago. CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605). Each case of great public concern presents hard choices. We believe prospective abrogation of the judicial doctrine of governmental immunity accomplishes the nearest approach we have available to a just and common-sense solution of a great problem which has festered in the courts for years.”

Factors to be taken into account in determining whether a decision is to be applied prospectively or retroactively are: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the affect on the administration of justice. People v Hampton, 384 Mich 669, 673-674; 187 NW2d 404 (1971).

As in Williams, supra, this case presents a hard choice, as we sympathize with the instant plaintiff. However, in the interest of justice and fairness and in view of the reliance that hospitals may have placed on the old ruling by a possible failure to protect themselves by the purchase of available insurance, we must decline to give the Parker v Highland Park ruling retroactive application. As was held in Parker v Port Huron, supra, we believe that the holding in Parker v Highland Park should only apply to Highland Park and to all future causes of action arising after the date of filing of that opinion.

Affirmed. No costs, a public question being involved.


source: Caselaw Access Project

author: M. F. Cavanagh, J.

license: Public Domain

text:
    GRIERSON v BOARD OF EDUCATION OF THE SAGINAW CITY SCHOOL DISTRICT
    Docket No. 44606.
    Submitted February 5, 1980, at Lansing.
    Decided April 22, 1980.
    Alexander Grierson, a Saginaw fireman, sustained a work-related injury while inspecting a Saginaw school and was paid workers’ disability compensation benefits by the City of Saginaw (city). He brought a third-party negligence action in the Saginaw Circuit Court against the Board of Education of the Saginaw City School District (school board). The city intervened as a plaintiff to protect its right to recover from third-party tortfeasors any workers’ disability compensation paid to Grierson. Grierson settled his claim with the school board. Grierson qualified to receive duty disability payments from the City of Saginaw Policemen and Firemen Retirement System, but the city reduced these payments to Grierson to recover the amount of workers’ compensation benefits paid to him. Grierson amended his complaint to add the Board of Trustees of the City of Saginaw Policemen and Firemen Retirement System (Board of Trustees) as a party defendant and for a declaratory judgment that he was entitled to the duty disability payments withheld by the city as offsetting the compensation benefits received to the extent that compensation benefits were repaid to the city from the settlement with the school board. Judgment for Grierson against the city and the Board of Trustees, Hazen R. Armstrong, J. The school board was dismissed as a party. The city and the Board of Trustees appeal. Held:

    1. The purpose of a city ordinance which requires that any workers’ compensation paid or payable to a retirant or beneficiary on account of his city employment shall be offset against any pensions payable to him is to prevent double recovery in the event of a disabling accident; where the money obtained from a third-party negligence settlement will be repaid to the city the recipient is collecting only his pension benefits and there is no double recovery.

      References for Points in Headnotes
    [1, 3] 81 Am Jur 2d, Workmen’s Compensation § 77.
    [2] 14 Am Jur 2d, Champerty and Maintenance § 9.
    82 Am Jur 2d, Workmen’s Compensation § 643 et seq.

    Attorney’s fee or other expenses of litigation incurred by employee in action against third-party tortfeasor as charge against employer’s distributive share. 74 ALR3d 854.

      2. It is proper for an employer to pay a portion of the costs of recovery of an employee’s claim from a third party since the employer thereby receives the benefits of repayment of workers’ compensation payments as well as credit for those benefits to be paid in the future and this does not result in undue enrichment to the employee.
    3. An injured employee is not precluded by statute from recovering both workers’ disability compensation benefits and disability pension benefits where the disability compensation benefits were reimbursed to the employer from a settlement with a third-party tortfeasor.
    Affirmed.
    1. Workers’ Compensation — Pension Plans — Double Recovery — City Employees.
    There is no double recovery by an injured city employee who receives workers’ compensation benefits and disability pension benefits where the money obtained by the employee in settlement of his claim against a third-party tortfeasor is to be repaid to the city and credited to the city to the extent of its payment of workers’ compensation benefits.
    2. Workers’ Compensation — Costs of Recovery — Employers and Employees — Legal Fees — Undue Enrichment.
    It is proper for an employer to pay a portion of the costs of recovery of workers’ compensation benefits from a third party, since the employer thereby receives the benefits of repayment of the workers’ compensation payments plus credit for those benefits to be paid in the future, and the employee is not being unduly enriched.
    3. Workers’ Compensation —■ Statutes — Disability Pensions.
    An injured employee is not precluded by a statute from recovering both workers’ disability compensation benefits and disability pension benefits where the disability compensation benefits were reimbursed to the employer from a settlement with a third-party tortfeasor (MCL 418.161; MSA 17.237[161]).

      Van Benschoten, Hurlburt & Van Benschoten, P.C., for plaintiff.

      Braun, Kendrick, Finkbeiner, Schafer & Murphy (by Bruce L. Dalrymple), for defendants.
    Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   M. F. Cavanagh, J.

Plaintiff Grierson, a Saginaw fireman, was injured while inspecting a Saginaw school, prompting payment of workers’ compensation benefits to him by the City of Saginaw. He subsequently brought an action against defendant Saginaw Board of Education and the City of Saginaw intervened to recoup compensation benefits paid to Grierson. Grierson qualified to receive duty disability payments from the defendant Board of Trustees, but the city reduced the disability pension payments by the amount of compensation benefits received by plaintiff. Grierson settled his claim with the Board of Education. He then amended his complaint to seek a declaratory judgment determining that he was entitled to reimbursement of disability pension payments, which had been previously offset against his compensation benefits, to the extent that compensation benefits were repaid to the city from his settlement against the Board of Education. A judgment for Grierson was entered. Defendant Board of Trustees and cross-defendant City of Saginaw appeal of right from the declaratory judgment.

Appellants’ first argument on appeal is based on the Saginaw ordinance, D-678 § 129, which states in part that, "Any workmen’s compensation which may be. paid or payable to a member retirant or beneficiary on account of his city employment shall be offset against any pensions payable to such member, retirant or beneficiary”. It is apparent that the purpose of this ordinance is to prevent double recovery by city employees from workers’ compensation and disability pension funds in the event of a disabling accident. When one recognizes, as did the lower court, that it is the money obtained by Grierson from his settlement that will be repaid to the city and credited to the city, it would be a frustration of the purpose of the above-quoted ordinance to consider that money as "workmen’s compensation” and still allow the offset. The lower court’s ruling only allows Grierson to collect his pension benefits. There is, therefore, no double recovery.

Appellants next argue that the lower court’s ruling will result in unjust enrichment. The gist of this argument is that Grierson will recover more money than he would have had the city not intervened to seek reimbursement and future credit. That is, had the city not intervened, Grierson, alone, would have had to suffer a diminution of his award by virtue of his legal fees and costs, whereas, given the city’s intervention, Grierson’s award is increased due to the city’s expenditures on legal fees and costs. Contrary to appellants’ contention, the holding of Franges v General Motors Corp, 404 Mich 590; 274 NW2d 392 (1979), should not affect the validity of the lower court’s holding herein. We first note, in passing, that appellants have limited their arguments in this matter to hypothetical examples, failing to employ the specific figures of the legal fees and costs involved in this litigation to demonstrate how the resolution of the lower court neglected to apply the formula proposed in Franges; supra, 617-623. Grierson, on the other hand, declares that his employer will be reimbursed according to the guidelines of Franges, and cites the specific figures involved. Furthermore, he demonstrates that his employer’s monetary interest in the proceeds of his settlement virtually exhausts the entire amount of the settlement. Grierson settled against the third party for $35,000 and compensation payments at the time of appeal totalled $33,233.66, leaving Grierson proceeds amounting to $1,153.61. Compare these figures to the significantly greater figures involved in the Franges case. Finally, as the Franges opinion ruled, it is proper for an employer to pay a portion of the costs of recovery from a third party since the employer thereby receives the benefits of repayment of the workers’ compensation payments plus credit for those benefits to be paid in the future. Accordingly, we find no error in the lower court’s calculations.

The ultimate issue raised by appellants is basically a reiteration of their first argument. Their contention, based on MCL 418.161; MSA 17.237(161), is that benefits from the pension fund awarded to Grierson constitute "like benefits” to those allowable under the Worker’s Disability Compensation Act, resulting in an impermissible double recovery under the above-cited statute. However, this argument fails for the same reason as does the first, viz., it is unrealistic to consider workers’ compensation benefits paid to Grierson as such, when, in fact, they are derived from his settlement against the third party. Defendant city is reimbursed from settlement proceeds for its workers’ compensation benefits paid to Grierson. Therefore, he does not receive a double recovery from city funds as barred by statute.

Affirmed.


author: Allen, P.J.

text:
    AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE v KENT COUNTY
    Docket No. 44825.
    Submitted March 4, 1980, at Grand Rapids
    Decided April 22, 1980.
    Leave to appeal denied, 409 Mich 935.
    Kent County entered into labor-management contracts with different groups of its employees. The contracts provided that the employees would be entitled to one-half day off with pay for Good Friday and that the county building would be closed from noon until three on Good Friday to allow employees to attend religious services. Americans United for Separation of Church and State and others filed a complaint seeking temporary and permanent injunctions prohibiting defendant from closing its facilities on Good Friday and paying its employees holiday pay for that half-day. Plaintiffs alleged, and it was admitted, that the cost for the half holiday would be $14,601.98. Kent Circuit Court, George V. Boucher, J., granted summary judgment to defendants. The court held that the Michigan legal holiday statute did not mandate that public employers refrain from bargaining away additional time off for employees or that public buildings be kept open on all but statutorily listed holidays. Plaintiffs appeal. The issues on appeal are whether defendant’s agreement to pay its employees one-half day holiday pay for Good Friday violates the legal holiday statute and whether the collective bargaining agreements violate the religious liberty clause of the Michigan Constitution or the Establishment Clause of the First Amendment of the Federal Constitution. Held:

    The legal holiday statute does not prohibit a local governing body from adding other days to the statutory list. Where a half-holiday is the result of privately conducted negotiations authorized by a statute which encourages collective bargaining there is no violation of the religious liberty clause of the Michigan Constitution. The matter of holidays and holiday pay, in fact, is one of the mandatory subjects of bargaining. Furthermore, the collective bargaining agreements do not violate the freedom of religion provisions because the contents of the agreement do not compel a person to attend religious services or force the payment of taxes to support any minister, religious sect or society.

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Sundays and Holidays § 7.
    [2] 48 Am Jur 2d, Labor and Labor Relations §§ 1000-1002.
    [3] 73 Am Jur 2d, Sundays and Holidays §§ 5, 10, 37.
    Validity, under establishment of religion clause of federal or state constitution, of making day of religious observance a legal holiday. 90 ALR3d 752.

      Affirmed.
    1. Statutes — Holidays — Commercial Transactions.
    The Michigan legal holiday statute does not prohibit a local governing body from adding other days to the statutory list; the primary purpose of the statute is to regulate commercial transactions occurring on certain designated days (MCL 435.101; MSA 18.861).
    2. Labor Relations — Holidays — Collective Bargaining — Statutes.
    The matter of holidays and holiday pay is one of the mandatory subjects of bargaining (MCL 432.201 et seq.; MSA 17.455[1] et seq.).

    3. Labor Relations — Freedom of Religion — Collective Bargaining — Constitutional Law.
    Collective bargaining agreements providing for a half-day on Good Friday do not violate the freedom of religion provisions in the state constitution where the contents of the agreement do not compel a person to attend religious services or force the payment of taxes to support any minister, religious sect or society (Const 1963, art 1, § 4).

      Dilley & Dilley, for plaintiffs.

      Clary, Nantz, Wood, Hoíñus, Rankin & Cooper (by Jack R. Clary and Sheila A. Kinney), for defendant.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, Jr., JJ.

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

   Allen, P.J.

Do provisions in collective bargaining agreements between the county and various employee groups calling for the closing of public buildings on Good Friday afternoon and the payment of holiday pay violate the Michigan legal holiday act, MCL 435.101; MSA 18.861, the religious liberty clause of art I, § 4, of the Michigan Constitution of 1963, and the Establishment Clause of the United States Constitution? April 10, 1979, the trial court held not and granted summary judgment to defendant county under GCR 1963, 117.2(1). Plaintiffs appeal as of right.

Pursuant to the Michigan public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., Kent County entered into labor-management contracts with different groups of its employees. One contract covered county employees in the circuit court, probate court and district court. A second contract covered all other county employees except certain small groups excluded in § 1.1 of the agreement. Though the language varied somewhat, both contracts provided its employees are entitled to one-half day (or four hours) holiday pay on Good Friday and that the county building shall be closed from 12 noon to 3 p.m. on Good Friday to allow employees to attend religious services.

On Friday, March 9, 1979, five weeks prior to Good Friday, April 13, 1979, plaintiffs filed a complaint in circuit court for Kent County seeking temporary and permanent injunctions prohibiting defendant from closing its facilities on Good Friday and paying its employees holiday pay for that half-day. Plaintiffs alleged, and for purposes of this suit it is admitted, that the cost to the county for paying for said half-day holiday is $14,601.98. Defendant filed a motion for accelerated judgment alleging plaintiffs lacked capacity to bring suit and also filed a motion for summary judgment for plaintiffs’ failure to state a claim upon which relief could be granted. Hearing was held on March 13, 1979, and on April 10, 1979, three days prior to Good Friday 1979, summary judgment was granted to defendant. In an opinion filed subsequently, the trial court construed the Michigan legal holiday act as not mandating that public employers refrain from bargaining away additional time off for employees or that public buildings be kept open on all but the statutorily listed holidays. On appeal, plaintiffs do not oppose the right of any employee to observe Good Friday provided that public buildings remain open and provided further that the employee not be paid for such time off.

Plaintiffs’ initial position is that defendant’s agreement to pay its employees one-half day holiday pay for Good Friday violates the Michigan legal holiday statute, MCL 435.101; MSA 18.861. That statute designates certain days or half-days as public holidays "for all purposes whatever as regards the presenting for payment or acceptance, and the protesting and giving notice of the dishonor of bills of exchange, bank checks, and promissory notes, also for the holding of courts, except as otherwise provided in this act”. (Emphasis supplied.) Good Friday is not mentioned in the statute. Nothing in the statute provides or even suggests that the Legislature intended the list of holidays to be exclusive, or prevents a local governing body from adding other days. The more reasonable interpretation of the statute is that it was primarily intended to regulate commercial transactions occurring on certain designated days.

That this statute does not prevent a local unit of government from adding other holidays is borne out by two opinions of the Attorney General, OAG 1952-1954, No. 1670, p 172 (June 9, 1953). At that time the statute provided that county offices should be closed every Saturday from noon until midnight. Request was made of the Attorney General whether such language precluded the county board of supervisors from closing county offices on other days. The Attorney General held that the matter was "within the reasonable discretion of the board of supervisors”. In OAG 1945-1946, No. 0-4672, p 698 (May 15, 1946), it was stated that the Lenawee County Board of Supervisors could close the county courthouse on Thursday afternoons in addition to Saturday afternoon. Accordingly, we hold that the collective bargaining agreements in the instant case did not violate the Michigan legal holiday statute.

We turn now to the more important issue of whether the collective bargaining agreements violate the religious liberty clause of Michigan Const 1963, art I, § 4, or the Establishment Clause of the First Amendment of the United States Constitution. Plaintiffs claim they do and cite as authority for such statement Mandel v Hodges, 54 Cal App 3d 596; 127 Cal Rptr 244 (1976), a case which plaintiffs state is "uniquely similar to the instant case on its facts”. That case held that an order of the Governor of California closing state offices for three hours on Good Friday and granting state employees paid time off violated the Establishment Clause of the First Amendment and violated a similar provision in the state constitution. The court further held that the state statute which gave the Governor discretionary power to designate Good Friday from noon until three o’clock as a state holiday was unconstitutional under the Establishment Clause.

However, for purposes of the instant case, the precedential vitality of Mandel was dissipated just one year later by California School Employees Ass’n v Sequoia Union High School Dist, 67 Cal App 3d 157; 136 Cal Rptr 594 (1977). In that case, the union representing school employees had negotiated with the school district under the provisions of a California statute similar to PERA. One of the provisions agreed upon was that Good Friday would be a holiday with pay. But when the decision in Mandel, supra, was released, the school district rescinded that part of the agreement. The union then sued to enforce the agreement. The court held in favor of the union largely on grounds that the agreement was the result of negotiations which the parties were empowered to engage in by state statute. Mandel was distinguished on grounds that there the statute empowered the Governor to designate Good Friday a holiday whereas, in the case before it, the statute did not in any way encourage a choice of Good Friday over any other holiday.

"The three-hour paid holiday to state employees on Good Friday in Mandel resulted from governmental action by the Governor pursuant to discretionary power vested in him by the Legislature in section 18025 of the Government Code. (Mandel, supra, 54 Cal App 3d at p 608, 127 Cal Rptr 244.) Here, the holiday arose out of negotiations between CSEA and the District as part of a wage and fringe benefit agreement for the 1974-1975 school year. The union representatives were empowered to engage in such negotiations by the meet and confer process under the Winton Act (see Ed Code, § 13080 et seq.); the board of trustees was vested with authority to approve the holidays chosen by CSEA under Education Code sections 5202, 5201.1 and 13656. Such statutes do not in any way encourage a choice of Good Friday over any other holiday. Thus, while the Legislature vested the board with the power to declare certain school holidays, the discretionary authority in requesting said days rested primarily with a non-governmental entity, CSEA. The constitutional infirmity in Mandel, of granting the chief executive of the state with a discretionary power that was exercised in favor of a Christian, rather than a non-Christian holiday, is absent in the case at hand. (Supra, at p 617, 127 Cal Rptr 244). The state, through its highest elected official, is not in the position of advancing or inhibiting a particular religion. Under the facts of this case the effect, if any, on religious institutions is indirect and incidental and such an effect has never been held sufficient to warrant invalidation of state law.
"* * * The fact in the present case, that the entire day was a holiday, not just between .12 to 3, is by no means insignificant. Several secular considerations may have entered into the union representatives’ choice of March 28 as a holiday rather than a non-Christian holiday. As noted above, in prior school years Good Friday fell within spring vacation as it was held the week before Easter. In the 1974-1975 year, spring vacation was held the week following Easter. Thus, the choice of March 28 — the Friday before spring vacation —as a holiday, could have been for as mundane and secular a purpose as affording classified employees a longer spring vacation.”

We find Sequoia determinative. In the instant case, the decision to make Good Friday a partial holiday was the result of privately conducted negotiations authorized under a statute encouraging collective bargaining. In fact, the matter of holidays and holiday pay is one of the mandatory subjects of bargaining. Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268, 278; 273 NW2d 21 (1978). Further, it is undisputed that during the negotiations in the instant case, the parties first agreed upon the number of holidays which would be included in the collective bargaining contract and then proceeded to negotiate which holidays would be selected, and if Good Friday had not been selected as a half-holiday, then another half-day would have been selected in its place. Thus, the selection of Good Friday in the collective bargaining agreement did not increase the cost to the taxpayers or the number of hours county facilities would not be open for business. See also Anno: Validity under establishment of religion clause of federal or state constitution, of provision making day of religious observance a legal holiday, 90 ALR3d 752.

We further find, that even though the holiday in the instant case is a half-day rather than a full day as in Sequoia, it nevertheless had the very practical effect of lengthening the Easter weekend. As such, and because nothing in the agreement encouraged employee attendance at Good Friday church services, we believe the agreements served a secular purpose of time off over the Easter holiday season.

Finally, we disagree with plaintiffs that the collective bargaining agreements violate the provisions of Michigan Const 1963, art I, § 4, which reads:

"Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.”

Plaintiffs cite no cases in point, nor have we been able to find any. We fail to see how the contents of the agreements compel a person to attend religious service or force one to pay taxes for the support of any minister, religious sect or society.

Affirmed. No costs, a public question being involved.

       Defendant’s motion for summary judgment was based on the affidavit of the Kent County Controller who participated in the negotiations and whose affidavit set forth the facts stated above.


text:
    LAMB v OTTAWA COUNTY
    Docket No. 45016.
    Submitted March 4, 1980, at Grand Rapids.
    Decided April 22, 1980.
    William R. Lamb, M.D., P.C., and Jeanette S. Schoonmaker, .M.D., P.C., both individually and corporately, filed two complaints in the Ottawa Circuit Court against Ottawa County and its Community Mental Health Services Board. The first was based upon an alleged breach of contract and sought money damages and injunctive relief to prevent defendants from terminating plaintiffs’ employment contracts. The second was based upon an alleged violation of the Open Meetings Act and sought certain injunctive relief. Prior to a hearing to determine if injunctive relief should issue under the complaint alleging a violation of the Open Meetings Act, plaintiffs withdrew their request for injunctive relief under the breach of contract action, and the parties stipulated that testimony would be presented on the breach of contract claim in order to have it preserved. It was understood that, at the end of the testimonial hearing, plaintiffs would be filing an amended complaint, following which defendants would file an answer. Plaintiffs filed a notice of voluntary dismissal of the breach of contract action but the court, James E. Townsend, J., denied dismissal. Plaintiffs appeal by leave granted. Held:

    Given certain conditions precedent, a plaintiff, under the court rules, has an absolute right to a nonprejudicial dismissal without permission of the court. Since no answer or motion for accelerated or summary judgment had been filed, plaintiffs were entitled to dismissal without prejudice upon payment of court costs.
    Reversed.
    Trial — Court Rules — Voluntary Dismissal Without Prejudice.
    A trial court erred in denying a plaintiff’s voluntary dismissal without prejudice pursuant to the general court rules where a notice of voluntary dismissal had been filed prior to the filing of an answer or motion for accelerated or summary judgment by the defendant but where some testimony had been taken concerning the instant lawsuit in a separate but factually related lawsuit; given certain conditions precedent, a plaintiff, under the court rules, has an absolute right to a nonprejudicial dismissal without permission of the court (GCR 1963, 504.1[1]).

      References for Points in Headnote
    [1] 24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit § 6.
    Time when voluntary nonsuit or dismissal may be taken as of right under statute so authorizing at any time before "trial,” "commencement of trial,” "trial of the facts,” or the like. 1 ALR3d 711.

      Landman, Hathaway, Latimer, Clink & Robb (by Jon D. Vander Ploeg), for plaintiffs.

      Wesley J. Nykamp, Prosecuting Attorney, for defendants.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, Jr., JJ.

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

   M. F. Cavanagh, J.

On March 23, 1979, plaintiffs filed two complaints in circuit court against defendants. The first was based upon a breach of contract claim and requested monetary damages and injunctive relief to prevent defendants from terminating plaintiffs’ employment contracts. The second complaint was based upon an alleged violation of the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., and requested certain injunctive relief.

On April 5, 1979, a show cause hearing was held to determine whether injunctive relief would issue pursuant to the complaint concerning the alleged violation of the Open Meetings Act. Immediately preceding the show cause hearing, both trial counsel and the trial court engaged in a discussion in which plaintiffs’ counsel withdrew the plaintiffs’ request for injunctive relief under the breach of contract complaint. It was further stipulated that testimony would be presented on the breach of contract claim in order to have it preserved. The court summarized the stipulation on the record as follows:

"If counsel desire, however, to present testimony on the merits of the case concerning the contract and the alleged breach of contract and the damages resulting therefrom, we indicated to counsel that if they desired to do that and agree, stipulated that it could be done, the Court would be willing to accept testimony today for purposes of preserving that testimony so perhaps to avoid the necessity of one or more persons who have to return to Court to present that same testimony at a future date. This, however, would be done subject to the understanding and subject to the direction from the Court that following the filing of pleadings which frame the issues in the case, either attorney could request that the matter could be scheduled for trial and to present additional testimony * * *.”

At the end of the testimonial hearing, it was understood that plaintiffs’ counsel would be filing an amended complaint, following which defendants’ counsel would file an answer. However, on April 16, 1979, plaintiffs’ counsel filed a notice of voluntary dismissal noting that no answer or motion for accelerated judgment or summary judgment had been filed. From the trial court’s refusal to enter the voluntary dismissal without a motion and hearing thereon, plaintiffs appeal by leave granted.

The sole issue raised in this appeal is whether the trial court erred reversibly in denying plaintiffs’ voluntary dismissal without prejudice pursuant to GCR 1963, 504.1, where plaintiffs had filed a notice of voluntary dismissal prior to the filing of an answer or a motion under either GCR 1963, 116 or 117, by defendants but where some testimony had been taken concerning the present lawsuit in a separate but factually related lawsuit. We answer this question in the affirmative and reverse the trial court’s denial of the plaintiffs’ notice of voluntary dismissal.

GCR 1963, 504.1, is based upon F R Civ P 41(a)(1). Although there is no Michigan case interpreting GCR 1963, 504.1, there is a Federal case decided in the Western District of Michigan, Southern Division, which interprets F R Civ P 41(a)(1). This case, DC Electronics, Inc v Nartron Corp, 511 F2d 294, 298 (CA 6, 1975), states in pertinent part:

"* * * Rule 41(a)(l)(i) is clear and unambiguous on its face and admits of no exceptions that call for the exercise of judicial discretion by any court. Other than to determine, should the question arise, whether an answer or a motion for summary judgment has in fact been filed prior to the filing of a notice of dismissal, a court has no function under Rule 41(a)(l)(i).”

See also, Thorp v Scarne, 599 F2d 1169 (CA 2, 1979).

We also deem GCR 1963, 504.1(1), to be clear and unambiguous. Given certain conditions precedent, plaintiff has an absolute right to file a nonprejudicial dismissal upon payment of costs without permission of the court. It is undisputed in this case that no answer or motion under Rules 116 or 117 has been filed by the defendants, and therefore all conditions necessary to a voluntary dismissal have been met, other than payment of costs, which of course must be taxed by defendants after filing of the dismissal.

Defendants’ assertion that the testimony taken at the show cause hearing concerning a possible violation of the Open Meetings Act constitutes the equivalent of an answer pursuant to GCR 1963, 118.3, is also unpersuasive. This rule allows amendment of the pleadings only after those pleadings have been filed. It cannot be construed as authorization to obviate the need to file pleadings. Further, even if we were to construe this court rule to allow in-court testimony to substitute for an original pleading, the facts of this case clearly demonstrate that the testimony at the show cause hearing was to be applied solely to the complaint dealing with the violation of the Open Meetings Act and was not applicable to the breach of contract case.

Finally, we note that defendants do not make any claim that if the dismissal is allowed they will be prejudiced thereby. We perceive no reason to believe that defendants would or could be prejudiced thereby. The testimomy taken at the April 5th hearing will, in the event this complaint is later refiled, still, be available to both sides just as though this dismissal had not occurred. MRE 804(b)(1). Accordingly, we hold the ruling of the trial court to be clearly erroneous and reverse for entry of the voluntary dismissal.


author: T. M. Burns, P.J.

text:
    WINES v CITY OF HUNTINGTON WOODS
    Docket No. 45252.
    Submitted December 11, 1979, at Lansing.
    Decided April 23, 1980.
    Robert Wines, a police officer employed by the City of Huntington Woods, took the written portion of a competitive examination for promotion to the rank of police sergeant in October, 1974. Following the written portion of the examination, Wines was advised that he had the second highest score on that portion of the examination; however, city officials would not divulge to plaintiff the names or positions of those who scored above or below him. In 1975, following completion of the oral portion of the examination, Wines was advised that he was second among the three finalists. Wines’ requests for his compiled score and the scores of the other candidates were denied by city officials. Following a 1978 conversation with an attorney, Wines was able to secure from city officials the scores of the 1975 examination and discovered that they had been improperly totalled by the city manager. Wines filed an unfair labor practice charge with the Michigan Employment Relations Commission, alleging that his score and the score of one other candidate were intentionally miscalculated because of their affiliation with a police officers’ union and that but for the miscalculation he would have had the top score and would have been promoted to the rank of sergeant. The city moved to dismiss Wines’ charge on the basis of the provision of the public employment relations act which provides that an unfair labor practice charge must be filed with the commission not more than six months after the unfair labor practice. The administrative law judge granted the city’s motion to dismiss. The commission affirmed the administrative law judge’s decision. Wines appeals. Held:

    The six month limitation period contained in the public employment relations acts relative to the filing of unfair labor practice charges was tolled during the period of time that Wines had no actual knowledge or reason to know of the alleged unfair labor practice of the city.

      References for Points in Headnote
    [1] 48 Am Jur 2d, Labor and Labor Relations §§ 1369, 1370, 1764 et seq.

    Period of limitations or laches to be applied under 29 USC §§ 185, 187, in action for breach of labor contract or damages from unfair labor practice. 19 ALR3d 1034.

      Reversed and remanded.
    Labor Relations — Public Employment Relations Act — Unfair Labor Practices — Knowledge — Limitations on Proceedings — Tolling.
    The six month limitation period during which a public employee may file an unfair labor practice charge under the public employment relations act is tolled during the period in which the employee has no actual knowledge or reason to know of an unfair labor practice by the public employer (MCL 413.216[a]; MSA 17.455[16][a]).

      Maybaugh, Wellman & Monnich, for plaintiff.

      Shifman & Goodman, P.C., for defendant.
    Before: T. M. Burns, P.J., and J. H. Gillis and Bashara, JJ.
   T. M. Burns, P.J.

Plaintiff, Robert Wines, appeals of right a May 3, 1978, decision of the Michigan Employment Relations Commission that affirmed a prior decision of an administrative law judge to dismiss plaintiff’s unfair labor practice complaint because plaintiff had failed to file this action within the time period of the appropriate statute of limitations. MCL 423.216(a); MSA 17.455(16)(a). We reverse.

In October, 1974, plaintiff, a police officer employed by the defendant City of Huntington Woods, took a competitive examination for promotion to the rank of police sergeant. The examination consisted of an oral and a written portion. After the scores on the written test had been tabulated but before the oral test had been given, plaintiff was advised of his written score and of the fact that this score placed him second highest among the persons who had taken the examination. Defendant did not divulge to plaintiff the names or the positions of those who had scored above and below him.

Subsequently, plaintiff completed the oral portion of the examination, and, in January, 1975, he was advised of the results of this portion of the test by the director of the Huntington Woods Police Department. However, plaintiff was informed only of his standing among those who had taken the test and was not told the identity of those who scored above or below him or the difference between his and other scores. Plaintiff also alleges that he was never advised of his compiled score but that the top three candidates for the sergeant position, based upon their total scores on the examination, were posted alphabetically. The director of the police department informed plaintiff that his competitive position was second among the three finalists.

Plaintiff requested the scores of the other persons who had taken the examination. On separate occasions, both the director of the police department and the city manager refused to divulge this information. After a conversation with his attorney in 1978, plaintiff discovered that a procedure was available by which he could compel delivery of the scores. Thereafter, plaintiff demanded and received the scores of the 1975 examination.

Upon inspecting the scores plaintiff discovered that they had been improperly totalled by the city manager. Plaintiff contends that, if they had been properly computed, he would have had the top score on the examination and would have been promoted to the rank of sergeant. Plaintiff alleges that his score and the score of another person who had taken the test were intentionally miscalculated because of their affiliation with a police officers’ union. Defendant denies these allegations. No proof was taken on them however, because defendant’s motion to dismiss for the failure of plaintiff to comply with the statute of limitations was granted.

In pertinent part, MCL 423.216(a); MSA 17.455(16)(a), which sets forth the period of limitations for actions alleging unfair labor practices, provides:

"Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the commission, or any agent designated by the commission for such purposes, may issue and cause to be served upon the person a complaint stating the charges in that respect, and containing a notice of hearing before the commission or a commissioner thereof, or before a designated agent, at a place therein fixed, not less than 5 days after the serving of the complaint. No complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the fling of the charge with the commission and the service of a copy thereof upon the person against whom the charge is made, unless the person aggrieved' thereby was prevented from filing the charge by reason of service in the armed forces, in which event the 6-month period shall be computed from the day of his discharge.” (Emphasis supplied).

Unquestionably, plaintiffs complaint with the MESC was not filed within six months of the date that his test scores allegedly were altered, or within six months of the date that he was refused access to the scores of all persons who had taken the examination. Plaintiff argues, however, that his claim was not stale for two reasons: first, the period of limitations set forth in this statute should be held to commence running only when the employee knows or should know of the alleged unfair labor practice and, second, the period of limitations should be deemed tolled during the time that an employer engages in fraudulent concealment of an unfair labor practice. We agree.

No Michigan appellate court has been called upon previously to address the limitations period contained in this statute. However, in cases where this Court has interpreted the limitations provisions in other statutes regulating public employment, it has inferred the existence of tolling periods even though the involved statute did not provide explicitly therefor.

In Solomon v Highland Park Civil Service Comm, 47 Mich App 536, 540; 209 NW2d 698 (1973), lv den 390 Mich 790 (1973), this Court considered essentially the same issue before us here, but in the context of the limitations provision of MCL 38.514; MSA 5.3364, which applies to the removal or suspension of police officers and firefighters. Although the Court disagreed with the trial judge’s application of the limitations period to the facts before it, it affirmed the judge’s ruling that the 90-day limitations period did not begin to run until the discharging authority had actual knowledge of an employment violation. Similarly, in Hunn v Madison Heights, 60 Mich App 326, 333; 230 NW2d 414 (1975), this Court reaffirmed the holding of Solomon and held that charges against a police officer were brought timely when they were filed with a municipal civil service commission within 90 days of the date of actual notice of the alleged wrongdoing, even though more than 90 days had expired since the date of the misconduct.

In Werner v Macomb County Civil Service Comm, 77 Mich App 533, 538; 258 NW2d 549 (1977), lv den 402 Mich 836 (1977), this Court found that the 90-day limitations period of MCL 51.362; MSA 5.1191(112), which concerns the discharge and suspension of civil service employees of county sheriff departments, "runs from the time the discharging authority has knowledge of the misconduct”. The Court held this to be true despite the plain language of the statute involved, which the Court conceded seemed to "indicate that if the discharging authority does not discover the misconduct or does not act within 90 days of the misconduct itself, no subsequent action is justified”. 77 Mich App 533, 537.

We see no valid reason to interpret the statute before us in a manner other than one consistent with the interpretations given the statutes involved in the above cases. To hold otherwise would allow unscrupulous employers to conceal unfair labor practices until expiration of the six-month limitations period and thus preclude relief for violations of their employees’ rights. We hold, therefore, that, where a plaintiff-employee has no actual knowledge or reason to know of an unfair labor practice, the limitations period of MCL 423.216(a) is tolled. In light of this disposition we find it unnecessary to address a second issue raised by plaintiff as to whether the statute of limitations would be tolled under the doctrine of fraudulent concealment. See, DeHaan v Winter, 258 Mich 293; 241 NW 923 (1932), MCL 600.5855; MSA 27A.5855.

Reversed and remanded for further proceedings consistent with this opinion. Costs to abide final outcome. We do not retain jurisdiction.


author: Allen, J.

text:
    FITZWATER v FITZWATER
    Docket No. 45290.
    Submitted February 13, 1980, at Lansing.
    Decided April 23, 1980.
    Plaintiff, Roger D. Fitzwater, and defendant, Sally M. Fitzwater, were married in Flint, Michigan. Soon after the marriage, the parties divided their living time between Texas and Alaska. Four children were born of the marriage. In 1977 defendant moved with the children to Flint, Michigan, but plaintiff husband remained in Bonham, Texas, where he owned and operated a service station. In 1978, plaintiff was granted a judgment of divorce in Fannin County, Texas. Custody of the four children was given the wife and the husband was ordered to pay child support. On January 29, 1979, defendant wife petitioned the Genesee Circuit Court to amend the Texas decree so as to increase child support and to provide a policy of health insurance for the benefit of the minor children. Plaintiff was personally served with process by a member of the Fannin County Sheriffs department. Plaintiff filed a special appearance through a Michigan attorney and moved for dismissal of the action for lack of jurisdiction. Following hearing, the trial court, Thomas C. Yeotis, J., ruled in plaintiffs favor. Defendant appeals. Held:

    A Michigan court does not have in personam jurisdiction to modify a foreign divorce decree which awarded the wife custody of and support for the minor children where the husband obligor does not reside or own property in Michigan and where the family domicile was outside Michigan.
    Affirmed.
    References for Points in Headnotes
    [1, 2] 24 Am Jur 2d, Divorce and Separation § 999.
    Necessity of personal service within state upon nonresident spouse as prerequisite of court’s power to modify it’s decree as to child support in matrimonial action. 62 ALR2d 544.
    [2] 23 Am Jur 2d, Desertion and Nonsupport § 138.
    Construction and application of state statutes providing for reciprocal enforcement of duty to support dependents. 42 ALR2d 768.
    [3] 62 Am Jur 2d, Process § 45.

      1. Courts — Jurisdiction — Modification of Judgment — Divorce — Nonresident Parties.
    A Michigan court does not have in personam jurisdiction to modify a foreign divorce decree which awarded the wife custody of and support for the minor children where the husband obligor does not reside or own property in Michigan and where the family domicile was outside Michigan.
    2. Courts — Jurisdiction — Statutes — Parent and Child — Nonresident Parties.
    Neither the Family Support Act nor the Uniform Reciprocal Enforcement of Support Act grants in personam jurisdiction over a nonresident party who is not otherwise subject to the power of Michigan courts (MCL 552.451 et seq., 780.151 et seq.; MSA 25.222[1] et seq., 25.225[1] et seq.).

    3. Courts — Jurisdiction — In Personam Jurisdiction — Nonresident Parties — Minimum Contacts.
    Personal service out of state upon a nonresident party is sufficient to give the party fair notice of the proceeding and an opportunity for a hearing, but, in order for a Michigan court to exercise in personam jurisdiction over the party, "certain minimum contacts” between the party and the State of Michigan must be shown so that maintenance of the suit does not offend traditional notions of fair play and substantial justice.

      Sherwin F. Biesman, for defendant.
    Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   Allen, J.

Does a Michigan court have in personam jurisdiction to modify a foreign divorce decree which awarded the wife custody of and support for the minor children where the husband obligor does not reside or own property in Michigan and where the family domicile was outside Michigan? The trial court held no. We affirm.

Plaintiff and defendant were married in Flint, Michigan, December 17, 1966. Soon after the marriage, the parties divided their living time between Texas and Alaska. Four children were born of the marriage. In September 1977, defendant moved with the children to Flint, Michigan, but plaintiff husband remained in Bonham, Texas, where he owned and operated a service station. On June 28, 1978, plaintiff was granted a judgment of divorce in Fannin County, Texas. Custody of the four children was given the wife and the husband was ordered to pay $65 per month per child in support.

On January 29, 1979, defendant wife petitioned the Genesee County Circuit Court to amend the Texas decree so as to increase child support and to provide a policy of health insurance for the benefit of the minor children. Plaintiff was personally served with process by a member of the Fannin County Sheriff’s Department on February 9, 1979. Plaintiff filed a special appearance through a Michigan attorney and moved for dismissal of the action for lack of jurisdiction. Following hearing, the trial court ruled in plaintiff’s favor, stating:

"I’m impressed by several things: number one, the parties by stipulation entered into a property settlement that dissolved their marriage as recently as less than a year ago, June 29, 1978.
"The defendant has since moved to Michigan from Texas. Who is to say if she’s not satisfied with what happens in Michigan she could move elsewhere? I think in a sense we’re encouraging 'judge shopping’ or 'forum shopping’ when the court with the original jurisdiction is the one that dissolved the marriage, that has the right to enforce the judgment, since the defendant does reside — or, the plaintiff does reside in Texas, and I see no particular reason this Court should get involved in this situation.
"I think it’s a situation that the Court should not get involved in. I don’t think we have jurisdiction, and I’m not going to accept it as such, and I deny your motion, * * * »

On May 16, 1979, an order was entered dismissing the case for lack of jurisdiction. From that order defendant appeals as of right.

The Family Support Act confers subject matter jurisdiction upon circuit courts to order and enforce the payment of money by fathers for the support of minor children living with their mother, separate and away from their father. Section la of this act has been interpreted by this Court as allowing the circuit court to modify an original decree of support from a foreign jurisdiction upon petition from the children’s mother or guardian. Ebel v Brown, 70 Mich App 705; 246 NW2d 379 (1976), Amato v Sanborn, 47 Mich App 244; 209 NW2d 429 (1973), Gray v Gray, 32 Mich App 466; 189 NW2d 145 (1971). However, in so ruling, it was deemed necessary that the lower court have personal jurisdiction over the husband obligor by reason of his current residency in the state.

The basis for this conclusion is found at 1 Restatement, Conflict of Laws, § 457, pp 546-547, which states:

"A state has legislative jurisdiction to impose upon one person a duty to support another person if
(a) the person to be supported is domiciled within the state and the person to support is subject to the jurisdiction of the state, or
(b) the person to support is domiciled within the state although the person to be supported is not subject to the jurisdiction of the state, or
(c) both parties are subject to the jurisdiction of the state, though neither is domiciled there.”

In Ebel, Amato and Gray, both the obligor and the obligee, with her dependent children, had become permanently domiciled in Michigan at the time modification of the foreign decree of divorce and child support was sought. Thus, so long as the obligor is for any reason subject to the personal jurisdiction of the state, that state can exercise its subject matter jurisdiction to modify a foreign decree of support.

Likewise, the adoption in Michigan of the Uniform Reciprocal Enforcement of Support Act (URESA) (1952) permits Michigan courts to modify a foreign support decree or judgment where Michigan is responding to a petition brought by an initiating state for enforcement of a prior support decree. OAG 1952-1954, No. 1820, p 434, Blue v Blue, 243 Ga 22; 252 SE2d 452 (1979), Alig v Alig, 255 SE2d 494 (Va, 1979), Ibach v Ibach, 123 Ariz 507; 600 P2d 1370 (1979). The act does not, of course, grant in personam jurisdiction over a nonresident party not otherwise subject to the power of Michigan courts. Nor does it create new duties of support. Martin v Coffey, 83 Mich App 113, 115; 268 NW2d 307 (1978). Rather, its purpose is to provide by reciprocal legislation for the enforcement, across state lines, of duties of support already in existence. Bjorgo v Bjorgo, 402 SW2d 143 (Tex, 1966). Therefore, where no jurisdiction over the obligor husband is possessed by the circuit court, URESA cannot be relied on as granting additional powers to modify a foreign support order.

Consequently, the issue becomes whether the circuit court had in personam jurisdiction over the plaintiff obligor husband in the instant case. Although the Family Support Act and URESA might be construed as permitting our circuit courts to exercise subject matter jurisdiction over this type of case, in order to do so, the court must have in personam jurisdiction over the obligor husband.

Service of process on plaintiff husband in Texas pursuant to GCR 1963, 105(1), was sufficient under Mullane v Central Hanover Bank & Trust Co, 339 US 306, 315; 70 S Ct 652; 94 L Ed 865 (1950), to give plaintiff fair notice of the proceedings against him and an opportunity for a hearing. Milliken v Meyer, 311 US 457; 61 S Ct 339; 85 L Ed 278; 132 ALR 1357 (1940). However, the exercise of in personam jurisdiction over the plaintiff husband also requires a showing that the prescribed relationship between the party and the state makes it constitutionally permissible for the state to extend its judicial power over the party. In order to constitutionally subject a party to a judgment in personam, "certain minimum contacts” within the territory of the forum must be shown so that the maintenance of the suit does not "offend 'traditional notions of fair play and substantial justice’ ”. International Shoe Co v Washington, 326 US 310, 316; 66 S Ct 154; 90 L Ed 95; 161 ALR 1057 (1945).

Following the recommendation of the Michigan Law Revision Comm (1972), 7th Annual Report, p 53, the Legislature recently amended the Michigan "long-arm” statute to enable the courts of this state to exercise limited personal jurisdiction over an individual where the individual’s relationship with the state arises out of the following act:

"Maintaining a domicile in this state while subject to a marital or family relationship which is the basis of the claim for * * * child support.” 1974 PA 90, § 1; MCL 600.705(7); MSA 27A.705(7).

The amendment is intended to provide a basis for personal jurisdiction when the defendant has enjoyed a family domicile in Michigan and then abandons his dependents, leaving them as potential charges upon the public welfare resources of this state. Michigan Law Revision Comm (1972), 7th Annual Report, p 55, Nelson, Family Support From Fugitive Fathers: A Proposed Amendment to Michigan’s Long Arm Statute, 3 Prospectus 399 (1970).

Similar provisions in other states have been upheld as providing sufficient "minimal contacts” for subjecting a fugitive parent to the personal jurisdiction of the forum state. Dillon v Dillon, 46 Wis 2d 659; 176 NW2d 362 (1969), Mizner v Mizner, 84 Nev 268; 439 P2d 679 (1968), cert den 393 US 847; 89 S Ct 130; 21 L Ed 2d 117 (1968), reh den 393 US 972; 89 S Ct 391; 21 L Ed 2d 386 (1968), Scott v Hall, 203 Kan 331; 454 P2d 449 (1969), Hines v Clendenning, 465 P2d 460 (Okla, 1970).

However, where, by the plain words of the statute, the basis of the claim for child support does not arise out of the maintenance of a familial domicile in this state, it cannot be said that our courts have been empowered to exercise personal jurisdiction over a nonresident parent in a support proceeding. The obligor husband in the case at bar was not a fugitive parent from the state of his marital domicile. Whisenant v Whisenant, 219 Kan 387, 391-393; 548 P2d 470 (1976), Varney v Varney, 222 Kan 700, 701-703; 567 P2d 876 (1977), compare Hawes v Hawes, 130 Ill App 2d 546; 263 NE2d 625 (1970), with Farah v Farah, 25 Ill App 3d 481; 323 NE2d 361 (1975). While the parties may have been originally domiciled in Michigan at the commencement of their marital relationship, "soon after” they "divided their living time between Texas and Alaska”. In fact, at the time of their divorce, the parties had been domiciled in Texas. Following the divorce, and defendant wife’s move to Michigan with her children, plaintiff husband remained domiciled in Texas. The state in which the litigants last lived together as husband and wife and in a family relationship was, therefore, Texas. As such, plaintiff husband cannot be said to have deserted his family in Michigan, thus subjecting himself to the personal jurisdiction of Michigan courts by reason of MCL 600.705(7); MSA 27A.705(7). Anno: Long-arm statutes: obtaining jurisdiction over nonresident parent in ñliation or support proceedings, 76 ALR3d 708.

Finally, we note that in cases involving circumstances very similar to those in the case at bar, the United States Supreme Court and the Supreme Courts of Illinois and New Jersey have held that the due process clause of the United States Constitution prohibits a state from entering a binding judgment against a nonresident obligor because the quality and nature of his activities in the state make it unreasonable and unfair to require him to conduct his defense in that state. Kulko v Superior Court of California, 436 US 84; 98 S Ct 1690; 56 L Ed 2d 132 (1978), Boyer v Boyer, 73 Ill 2d 331; 22 Ill Dec 747; 383 NE2d 223 (1978), Landis v Kolsky, 81 NJ 430; 409 A2d 276 (1979) . The obligee wife’s remedy in such a case is to litigate her claim by invoking the uniform Reciprocal Enforcement of Support Act. Kulko, supra, 98-100, Boyer, supra, 227.

Accordingly, the trial judge did not err in dismissing defendant wife’s petition for increased child support on the ground that the court lacked personal jurisdiction over the plaintiff husband.

Affirmed.

       1966 PA 138, as amended 1970 PA 153; MCL 552.451-552.459; MSA 25.222(l)-25.222(9), and see MCL 552.28; MSA 25.106.

       1952 PA 8, as amended; MCL 780.151-780.174; MSA 25.225(1)-25.225(24), see Uniform Reciprocal Enforcement of Support Act, 9A, ULA 747 et seq.

        In personam jurisdiction can be obtained over the fugitive parent if he is present or continues to maintain a domicile in the state at the time process is served, or if he consents to submit himself to the court’s jurisdiction, MCL 600.701; MSA 27A.701. In addition, in rem or quasi-in rem jurisdiction can be used as a basis for litigating the controversy where the party, not otherwise subject to the personal jurisdiction of a Michigan court, has property situated in the state. MCL 600.751, 600.755; MSA 27A.751, 27A.755, see Vanderbilt v Vanderbilt, 354 US 416, 417; 77 S Ct 1360; 1 L Ed 2d 1456 (1957). None of these grounds was pleaded or relied on by defendant wife as authorizing the circuit court to exercise jurisdiction over the litigation.

         Under URESA, the obligee need not return to the state of the obligor’s domicile or the state wherein the divorce and original support decree was entered in order to petition for increased child support. In order to obtain, modify, or enforce support obligations owed by a spouse in one state to a family in Michigan, the obligee need only file a petition with the circuit court in Michigan. MCL 780.160a, 780.161; MSA 25.225(10a), 25.225(11). If the court "finds that the petition sets forth facts from which it may be determined that the respondent owes a duty of support and that a court of the responding state may obtain jurisdiction of the respondent or his property”, it may send a copy of the petition to the "responding state”. MCL 780.162; MSA 25.225(12). This has the effect of requesting the responding state "to obtain jurisdiction of the respondent. MCL 780.163; MSA 25.225(13a). If jurisdiction is obtained, then a hearing is set in a court in the responding state at which the obligor may, if he choses, contest the claim, MCL 780.163b; MSA 25.225(13b), see Pfueller v Pfueller, 37 NJ Super 106; 117 A2d 30 (1955). If the responding state court finds that the obligor owes a duty of support pursuant to the laws of the state where he or she was present during the time when support was sought, MCL 780.158; MSA 25.225(8), judgment for petitioner is entered. MCL 780.164; MSA 25.225(14). If the money is • collected from the obligor, it is then sent to the court in the initiating state for distribution to the initiating party. MCL 780.168; MSA 25.225(18). See generally the text and footnotes in Kulko, supra, 98-100, Stewart, Domestic Relations: Interstate Enforcement of Support Orders: Necessity and Feasibility of Federal Legislation, 48 Cornell LQ 541 (1963), and Martin v Coffey, supra, 115.


text:
    FELICIANO v DEPARTMENT OF NATURAL RESOURCES
    Docket No. 46007.
    Submitted February 15, 1980, at Lansing..
    Decided April 23, 1980.
    Elizabeth Feliciano, age 15, while wading in shallow water in Silver Lake in the Pinckney State Recreation Area, stepped into a dropoff and drowned. The Pinckney State Recreation Area is under the jurisdiction, control and supervision of the state Department of Natural Resources (DNR). Elizabeth’s administratrix, Carmen Feliciano, filed a complaint in the Court of Claims alleging decedent’s death was the result of the direct and proximate negligence of the state, the DNR and lifeguards Jill Irvine, Jeffrey Eder and Gregory Osborne, who were all joined as defendants. The complaint averred that Silver Lake and its environs were under control of the DNR and alleged seven specific acts of negligence. The complaint made no reference to or averment that the defendants’ conduct was in the performance of a proprietary function. Defendants moved for summary judgment on the ground that the complaint failed to set forth a factual basis constituting one of the recognized exceptions to defendants’ sovereign immunity from tort liability. The Court of Claims, Ray C. Hotchkiss, J., granted the motion and entered an order stating that plaintiff’s complaint failed to state a claim upon which relief could be granted. Plaintiff appeals. On appeal, defendants ask for affirmance of the trial court decision for the reasons that: (1) the operation of a recreational area as part of a state park system is a governmental function and thus clothed with governmental immunity, (2) failure of the complaint to plead facts in avoidance of immunity, and (3) that the three individual persons named as defendants may not be sued individually in the Court of Claims. Held:

      References for Points in Headnotes
    [1, 2] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 156-160.
    59 Am Jur 2d, Parks, Squares, and Playgrounds §§ 38-46.
    Municipal operation of bathing beach or swimming pool as municipal or proprietary function, for purposes of tort liability. 55 ALR2d 1434.
    [3] 20 Am Jur 2d, Courts §§ 21, 33, 87-106.

      1. The operation and supervision of a bathing and swimming beach in a state recreation area by the DNR is a nongovernmental function and the defense of sovereign immunity from tort liability is inapplicable.
    2. The complaint alleged facts which, if proved, disclosed that the DNR activity was not in the exercise of a governmental function and therefore not immune from tort liability. This is sufficient to state a claim for which relief can be granted.
    3. Jurisdiction of the Court of Claims is generally confined to claims against state officers for those acts performed in official capacities. The three lifeguard employees of the DNR were not state officers according to traditional agency theory and for this reason were not properly joined as defendants. If the issue is raised on remand they should be dismissed from the action.
    Reversed and remanded.
    1. States — Torts — Parks — Beaches — Governmental Function — Governmental Immunity.
    The operation and supervision of a bathing and swimming beach in a state recreation area by the Department of Natural Resources is a nongovernmental function and the defense of sovereign immunity from tort liability is inapplicable; the operation of a supervised swimming beach where bath houses are provided for changing clothes and ropes and markers are set out to designate the area for swimming is not of the essence of governing but is a function commonly and effectively performed by private enterprise.
    2. States — Torts — Parks — Beaches — Governmental Function — Governmental Immunity — Pleading — Complaint — Statement of Claim.
    A complaint states a claim for which relief can be granted in an action against the Department of Natural Resources alleging negligence in the operation of a swimming beach in a state recreation area where it pleads facts which, if proved, disclose that the activity of the state agency was not in the exercise of a governmental function and therefore not immune from tort liability.
    3. Courts — Court of Claims — Jurisdiction — State Officers.
    The Court of Claims is a court of legislative creation with explicit and limited powers; it has jurisdiction over claims against state officers for those acts performed in official capacities.

      James F. Finn, P.C., for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frank J. Pipp and Sterling W. Schrock, Assistants Attorney General, for defendants.
    Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   Allen, J.

While wading in the shallow water of Silver Lake in the Pinckney State Recreation Area on July 19, 1978, Elizabeth Feliciano, age 15, stepped into a drop-off and drowned. The Pinckney State Recreation Area is under the jurisdiction, control and supervision of the Department of Natural Resources of the State of Michigan. On December 1, 1978, complaint was filed in the Court of Claims alleging that decedent’s death was "the direct and proximate result of the negligence of the defendants, their agents, servants, employees or persons otherwise under their supervision”. Paragraph six of the complaint proceeded to set forth seven specific acts of negligence. Except for averring that Silver Lake and its environs were under the control of the Department of Natural Resources and averring seven specific acts of alleged negligence, the complaint made no reference to or averment that defendants’ conduct was in the performance of a proprietary function.

Defendants moved in the Court of Claims for summary judgment under GCR 1963, 117.2(1) on the ground that the complaint failed to set forth a factual basis constituting one of the recognized exceptions to defendants’ sovereign immunity from tort liability. Following a hearing, the trial judge granted the motion and on June 29, 1979, entered an order stating that plaintiffs complaint failed to state a claim upon which relief could be granted. From that order plaintiff appeals of right.

On appeal, defendants urge this Court to affirm the trial court’s order in all of its aspects because: (I) the operation of a recreational area as part of a state park system is a governmental function and thus is clothed with governmental immunity; (II) failure of the complaint to plead facts in avoidance of immunity; and (III) the three individual persons named as defendants may not be sued individually in the Court of Claims.

I

Traditionally the operation of a park system and recreational area was held to be a governmental function clothed with immunity from suit. Rohrabaugh v Huron-Clinton Metropolitan Authority Corp, 75 Mich App 677, 681-684; 256 NW2d 240 (1977). But in late 1978, our Supreme Court, in two closely divided opinions, adopted new concepts of governmental immunity. Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978). Three Justices advanced an "essence of government standard” under which a function is determined to be governmental and protected by immunity from suit largely by deciding whether the function is a planning function or an operations function. Three Justices opted for a common-law case precedent standard under which a function would be held to be protected by immunity if it were so held to be by common-law case precedent.

One Justice, Justice Moody, was left with the swing vote. He agreed with the "essence of government” standard, but rejected the planning/operations distinction thereof. He proposed a "can it be effectively accomplished only by government” test. The Moody test would bring more functions of government under the protective umbrella of immunity than would the planning/operations standard. In Parker, supra, Justice Moody joined with Justices Fitzgerald, Kavanagh and Levin to hold that the operation of a municipal hospital was not a governmental function. But in Perry, supra, Justice Moody sided with Justices Coleman, Ryan and Williams to hold that a state-operated mental institution was a governmental function immune from tort liability.

Applied to the factual situation before us, the Coleman, Ryan, Williams common-law test would require a finding of immunity. Conversely, the Fitzgerald, Kavanagh, Levin position would preclude a finding of immunity. What is not clear is the finding commanded by Justice Moody’s position. However, this Court, on facts basically the same as those presented in the instant case, recently held the operation of a recreational area was not a governmental function protected by immunity from suit. Daugherty v Michigan, 91 Mich App 658; 283 NW2d 825 (1979). In that case plaintiff sustained personal injuries when he dove off an unguarded bridge into the Huron River in the Proud Lake Recreational Area operated by the Department of Natural Resources. The Court said at 663:

"Private recreational areas do exist and provide essentially the same services. Also under the analysis stated by Mr. Justice Moody, in Parker, the instant case does not present a situation where the purpose, planning, carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by government. In addition, liability would not be an unacceptable interference with the government’s obligation to govern.
"Applying the principles laid down in Parker, we rule that the operation of the recreational area in question was not a governmental function. Therefore, defendants would not enjoy governmental immunity.”

Appellees respectfully suggest that Daugherty was incorrectly decided and ask that this panel decline to follow that opinion. In support of this request, appellees cite the broad statutory duties of the Department of Natural Resources to acquire, maintain and make available for the use of the public open spaces for park and recreational purposes and to maintain a system for outdoor recreation. In a Brandéis type brief, appellees proceed to lay out the extensive number of state park and recreation areas acquired and under the jurisdiction of the Department of Natural Resources. Attendance during a two-year period at the state park system totaled 44,410,763 persons, including 1,196,536 persons utilizing the Pinckney Recreation Area. Given these facts which disclose the magnitude of the operation, appellees argue that under Justice Moody’s "can it be effectively accomplished” test, only government could effectively operate the Pinckney Recreation Area. Appellees’ argument is persuasive when applied to the maintenance and operation of a park and recreational system in general. But it was not the general activity which was being conducted when the alleged negligence occurred in the instant case. Defendants’ alleged negligent conduct occurred during the operation of a supervised swimming beach area. The operation of a bathing beach where bath houses are provided for changing clothes and ropes and markers are set out to designate the area for swimming is a function commonly and effectively performed by private enterprise. The operation of a swimming beach is no more a governmental function subject to immunity from suit than the operation of a municipal roller skating rink, concerning which this Court in Cronin v Hazel Park, 88 Mich App 488; 276 NW2d 922 (1979), held:

"* * * we hold that the operation of a roller skating program by a municipal corporation is not of essence to governing. We conclude that such activity is nongovernmental even under Justice Moody’s broader statement of the governmental essence test.” Id., 491. (Emphasis supplied.)

Similarly, the operation of a swimming area is less "of the essence of governing” than the operation of an emergency medical services unit by a municipal fire department — an operation held not to be a governmental function protected by immunity from suit. Berkowski v Hall, supra.

In summary, to the extent that Daugherty, supra, holds that the entire spectrum of the Department of Natural Resources statutory prescribed operation of the Pinckney Recreation Area is not a governmental function, we disagree with Daugh erty. But to the extent that case holds that the conduct and operation of a bathing and swimming area is a nongovernmental function to which the defense of immunity does not apply, we agree with the decision. Our decision in this regard is supported by Professor Cooperrider’s frequently cited article, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 284-285 (1973):

"On the other hand, the defense also covers injuries causally relatable to conditions of publicly owned premises that, while left open for entry by the public, are not developed for intensive use. This would include areas such as large rustic parks, forest and other lands left substantially in their natural condition, and public waters other than supervised beach areas. The private sector offers no analogy here, for no private party is the occupier of premises remotely comparable in extent.” (Emphasis supplied.)

II

The Department of Natural Resources argues that even if this Court determines that the operation of a supervised swimming area is not a governmental function to which the defense of immunity applies, the Court of Claims did not err in granting a summary judgment because plaintiffs complaint only pleaded negligence and did not plead facts in avoidance of immunity as required by McCann v Michigan, 398 Mich 65, 77; 247 NW2d 521 (1976). Defendants’ interpretation of McCann is too narrow. In Wright v Detroit, 402 Mich 861; 261 NW2d 535 (1978), the Supreme Court reversed an accelerated judgment granted in favor of the City of Detroit on grounds that the complaint failed to state a cause of action:

"The complaint states a claim for which relief may be granted because it pleads facts which, if proved, demonstrate that the activity complained of is not activity 'in the exercise or discharge of a governmental function’ under MCLA 691.1407; MSA 3.996(107), and, therefore, 'does not fall within the ambit of immunity established by the Legislature in 1970 PA 155.’ McCann v State of Michigan, 398 Mich 65, 77 (1976).”

In the instant case, the complaint states facts, viz: describes activity, which, if proved, is activity not in the exercise of a governmental function.

Ill

Our decision on the two issues discussed above compels a reversal of the order granting summary judgment and a remand to the Court of Claims for further proceedings. Though technically not preserved for purposes of appeal and therefore not briefed by plaintiff, the question of whether the individual defendants, Irvine, Eder and Osborne, may be joined as defendants is bound to be raised on remand.

On this question, we think the individual defendants’ position is well taken. The Court of Claims is a court of legislative creation. Its statutory powers are explicit and limited. Taylor v Auditor General, 360 Mich 146; 103 NW2d 769 (1960). In Abbott v Secretary of State, 67 Mich App 344, 348; 240 NW2d 800 (1976), this Court held that the Court of Claims had jurisdiction over claims against state officers for those acts performed in official capacities. As the three lifeguard employees of the Department of Natural Resources named as defendants in the present suit are not state officers, according to traditional agency theory, they were not properly joined as defendants in this suit. It would appear that the Court of Claims would have been justified in granting a motion for summary judgment dismissing them as defendants, had a motion been brought before the court on* such grounds.

Reversed and remanded for trial in accordance with this opinion. No costs, a public question being involved.

       (A) Allowing the lake to become overcrowded with swimmers; (B) failure to employ sufficient life guards; (C) employing unqualified life guards; (D) failure to employ sufficient other personnel to maintain safety on a large inland lake; (E) failure to administer artificial respiration in a proper manner; (F) failure to instruct and supervise life guards; (G) allowing inexperienced persons to swim in deep water without adequate warning of the dangers and depth of water.

       For a more detailed discussion of Parker-Perry, supra, and Justice Moody’s swing position, see Ross v Consumers Power Co, 93 Mich App 687; 287 NW2d 319 (1979). See also Berkowski v Hall, 91 Mich App 1, 3-4; 282 NW2d 813 (1979).

       1919 PA 218, MCL 318.4 et seq.; MSA 13.1012 et seq. See 1921 PA 17, § 2, as amended, MCL 299.2; MSA 13.2 and 1965 PA 380, § 252, MCL 16.352; MSA 3.29(252), which transferred the functions from the State Park Commission to the Department of Natural Resources.

       1921 PA 17, § 3; MCL 299.3; MSA 13.3.

       The writer notes that he participated in the decision in Daugherty but, for the reasons stated in the text, believes the statement of the rule in Daugherty was overbroad and unnecessary to a decision in that case.