author: D. F. Walsh, P.J.

text:
    COMSTOCK PUBLIC SCHOOLS v WILDFONG
    Docket No. 78-3472.
    Submitted June 13, 1979, at Grand Rapids.
    Decided September 5, 1979.
    Leila Wildfong, a tenured teacher with Comstock Public Schools, was suspended from teaching when four charges were brought against her by the principal of the school at which she taught. Following a hearing on those charges, the school board found that three of the four charges had been proven and that there was reasonable and just cause for the discharge of Wildfong. Wildfong appealed to the State Tenure Commission. Two members of the five-member commission signed an opinion in which, after reviewing the evidence produced at the hearing before the school board, it was concluded that the board had failed to sustain its burden of proof and that there was no reasonable and just cause for the discharge of Wildfong. Two other members of the commission signed an opinion in which, after a review of the evidence, it was found that there was "compelling evidence” against Wildfong. The fifth member of the commission, while expressly declining to join in the reasoning of the two commissioners voting for the reinstatement of Wildfong, concurred in the result in a separate opinion. The opinion of this member did not expressly review the evidence presented, but rather concluded that the evidence did not support the board’s conclusion that Wildfong’s classroom performance justified her dismissal. Comstock Public Schools appealed to the Kalamazoo Circuit Court. Charles H. Mullen, J., reversed the Tenure Commission’s order of reinstatement. Wildfong appeals. Held:

    1. A tenured teacher is entitled to a de novo review by the State Tenure Commission of an adverse decision of the controlling board. At that hearing, the school district bears the burden of proof of showing reasonable and just cause for discharging the tenured teacher.
    2. Judicial review of appeals from the State Tenure Commission involves a determination by the reviewing court, based on a review of the record, whether the proof received by both the school board and the Tenure Commission supports the findings upon which the Tenure Commission’s decision rests. The reviewing court does not, however, review and decide questions of fact decided by the Tenure Commission.

      Reference for Points in Headnotes

       68 Am Jur 2d, Schools §§ 203-205,

      3. The evidence presented supports the conclusions and reasoning set forth in both the two-member opinions. There was substantial evidence supporting the assignment of the relative weight given to the conflicting evidence in both of the two-member opinions.
    4. Failure by the fifth member of the Tenure Commission to state the basis for his conclusion that the evidence did not support the school board’s conclusion that there was justification for the teacher’s dismissal necessitates remand for clarification. If the basis for his conclusion was that the evidence presented, if accepted as true and given significant weight, was not sufficient to establish reasonable and just cause for dismissal, the circuit court’s order should be affirmed; however, if the basis for that conclusion was that he did not believe the school board’s evidence or did not give significant weight to the evidence for some reason or reasons supported in the record, the circuit court’s order should be reversed.
    The circuit court’s judgment is set aside and the matter is remanded to the State Tenure Commission for clarification.
    1. Schools and School Districts — Tenured Teachers — State Tenure Commission — De Novo Review — Burden of Proof.
    A tenured teacher is entitled to a de novo review by the State Tenure Commission of an adverse decision of the controlling board, with the burden of showing reasonable and just cause for discharging the tenured teacher remaining with the school district.
    2. Schools and School Districts — State Tenure Commission — Appeal and Error.
    Judicial review of appeals from the State Tenure Commission requires that the reviewing court determine from the record whether the proof received by both the school board and the Tenure Commission supports the findings upon which the Tenure Commission’s decision rests; however, the reviewing court does not review and decide questions of fact decided by the Tenure Commission.
    3. Schools and School Districts — State Tenure Commission — Appeal and Error.
    Remand to the State Tenure Commission for supplementation and clarification is mandated where the controlling opinion of the Commission fails to set forth the evidence or basis upon which was premised the conclusion that reinstatement of a discharged tenured teacher was required, the Court of Appeals being unable to determine upon the record before it whether the controlling opinion was supported by the proofs received.

      Adams, Burgie, Scott, Ritter & Dornbos, P.C., for plaintiff.

      Foster, Swift, Collins & Coey, P.C. (by Arthur R. Przybylowicz and Lynwood E. Beekman), for defendant.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

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

   D. F. Walsh, P.J.

Defendant appeals the June 30, 1978, order of the Kalamazoo County Circuit Court reversing a May 14, 1976, decision of the State Tenure Commission. By a 3-2 vote, the Tenure Commission had reversed the May 23, 1974, decision of the Comstock School Board to discharge defendant, a tenured elementary school teacher. The Tenure Commission ordered that defendant be reinstated with back pay.

We find merit in only one of the several issues raised on appeal. Our discussion is limited to resolution of that issue.

Defendant had more than 13 years of teaching experience when, on February 18, 1974, four charges were brought against her by the principal of Comstock North Elementary School. The school board suspended defendant pending a hearing on the charges. In response to defendant’s motion for more definite statement, she received a list of 14 specifications. Extensive testimony was taken by the school board in April and May, 1974. In its unanimous decision, the board found that three of the four charges had been proven and that, based thereon, there was reasonable and just cause for the discharge of defendant. Specifically, the board found that the following charges had been proven:

"CHARGE I: Has failed to competently discharge her professional duties, which failure is demonstrated by the respondent’s failure or inability to have a positive effect on the emotional development of students.
"CHARGE II: Has failed to competently discharge her professional duties, which failure is demonstrated by the respondent’s failure or inability to understand the capabilities of students in terms of expectations for work output.
"CHARGE III: Has failed to competently discharge her professional duties, which failure is demonstrated by the respondent’s failure or inability to present lessons in such a manner that students are able to understand the primary purpose of the instruction.”

The board found that the evidence did not support Charge IV:

"Has failed to competently discharge her professional duties, which failure is demonstrated by the respondent’s failure or inability to establish rapport with students in an academic environment.”

Defendant appealed to the State Tenure Commission. MCL 38.121; MSA 15.2021. Two members of the five-member commission signed an opinion in which the evidence produced at the school board hearing was reviewed and it was concluded that the board had failed to sustain its burden of proof and that, based on the evidence, there was no reasonable and just cause for dismissal of defendant. These two commissioners explained why they found the evidence against defendant unpersuasive. They noted, for example, discrepancies between satisfactory written evaluations of defendant’s classroom performance and the testimony offered on behalf of the charging party. Another illustration of the analysis of these commissioners is their finding of discrepancy between the board’s conclusions concerning charges I and IV. They found "basic contradictions” in the board’s finding that defendant had a negative effect on her students’ emotional development but that she did not fail to establish rapport with her students.

Two other members of the commission, in a written opinion, also reviewed the evidence. They found "compelling evidence” against defendant. They concluded that the school board had properly given substantial weight to the adverse testimony of the school superintendent and principal and that the board had given due weight to all other testimony.

Expressly declining to join in the reasoning of the two commissioners voting for reinstatement of defendant, the remaining commissioner filed an opinion in which he concurred in their result. Without expressly reviewing any of the evidence presented to the school board, this commissioner simply stated, "I concur in the result * * * as I feel that * * * the evidence does not support the conclusion of Appellee Board of Education that Appellant’s performance as a classroom teacher justifies her dismissal.”

On appeal to the Tenure Commission from the adverse decision of the controlling board, a tenured teacher is entitled to de novo review. Luther v Board of Education of the Alpena Public Schools, 62 Mich App 32, 35; 233 NW2d 173 (1975), Elgammal v Macomb County Intermediate School Dist Board of Education, 83 Mich App 444, 448; 268 NW2d 679 (1978). As "board of review”, the Tenure Commission is to review and consider the record made before the controlling board but may also take additional testimony. All questions of fact decided by the controlling board, as well as questions of law, are subject to review and de novo determination in an appeal to the Tenure Commission. Long v Board of Education, Dist No 1, Fractional, Royal Oak Township and City of Oak Park, 350 Mich 324; 86 NW2d 275 (1957). The burden of proof remains with the school district; before both the board and the Tenure Commission, the school district bears the burden of showing reasonable and just cause for discharging the tenured teacher. Luther v Alpena Board of Education, supra, at 36-37, Sutherby v Gobles Board of Education, 73 Mich App 506, 508; 252 NW2d 503 (1977), remanded 401 Mich 833 (1977).

On appeal from decisions of the Tenure Commission, the power of reviewing courts is limited. Courts may not review and decide questions of fact decided by the commission. Long v Board of Education, supra, at 326, Freiberg v Board of Education of Big Bay De Noc School Dist, 61 Mich App 404, 416; 232 NW2d 718 (1975). The sole function of reviewing courts is to determine from the record whether the proof received by the school board or the Tenure Commission, or both, supports the findings on which the Tenure Commission decided for or against the appealing teacher. Long v Board of Education, supra, at 326. The precise standard is one of competent, material and substantial evidence on the whole record. Const 1963, art 6, § 28; MCL 24.306(l)(d); MSA 3.560(206)(l)(d). The Supreme Court recently adopted the following interpretation of this standard of review:

"The scope of our review is that set forth in Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974):
" 'The cross-fire of debate at the Constitutional Convention imports meaning to the 'substantial evidence’ standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record—that is, both sides of the record—not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review.’ ” Beebee v Haslett Public Schools (Alter Remand), 406 Mich 224, 231; 278 NW2d 37 (1979).

We have attempted to walk the tightrope described by the Supreme Court. Mindful that we may determine only if the commissioners’ findings are supported by substantial evidence, we decline to substitute our judgment for theirs. We have carefully reviewed the entire record and considered the arguments of the parties, and conclude that the evidence supports "two reasonably differing views”. We have found substantial evidence to support the findings of the two commissioners who voted, after written review of the evidence, to reinstate defendant. There was substantial evidence to support their assignment of relative weight to conflicting evidence. On the other hand, we have found that the findings of the two minority commissioners are likewise supported by substantial evidence. These commissioners, too, were well within their exclusive authority in viewing the evidence as balanced against defendant.

We find that, if the evidence presented on behalf of the charging party were accepted as true and were accorded significant weight, it would have been sufficient basis for dismissal of defendant. In light of the substantial impeaching evidence, however, the two commissioners who, in a comprehensive opinion, voted for reinstatement were justified in declining to attach significant weight to this evidence.

Because the "swing vote” commissioner did not indicate the basis for his conclusion regarding the board’s evidence, we must remand to the Tenure Commission for supplementation and clarification of his opinion. If his decision was that, even if accepted as true and given significant weight, the evidence against defendant was not sufficient to establish reasonable and just cause for dismissal, we would disagree and affirm the circuit court’s order reversing the Tenure Commission’s order of reinstatement. If, however, he did not believe the board’s evidence, for some reason(s) supported in the record, or did not give significant weight to the evidence, also for supportable reasons, we would reverse the circuit court’s order. This commissioner must state his reasons for choosing between the two "reasonably differing views” which are supported by the record.

The circuit court’s judgment is set aside. This matter is remanded to the State Tenure Commission for handling consistent with this opinion. We retain jurisdiction.

       We have carefully reviewed the other issues and have found them to be without merit. With particular reference to defendant’s contention that she was entitled to reinstatement because of the school board’s noncompliance with MCL 38.104(e); MSA 15.2004(e), we note the lack of evidence of prejudice to defendant. Davis v River Rouge Board of Education, 406 Mich 486; 280 NW2d 453 (1979).


source: Caselaw Access Project

author: M. F. Cavanagh, P. J. R. M. Maher, J.

license: Public Domain

text:
    COOK v HAYNES
    Docket No. 78-3507.
    Submitted May 2, 1979, at Lansing.
    Decided September 5, 1979.
    Plaintiffs, Leroy L., Barbara, Donald S. and Verla Cook, filed a complaint against Max Haynes, his wife, Dora, and Randall Hudson alleging ownership of certain land and the destruction of a fence on the property by defendants and praying for damages, injunctive relief and reformation of certain deeds to remove any cloud on plaintiffs’ title to the property. Defendants counterclaimed to quiet title and answered that defendants Haynes had conveyed their interest to Randall T. Hudson and Patricia J. Hudson. Plaintiffs dismissed the defendants Haynes and proceeded to trial against Randall Hudson. On the second day of trial plaintiffs moved to add Patricia Hudson as a defendant, it having been pointed out that she was a necessary party. The Branch Circuit Court, Thomas C. Magarule, J., granted plaintiffs’ motion and adjourned the trial to allow time to serve Mrs. Hudson. An amended complaint was filed adding Mrs. Hudson as a defendant. Plaintiffs requested a pretrial conference date and moved to advance the cause on the calendar. At the pretrial conference the trial court indicated to both counsel that the trial date would be set in the pretrial summary sent to counsel, and, although the pretrial summary was timely mailed to and received by plaintiffs’ counsel, it was never signed by counsel and returned to the clerk, as required by court rule. On the date set by the clerk for trial, plaintiffs failed to appear. The court phoned plaintiffs’ counsel and learned that counsel had neglected to note the trial date. Counsel requested a continuance until that afternoon, and the court refused, noting on the record that plaintiffs had requested an early trial date and that special arrangement had been made to secure the presence of a court reporter, but stated that defense counsel was free to stipulate to adjournment. The court dismissed plaintiffs’ complaint for failure to appear and, after hearing testimony, found in favor of defendants on their counterclaim. On August 14, 1978, plaintiffs’ motion to set aside the dismissal of their complaint and the verdict for defendants on their counterclaim was heard and denied by the trial court. Plaintiffs appeal. Held:

      References for Points in Headnotes

       24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit §§ 53, 69, 88 et seq.

       47 Am Jur 2d, Judgments § 1168.

      The purpose of the trial court’s authority to involuntarily dismiss a case for failure to appear after due notice is to foster judicial control over the docket, but the exercise of this power should be undertaken cautiously. The court rules recognize the need to make allowances in certain circumstances, including where human error is present, and relieve a party from the consequences of a final judgment. The record indicates plaintiffs were not engaged in foot-dragging, there doesn’t appear to be any actual prejudice to defendants and the court had reserved two days for trial. Any inconvenience to the defendants could have been assuaged by the imposition of appropriate costs. The dismissal was too harsh and constituted an abuse of discretion.
    Reversed and remanded.
    R. M. Maher, J., dissented. He would hold that the trial court’s reluctance to allow further delays caused by plaintiffs’ counsel is understandable and did not constitute an abuse of discretion.
    Opinion of the Court
    1. Dismissal and Nonsuit — Court Rules — Involuntary Dismissal.
    The purpose of the trial court’s authority to involuntarily dismiss a case for failure to appear after due notice is to foster judicial control over the docket, but the exercise of this power should be undertaken cautiously; the court rules recognize the need to make allowances for certain circumstances, including where human error is present, and relieve a party from the consequences of a final judgment (GCR 1963, 528.3[1], 528.3[6]).
    Dissent by R. M. Maher, J.
    2. Judgment — Default Judgment — Discretion — Appeal and Error.

      It is within the trial court’s discretion to enter a default judgment against a party who fails to appear at trial after proper notice has been given, and the Court of Appeals should not substitute its judgment for that of the trial court where the record does not show that the trial court acted out of passion or bias rather than logic and reason.

      Smith & Brooker, P.C. (by Michael J. Huffman), for plaintiffs.

      Biringer, Jacox & Hutchinson, P.C., for defendants Hudson.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   M. F. Cavanagh, P. J.

The pertinent facts in this dispute are succinctly stated in our brother’s opinion. Further amplification at this point is unnecessary. We write to state the reasons for which we would reverse the court below.

It is clear from case law that the failure of an attorney to appear after due notice has been given is sufficient grounds for involuntary nonsuit, and that the purpose of permitting a court to dismiss a case on such grounds is to foster judicial control over the docket. Cavataio v City-Wide Cleaners and Dryers, Inc, 23 Mich App 419, 422; 178 NW2d 831 (1970), lv den 383 Mich 806 (1970). However, despite this retained judicial power of involuntary dismissal, exercise of this power should be undertaken cautiously. MacArthur Patton Christian Ass’n v Farm Bureau Insurance Group, 403 Mich 474, 477; 270 NW2d 101 (1978). Furthermore, the court rules recognize the need to make allowances in certain circumstances, including where human error is present, to relieve a party from the consequences of a final order or judgment. GCR 1963, 528.3(1) and (6). It is likewise evident that where a dismissal of a complaint or entry of a default judgment occurred because of the attorney’s nonappearance, the court had made a number of attempts to contact counsel, prior delays in the case had occurred and/or a certain amount of wilful neglect on the attorney’s or his client’s part appeared on the record. Eg., see Banta v Serban, 370 Mich 367; 121 NW2d 854 (1963).

In Heins v Sutphin, 76 Mich App 562; 257 NW2d 169 (1977), the Court considered four factors in deciding whether a court’s refusal to reinstate plaintiffs case after dismissal for no progress constituted an abuse of discretion. Two of these factors seem appropriate to apply to this case: (1) whether the plaintiff had been prosecuting its case with diligence, and (2) whether the defendant was actually prejudiced by the delay caused by plaintiff. Regarding the first, no evidence of foot-dragging by the plaintiff appears. As for the second, since counsel requested an adjournment to the afternoon only, and even after this request was denied, made the effort to appear before the court with witnesses ready to proceed, it is difficult to find any actual prejudice to the defendant.

We do not dispute that a trial judge’s concern for docket control may well be a legitimate justification for a dismissal. Here, however, the case had not been languishing for an unduly long period. Further, the trial court specifically stated it had reserved two days for the trial of the cause. We fail to see why any inconvenience to the defendants by a four-hour delay could not have been assuaged by the imposition of appropriate costs against the plaintiffs.

The course chosen by the trial court under the circumstances here present was too harsh and constituted an abuse of discretion. The principle stated in Hormel v Helvering, 312 US 552, 557; 61 S Ct 719; 85 L Ed 1037 (1941), "[r]ules of practice and procedure are devised to promote the ends of justice, not to defeat them. * * * Orderly rules of procedure do not require sacrifice of the rules of fundamental justice”, is apposite here. Accordingly, we reverse and remand for a new trial.

W. Van Valkenburg, J., concurred.

R. M. Maher, J.

(dissenting). On August 14, 1978, the trial court entered a judgment dismissing plaintiffs’ complaint for failure to appear for trial and granting defendants-appellees’ counterclaim giving them free and clear title to a certain piece of disputed property in Branch County. Plaintiffs appeal as of right.

On January 2, 1976, plaintiffs filed a complaint against Max Haynes, his wife, Dora, and Randall Hudson. The complaint alleged that plaintiffs were the owners of a certain piece of property and that they and their predecessors had used the property for at least 37 years. Plaintiffs further alleged that defendants had destroyed a fence which was on plaintiffs’ property, defendants being the owners of an adjacent parcel of property. The complaint prayed for damages in the amount of $30,000, a restraining order forbidding defendants from activities on the disputed land, and reform of plaintiffs’ and defendants’ deeds to remove any cloud on plaintiffs’ title.

On January 23, 1976, defendants filed their answer, along with a counterclaim seeking to quiet title to the disputed property. In their counterclaim defendants alleged, inter alia, the defendants Haynes had conveyed their interest in the subject property to Randall T. Hudson and Patricia J. Hudson, by warranty deed dated December 10, 1975. A copy of the deed was attached to the pleadings. On February 13, 1976, the parties filed a stipulation dismissing with prejudice the complaint against defendants Haynes because they retained no interest in the subject property.

Trial commenced on June 23, 1977. After presenting testimony of five witnesses and after the trial court had visited the property in question, plaintiffs’ counsel moved on the second day of trial to add Patricia J. Hudson as a defendant, defense counsel having pointed out that Mrs. Hudson was a necessary party to the action. The trial court granted the motion to add Mrs. Hudson as a defendant, but refused to order the trial to continue as if she had been a party from the outset, unless Mrs. Hudson stipulated to such a procedure. At this point the proceedings were adjourned to allow plaintiffs’ counsel to serve Mrs. Hudson with a complaint and summons.

On August 10, 1977, an amended complaint was filed adding Patricia Hudson as a defendant. Apparently no stipulation was ever filed with regard to continuing the trial from the point of interruption on June 24, 1977, as the record discloses that plaintiffs’ counsel requested a new pretrial date on December 5, 1977, followed by a December 12, 1977, motion to advance the cause on the calendar.

The new pretrial conference was held January 11, 1978, at which time the trial court indicated to both counsel that the trial date would be set in the pretrial summary sent to counsel. Although the pretrial summary was timely mailed to and received by counsel for plaintiffs, it was never signed by counsel and returned to the clerk of court, as required by court rule.

On July 27, 1978, the date set by the court for trial, plaintiffs failed to appear. The court telephoned the office of plaintiffs’ counsel and learned that counsel had neglected to place the date on his calendar. Plaintiffs’ counsel requested that the court adjourn the matter until the afternoon. The court refused, noting on the record that plaintiffs had requested an early trial date and that special arrangements had been made to secure the presence of a court reporter, but stated that defense counsel was free to stipulate to adjournment. Defense counsel declined to stipulate to adjournment. The court dismissed plaintiffs’ complaint for failure to appear and, after hearing testimony, found in favor of defendants on their counterclaim. On August 14, 1978, plaintiffs’ motion to set aside the dismissal of their complaint and the verdict for defendants on their counterclaim was heard and denied by the trial court.

Counsel for plaintiffs argued in the trial court and urges on appeal that the pretrial summary was not a proper notice of trial under the court rules, and that plaintiffs therefore never had actual notice of the trial date. GCR 1963, 501.2 authorizes circuit courts to provide by rule a method for setting trial dates. Rule 10 of the Branch County Circuit Court, as quoted in plaintiffs’ brief, provides:

"Actions shall be assigned for trial at the pretrial conference, unless otherwise directed by the court.”

The trial court recalled stating at the pretrial conference that the trial date would be set in the pretrial summary. Counsel for plaintiffs recalled the court having said that notice of trial would be forthcoming. No matter whose memory is the more accurate, it cannot be denied that counsel in fact received the pretrial summary, that the summary unequivocally stated that trial was set for July 27, 1978, and that counsel failed both to return the pretrial summary and to appear for trial.

It is within the trial court’s discretion to enter a default judgment against a party who fails to appear at trial after proper notice has been given, Muscio v Muscio, 62 Mich App 167; 233 NW2d 224 (1975), Butler v Cann, 62 Mich App 663; 233 NW2d 827 (1975). I am of the opinion that the trial court did not abuse its discretion in finding that plaintiffs had actual and proper notice of trial and that their failure to appear was not excusable neglect, especially in view of the history of the case. The court had earlier expended one and one-half days hearing testimony which proved to be useless because a necessary party had not been joined by plaintiffs, despite the fact that defendants’ counterclaim put them on notice of her existence. Plaintiffs had moved to have the case advanced on the calendar, and a second pretrial conference had been held shortly thereafter. Two more days of court time had been set aside for the second attempt at trial. The trial court’s reluctance to allow further delays caused by plaintiffs’ counsel is certainly understandable under the circumstances. Defendants as well as the court had invested considerable time and effort in the case; through no fault of theirs, little, if any, progress had been made in the matter.

Had we been in the position of the trial court, we might have acted differently; however, the record does not show that the trial court acted out of passion or bias rather than logically and reasonably, and we should not substitute our judgment for that of the trial court, In re Kyung Won Kim, 72 Mich App 85; 249 NW2d 305 (1976).

I would affirm.

       The Court Administrator’s official statistics for the July, 1978 period (trial was July 27, 1978) indicate that this circuit had 483 cases pending for the period July 1, 1978, to December 31, 1978; for the period July 1, 1977, to June 30, 1978, the court had 545 cases pending. These figures compare with the statewide average of 882 cases pending per judge; with the Region III (18 southwestern counties, including this circuit) per judge average of 642 pending cases; and with the Region II per judge average of 935 cases. (These figures are the last official averages available, and are the averages for fiscal year 1976-1977. Unofficially, for 1977-78, the statewide average was 777 cases per judge, excluding Wayne and six other circuits not reporting). The per judge case average for Wayne County, again by way of contrast, was 1,471 for 1976-77; and from July 1, 1977, to June 30, 1978, the circuit court in Wayne County had 30,000 pending cases. It is obvious, therefore, that this circuit’s average caseload is well below the state and even below the Region III average. Furthermore, it appears that the average non-jury trial in this circuit takes between one-half and one entire day to complete.

       It should be noted that this same procedure was followed in setting the original trial date. That date was adjourned by stipulation of the parties, and a new date was set by the trial court and noticed to the parties.


author: D. C. Riley, J. N. J. Kaufman, P.J.

text:
    CLINTON TOWNSHIP v CONTRERA
    Docket No. 78-3688.
    Submitted June 18, 1979, at Detroit.
    Decided September 5, 1979.
    William Contrera was employed by the Township of Clinton, Macomb County, as a Clinton Township Police Officer. He was subjected to disciplinary action on two separate occasions, the first involving suspension and the second resulting in his discharge. A grievance was filed under the collective bargaining agreement between the township and the Police Officers Association of Michigan, the bargaining agent for the Clinton Township Police Officers, protesting the disciplinary actions. The grievance was processed to the point where Contrera and the association requested arbitration, which was provided for in the collective bargaining agreement, and the township refused to submit the grievance to arbitration. The township then filed a complaint against Contrera and the Police Officer’s Association of Michigan for a declaratory judgment that the suspension and discharge are not subject to the grievance procedures of the agreement and are not arbitrable, and to enjoin the defendants from seeking arbitration. The Macomb Circuit Court, Hunter D. Stair, J., entered a judgment in favor of the township, finding that defendants’ remedy was to proceed under the provisions of the firemen and policemen civil service act, which the collective bargaining agreement incorporated by reference, and enjoined the defendants from proceeding further with arbitration. Defendants appeal, alleging that the grievance was arbitrable and that the adoption of the firemen and policemen civil service act does not preclude enforcement of the contractual arbitration clause. Held:

      References for Points in Headnotes

       5 Am Jur 2d, Arbitration and Award §§ 14, 15, 54.
    48A Am Jur 2d, Labor and Labor Relations §§ 1853, 1862.

       5 Am Jur 2d, Arbitration and Award § 15.
    48A Am Jur 2d, Labor and Labor Relations § 1854 et seq.

       5 Am Jur 2d, Arbitration and Award § 15.

       5 Am Jur 2d, Arbitration and Award § 54.
    48A Am Jur 2d, Labor and Labor Relations § 1861.

       48A Am Jur 2d, Labor and Labor Relations § 1861.

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

       73 Am Jur 2d, Statutes § 254.

       48A Am Jur 2d, Labor and Labor Relations § 1800.

       48A Am Jur 2d, Labor and labor Relations § 1773.

      1. The suspension and discharge may arguably be covered by the contract’s arbitration clause and the reference in the contract to the firemen and policemen civil service act does not expressly exclude arbitration of disciplinary actions. Whether or not the agreement provides arbitration of disputes as to disciplinary actions as an alternative to the civil service provisions is a preliminary question which is subject to arbitration.
    2. The provisions of the collective bargaining agreement, arrived at under the public employment relations act, are not inconsistent with the firemen and policemen civil service act, which provides for a public hearing before the civil service commission if the grievant so desires. The collective bargaining agreement provides the grievant with the option of a hearing or of proceeding to arbitration, and thereby supplements the civil service procedures.
    Reversed and remanded.
    N. J. Kaufman, P.J., concurred. He finds that the language of the collective bargaining agreement authorized by the public employment relations act cannot be read to reach the proposition that a city and the bargaining agent of its employees cannot agree to arbitration of their disputes in regard to disciplinary actions.
    Opinion of the Court
    1. Arbitration and Award — Arbitration Clauses — Judicial Consideration.
    Arbitration is a matter of contract, and the scope of judicial consideration of an arbitration agreement is sharply limited; arbitration clauses in contracts are to be liberally construed, resolving any doubts about the arbitrability of an issue in favor of arbitration.
    2. Arbitration and Award — Arbitrability — Three-Stage Inquiry.
    A three-stage inquiry is necessary to resolve the question of whether an issue is arbitrable: (1) whether there is an arbitration agreement in a contract between the parties, (2) whether the dispute is arguably covered by the contract and arbitration clause, and (3) whether the dispute is expressly exempt from arbitration by the terms of the contract.

      3. Arbitration and Award — Arbitrability — Judicial Consideration.
    The question for a court in determining the arbitrability of an issue is not whether one interpretation of a contract or another is correct, but whether the parties have agreed that an arbitrator shall decide which of the competing interpretations is correct.
    4. Labor Relations — Municipal Corporations — Firemen and Policemen — Arbitration — Civil Service — Statutes.
    The question of whether a collective bargaining agreement provides for an alternative method of review via arbitration of disputes as to disciplinary actions over and beyond the review available through civil service provisions is a preliminary question which is subject to arbitration where the collective bargaining agreement provides that a grievance may be submitted to arbitration or to the civil service commission and also provides that promotions, lay-offs, suspensions, discharges and reinstatements are subject to the civil service provisions of the firemen and policemen civil service act (MCL 38.501 et seq.; MSA 5.3351 et seq.),

    5. Labor Relations — Public Employment Relations Act — Mandatory Subjects of Bargaining — Statutes.
    Disciplinary procedures and the proposal of a compulsory grievance arbitration clause are mandatory subjects of bargaining under the public employment relations act (MCL 423.201 et seq.; MSA 17.455[1] et seq.),

    6. Labor Relations — Public Employment Relations Act — Statutes.
    The public employment relations act is the dominant law regulating public employee labor relations and was intended by the Legislature to govern conflicting law (MCL 423.201 et seq,; MSA 17.455[1] et seq,).

    7. Statutes — Construction of Statutes.
    Statutes generally covering the same subject are to be construed together, preserving, if possible, the intent and meaning of each by judicial interpretation through which neither statute denies the effectiveness of the other.
    8. Labor Relations — Municipal Corporations — Firemen and Policemen — Collective Bargaining Agreement — Grievances — Statutes.
    A section of the firemen and policemen civil service act which provides for an opportunity for a public hearing if an aggrieved employee demands it does not conflict with a grievance procedure contained in a collective bargaining agreement between a township and its police officers which provides a grievant with the option of a hearing before the township civil service commission or of submitting the grievance to an arbitrator (MCL 38.514; MSA 5.3364).
    Concurrence by N. J. Kaufman, P.J.
    9. Labor Relations — Municipal Corporations — Public Employment Relations Act — Arbitration — Statutes.

      A municipality and its employees’ bargaining agent may agree to arbitration of their disputes in regard to disciplinary actions in a collective bargaining agreement authorized by the public employment relations act (MCL 423.201 et seq.; MSA 17.455[1] et seq.).

      Towner, Rosin, York & McNamara (by Fred A. York and John A. Dolan), for plaintiff.

      Gregory, Van Lopik, Korney & Moore (by W. Glen Jeakle, II), for defendants.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   D. C. Riley, J.

We are presented with another conflict between the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., (hereinafter PERA), and the firemen and policemen civil service act, MCL 38.501 et seq.; MSA 5.3351 et seq. (hereinafter Act 78).

The PERA prohibits strikes by public employees while permitting such employees to bargain collectively with their employers. Defendant Police Officers Association of Michigan is the exclusive bargaining agent under the PERA for certain law enforcement officers of the Township of Clinton. At the time the collective bargaining agreement at issue was entered into by the parties, Act 78, which provides for a civil service system governing, inter alia, the appointment, promotion, suspension and discharge of firemen and policemen, was in effect in Clinton Township pursuant to a prior vote by the electorate. MCL 38.517a; MSA 5.3368.

Article IV of the collective bargaining agreement provides for a grievance and arbitration procedure. A grievance is defined as:

"[A]ny difference that may arise between the parties relative to:
"1. Any matter involving an alleged violation of any other provisions of this agreement or Act 78 of the Public Acts of the State of Michigan of 1935 as amended.”

Section A of Article IV sets forth the steps necessary to process a grievance and provides in part as follows:

"Arbitration or an Act 78 Civil Service Hearing: If a satisfactory settlement is not reached in Step Two or Step Three, or if the Township Board does not meet with the Union within the fifteen (15) day limitation or if the written answer is not submitted within the ten (10) day limit as prescribed in Step Three, the moving party can either proceed to binding arbitration as set forth below or petition the Township Civil Service for a hearing; provided, however, that once the election is made by the moving party, they forfeit the right to withdraw that election and proceed on the other remedy."

Section C allows for the opportunity of a civil service hearing. It states in applicable part:

"Any unresolved grievances having not been submitted to the American Arbitration Association may be submitted to the Civil Service Commission. Said Commission will be in compliance with Act No. 78 of the Public Acts of the State of Michigan for 1935, as amended.
"The moving party herein will not be allowed to submit unresolved grievances to both the American Arbitration Association and the Civil Service. The submission of the unresolved grievance to either the American Arbitration Association or the Civil Service Commission will preempt the moving party from submitting the unresolved grievance to the body that the grievance has not been submitted to.
"Grievances affecting a number of employees may be treated as a policy grievance and entered at the second step of grievance procedure by the Association.”

Finally, Article V of the agreement contains the following crucial provision:

"PROMOTIONS; LAY-OFFS, SUSPENSIONS, DISCHARGES AND RE-INSTATEMENTS
"The provisions of Act No. 78 of the Public Acts of the State of Michigan for 1935, as amended, are adopted by reference as if fully stated herein.”

On two separate occasions, defendant William Contrera was subject to disciplinary action by the township, the first involving suspension and the second resulting in discharge. A grievance was filed under the collective bargaining agreement, which grievance stated that Contrera had been disciplined without cause in violation of § 14 of Act 78, infra. The grievance was processed to the point of request for arbitration, which was refused by the township.

Plaintiff township then filed a complaint for declaratory judgment and incidental relief, requesting that defendants be permanently enjoined from seeking arbitration. The requested relief was granted by the court below.

Defendants appeal, raising two issues, and first allege that the grievance protesting the township’s disciplinary action was arbitrable within the terms of the collective bargaining agreement.

Arbitration is a matter of contract, Kaleva-Norman-Dickson School District No 6 v Kaleva-Norman-Dickson School Teachers’ Association, 393 Mich 583, 587; 227 NW2d 500 (1975), and while the question of arbitration is for the court, Kaleva, supra, Brown v Holton Public Schools, 62 Mich App 328, 331; 233 NW2d 274 (1975), vacated on other grounds, 397 Mich 71; 243 NW2d 255 (1976), the scope of judicial consideration is sharply limited.

"Public policy in this state favors arbitration in the resolution of disputes. Kaleva-Norman-Dickson School District No 6 v Kaleva-Norman-Dickson School Teachers’ Association, 393 Mich 583; 227 NW2d 500 (1975). Arbitration clauses contained in contracts are to be liberally construed, Stadel v Granger Brothers, Inc, 4 Mich App 250, 258; 144 NW2d 609 (1966), resolving any doubts about the arbitrability of an issue in favor of arbitration. Chippewa Valley Schools v Hill, 62 Mich App 116; 233 NW2d 208 (1975), lv den, 395 Mich 806 (1975). If the arbitration clause arguably includes the asserted dispute, then arbitration should be ordered upon proper motion. GCR 1963, 769. Kaleva-Norman-Dickson School District No 6 v Kaleva-Norman-Dickson School Teachers’ Association, supra, at 592, Ferris State College v Ferris Faculty Association, 72 Mich App 244; 249 NW2d 375 (1976).” Campbell v Community Service Ins Co, 73 Mich App 416, 419; 251 NW2d 609 (1977).

See also American Fidelity Fire Ins Co v Barry, 80 Mich App 670, 673-674; 264 NW2d 92 (1978), lv den 402 Mich 915 (1978).

"Absent an 'express provision excluding [a] particular grievance from arbitration’ or the ’most forceful evidence of a purpose to exclude the claim’, (emphasis supplied) the matter should go to arbitration:” Kaleva, supra, at 592, quoting United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574, 584-585; 80 S Ct 1347; 4 L Ed 2d 1409 (1960).

The arbitrability of an issue requires a three-stage inquiry: (1) whether there exists an arbitration agreement in a contract between the parties, (2) whether the dispute is arguably covered by the contract and arbitration clause, and (3) whether the dispute is expressly exempt by the terms of the contract. American Fidelity Fire Ins Co, supra, at 674-676.

Applying the foregoing principles to the case at bar, the collective bargaining agreement plainly contains an arbitration clause. Article IV specifically permits the settlement of grievances by means of binding arbitration at the grievant’s option. As noted supra, Article IV defines a grievance, inter alia, to include any alleged violation of Act 78. Section 14 of that act provides that "[n]o member of any fire or police department within the terms of this act shall be removed, discharged, * * * suspended or otherwise punished except for cause,” * * * MCL 38.514; MSA 5.3364 (emphasis supplied). Defendants’ allegation, that Contrera’s suspension and discharge without cause is arguably covered by the arbitration clause, cannot be said to lack merit.

Plaintiff maintains, however, that article V excludes suspensions and discharges from coverage by the arbitration clause due to its specific reference to Act 78 only. We cannot agree. In our opinion, Article V does not expressly exclude arbitration of such disciplinary actions since it does not mention arbitration at all. Hence, at best, its meaning is amorphous. In effect, plaintiff invites us to engage in a practice denigrated by the Supreme Court:

"Where a court finds itself weighing the pros and cons of each party’s interpretation of substantive provisions of the contract, it is likely that the court has gone astray. The question for the court is not whether one interpretation or another is correct, but whether the parties have agreed that an arbitrator shall decide which of the competing interpretations is correct.” Kaleva, supra, at 595.

The contract provisions in the case at bar are not unlike those presented in Kaleva where the Court found that the dispute as to whether or not the contract applied was subject to arbitration to determine the meaning and the application of the contract. Accordingly, we hold, on these facts, that whether the collective bargaining agreement provides for an alternative method of review via arbitration of disputes as to disciplinary actions over and beyond the civil service provisions is a preliminary question which is subject to arbitration.

However, we must next determine whether the adoption of Act 78 by a public employer precludes the enforcement of a binding arbitration clause regarding disciplinary action negotiated pursuant to the PERA.

There can be no quarrel that the Article IV grievance schedule, as it relates to disciplinary procedures, was a legitimate exercise of collective bargaining. Section 15 of the PERA requires that a public employer bargain collectively "with respect to wages, hours, and other terms and conditions of employment * * *”, MCL 423.215; MSA 17.455(15). In Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674, 677, 681; 246 NW2d 831 (1976), the Supreme Court determined that disciplinary procedures and the proposal of a compulsory grievance arbitration clause were mandatory subjects of bargaining under the PERA.

The dilemma arises with § 14 of Act 78, which delineates the method for removal and suspension of a police officer. Among other things, it requires that there be no punishment except for cause, supra, written notice of the reasons for discipline, and provides that "[iff the person sought to be removed or reduced shall demand it, the civil service commission shall grant him a public hearing,” * * *, MCL 38.514; MSA 5.3364. (Emphasis supplied.) The grievance provisions contained in the present agreement provide, at the option of the grievant, an alternative appeal route through final and binding arbitration. Once the grievant has opted for a hearing before the civil service commission or an arbitrator, however, he is then precluded from taking his appeal to the other tribunal.

The trial court in the instant case found that giving effect to this clause of the agreement would nullify Act 78. The court ostensibly reasoned that the PERA could not be held to "so sanctify contracts as to allow them to violate or to be construed to ignore the provisions of another controlling statute so as to render that statute a nullity”. In part, we are constrained to disagree, both as to premise and result. In doing so, however, we must consider a triad of cases which might be read to suggest a dissonant result.

In Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976), the Supreme Court, in a 4-3 decision, ruled that defendants were not bound by a collective bargaining agreement grievance procedure which terminated in final and binding arbitration, because the employee was discharged in accordance with the procedures of the probation officer removal statute. MCL 771.10; MSA 28.1140. Although it may be argued that this decision renders all such arbitration clauses suspect, the combined majority’s holding was clearly premised upon a concern for any potential constitutional conflict resulting from legislative interference in the functioning of the judiciary:

"Submission of that decision to a grievance procedure with binding arbitration could result in a reinstatement of a probation officer in which the court could no longer place trust or confidence. We cannot accept that the Legislature in adopting § 15 of the PERA in 1965 meant to encumber the judicial process in such a manner.” Council No 23, supra, at 7. See also concurring opinion of Williams, J., supra, at 9, 15.

No such constitutional conflict arises in the present case.

Sloan v Warren Civil Service Comm, 26 Mich App 555; 182 NW2d 815 (1970), involved a clash between a labor agreement negotiated under the PERA and the jurisdiction of the local civil service commission. There, plaintiff was city-employed in the water department, but was replaced by another worker with higher seniority from the sanitation department when that department was eliminated by the city. The bumping was accomplished pursuant to a provision in the collective bargaining agreement permitting laid-off employees to displace others with lesser seniority and lower, or equal, job classifications. The city civil service commission found that the bumping employee’s prior job classification involved a lesser degree of responsibility, authority or technical ability than plaintiff’s job classification, and ordered plaintiff reinstated. This Court affirmed, holding that the commission, established by city ordinance in 1958, was empowered by that ordinance to resolve the dispute in issue. In rejecting defendant’s argument that under the PERA, enacted in 1965, collective bargaining agreements must prevail over civil service provisions, the Court emphasized that Const 1963, art 11, § 6, precluded modification or discontinuance of the civil service plan without a vote of the people. That section provides:

"By ordinance or resolution of its governing body which shall not take effectuntil approved by a majority of the electors voting thereon, unless otherwise provided by charter, each county, township, city, village, school district and other governmental unit or authority may establish, modify or discontinue a merit system for its employees.”

Thus, the Legislature could not displace from the commission those responsibilities which the Michigan Constitution sought to preserve. Sloan, supra, at 563-564.

Finally, in Local 1383 of the International Ass’n of Firefighters v City of Warren, 89 Mich App 135; 279 NW2d 556 (1979), the Court of Appeals nullified a provision of the collective bargaining agreement signed by plaintiff and the city which purported to govern promotion within the fire department, because it conflicted with Act 78, under which the civil service commission was empowered to ascertain the qualifications and fitness for promotion of fire department employees. Reasoning in nearly identical fashion to the Sloan Court, the panel held that the Michigan Constitution precluded a collective bargaining agreement, properly arrived at under the PERA, from extinguishing the commission’s power conferred to it by Act 78:

"Were the instant conflicts solely between the statutory provisions of PERA and Act 78, we would probably find Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974), controlling so as to require a finding that the provisions of the collective bargaining agreement prevailed over conflicting Civil Service Commission promotional guidelines. However, in the face of conflict with Const 1963, art 11, § 6, we hold that the provisions of the collective bargaining agreement cannot modify or alter an existing civil service system.” Local 1383, supra, at 143.

What emerges, perhaps, from a consideration of these decisions is that where a provision of a collective bargaining agreement directly interferes with a co-equal branch of the government and thereby impinges upon the separation of powers doctrine (Council 23), or where it strips the local civil service commission of its constitutionally protected authority (Sloan and Local 1381), that provision is unenforceable.

We endeavor to note, however, that the authority under which the PERA was enacted itself germinates from constitutional soil. Const 1963, art 4, § 48 vests authority in the Legislature to:

"enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.”

The Supreme Court has, on previous occasion, held that the PERA, designed and construed to be the dominant law regulating public employee labor relations, Rockwell v Crestwood School District Board of Education, 393 Mich 616, 629-630; 227 NW2d 736 (1975), was intended by the Legislature to govern conflicting law "and is superimposed even on those institutions which derive their powers from the Constitution itself’, Central Michi gan University Faculty Ass’n v Central Michigan University, 404 Mich 268, 279; 273 NW2d 21 (1978).

Nevertheless, we find it unnecessary to ground our decision on this basis, for we turn to rudimentary precepts of statutory construction in order to arrive at what we perceive is the correct result in the present case. One rule is to construe together statutes generally covering the same subject and thereby, if at all possible, preserve the intent and meaning of each by judicial interpretation through which neither denies the effectiveness of the other. Borden, Inc v Dept of Treasury, 391 Mich 495, 523; 218 NW2d 667 (1974), Paquin v Northern Michigan University, 79 Mich App 605, 607; 262 NW2d 672 (1977), and cases cited therein.

In the case at bar, we do not find the PERA, under which authority the present contract was enacted, and Act 78, antithetical. The application of each in the present case involves no positive repugnancy, Council 23, supra, at 8-11, nor are the procedures set forth in Article IV of the collective bargaining agreement in any way inconsistent with Act 78. Section 14 provides only for an opportunity for a public hearing if the grievant shall demand it. It is permissive rather than mandatory. The grievance procedure contained in the collective bargaining agreement provides the grievant with the option of a hearing before the commission or before an arbitrator. It therefore supplements, rather than replaces, the procedures outlined in § 14. The grievant, if he wishes, may still take his appeal to the commission. Thus, contra to Sloan and Local 1383, supra, no authority is removed from the township civil service commission.

The decision of the lower court to enjoin enforcement of the arbitration grievance procedure is reversed and the case is remanded for proceedings not inconsistent with this opinion.

Costs to defendants.

J. X. Theiler, J., concurred.

N. J. Kaufman, P.J.

(concurring). I concur wholeheartedly in the well-written opinion of Judge Riley. However, I find it necessary to write separately because of the fact that I was one of the members of the panel in Local 1383 of the International Ass’n of Firefighters v City of Warren, 89 Mich App 135; 279 NW2d 556 (1979).

Simply put, the Warren case does not stand for the proposition that all matters within the province of Act 78 are precluded from collective bar-, gaining. If anything, quite the contrary is true. The factual situation in Warren regarding promotions is not analogous to the facts in this case. In this case we have a collective bargaining agreement authorized by PERA which allows arbitration in matters involving disciplinary matters, which includes discharges and suspensions, and the language therein, as properly noted by Judge Riley, cannot be read at all to reach the proposition that a city and its employees’ bargaining agent cannot agree to arbitration of their disputes in regard to disciplinary actions.

Therefore, I concur.

       "The foregoing provisions of this act shall not take effect in any city, village or municipality until approved by a majority of the electors voting thereon at an election at which the question of adoption of this act for that city, village or municipality is properly submitted.” MCL 38.517a; MSA 5.3368.

       The lower court did not determine whether the agreement actually required arbitration of disciplinary grievances.

       Three members of the majority were also of the opinion that, of the two statutes at issue, the PERA, MCL 423.201 et seq.; MSA 17.455(1) et seq., and the probation officer removal statute, MCL 771.10; MSA 28.1140, the latter was more specific and therefore controlling. Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1, 6; 248 NW2d 220 (1976). The fourth member noted that there was no "positive repugnancy” between the two legislative enactments.

       "Supporting this finding is the consideration that legislative intention to delegate to a private person the power to remove or reinstate so sensitive a judicial official as a probation officer, because of constitutional implications, could not be presumed absent specific language to that effect.” Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1, 9; 248 NW2d 220 (1976).

       "On and after the date this act takes effect, appointments to and promotions in all paid fire and/or police departments of cities, villages or municipalities of any population whatsoever shall be made only according to qualifications and fitness to be ascertained by examinations, which shall be competitive, and no person shall be appointed, reinstated, promoted or discharged as a paid member of said departments regardless of rank or position, in any fire or police department of any city, village or municipality in the state of Michigan, in any manner or by any means other than those prescribed in this act.” MCL 38.507; MSA 5.3357.

         See, e.g., Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974), Regents of the University of Michigan v Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973).

       An argument that certain public employers should be insulated from the collective bargaining obligation of the PERA due to constitutional and statutory grants of authority was raised and rejected in Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674; 246 NW2d 831 (1976). Despite three separate opinions, all participating justices agreed that the public employer’s duty to bargain collectively under the PERA superseded conflicting provisions of a home-rule city charter. Const 1963, art 7, §§ 23, 34, home rule cities act, MCL 117.1 et seq.; MSA 5.2071 et seq.

      See also Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974), and Wayne County Civil Service Comm v Board of Supervisors, 384 Mich 363, 374; 184 NW2d 201 (1971), where the Supreme Court determined that the original authority and duty of the Wayne County Civil Service Commission "was diminished pro tanto” by the PERA "to the extent of free administration of the latter”.


author: Allen, P.J.

text:
    ATKINS v DEPARTMENT OF SOCIAL SERVICES
    Docket No. 78-3699.
    Submitted June 12, 1979, at Lansing.
    Decided September 5, 1979.
    Craig and Deborah Atkins applied to the Department of Social Services for renewal of their license to operate a family day care home. Their application was denied and they requested a hearing. After an initial adjournment a hearing was scheduled and the Atkinses and their attorney were properly notified of the hearing. At the appointed time neither the Atkinses nor their attorney appeared. The administrative law judge stated on the record that he had been advised that the attorney had contacted the hearings bureau and reported that he would be able to attend a hearing later in the day and that he had been advised that a change in time would be all right. The administrative law judge stated that neither he nor anyone else in the bureau office had received either an oral or written request for an adjournment, and proceeded with the hearing without the presence of Mr. and Mrs. Atkins or their attorney. As a result of the hearing, the denial of the license was upheld. This decision was upheld on appeal by the Washtenaw Circuit Court, Ross W. Campbell, J., and Mr. and Mrs. Atkins appeal. They allege that they were denied due process of law by the administrative law judge’s decision to conduct the hearing without their being present, that the decision is not supported by competent, material, and substantial evidence on the whole record, that the department lacks the authority to deny the license on the basis of a finding of unsuitability of Craig Atkins where he is not directly responsible for the care of the children, and that the administrative law judge’s failure to grant a provisional license was an abuse of discretion. Held:

    1. The plaintiffs have alleged that the reason they were not present at the hearing was that their attorney had been granted an adjournment until later that day by an unidentified person at the hearings bureau whom the attorney spoke to by telephone. If so, the plaintiffs’ absence would be justified and the hearing should not have been held without the plaintiffs present. Because it is a question of fact whether or not an adjournment had been granted by telephone, the case is remanded to the circuit court for a determination of whether or not an adjournment had been granted, and, if so, a new hearing is to be held.

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law §§ 398, 399, 414.

       2 Am Jur 2d, Administrative Law § 549.

       1 Am Jur 2d, Administrative Law §§ 140, 186.

       1 Am Jur 2d, Administrative Law §§ 140, 180, 186.

      2. The decision of the administrative law judge is supported by competent, material, and substantial evidence on the whole record.
    3. The Department of Social Services properly scrutinized the suitability of Craig Atkins. Although he arguably would not be directly responsible for the care of the children, he is one of the applicants for a license and there is general statutory authority for questioning the competence of applicants.
    4. The grant of a provisional license by an administrative law judge is a matter of discretion, and the plaintiffs have not demonstrated an abuse of discretion by the judge.
    Remanded with instructions.
    1. Administrative Law — Hearings — Notice — Statutes.
    A person entitled to an administrative hearing is also entitled to reasonable notice of that hearing; and, if a party fails to appear in a contested case after proper service of notice, the agency, if no adjournment is granted, may proceed with the hearing and make its decision in the absence of the party (MCL 24.271, 24.272[1]; MSA 3.560[171], 3.560[172][1]).
    2. Administrative Law — Appeal and Error — Competent, Material and Substantial Evidence — Constitutional Law — Statutes.
    The standard of review of a decision of an administrative law judge is whether the decision is supported by competent, material and substantial evidence on the whole record (Const 1963, art 6, § 28, MCL 24.306[l][d]; MSA 3.560[206][l][d]).
    3. Administrative Law — Licenses — Child Care Organizations — Rules — Statutes.
    The Department of Social Services has the authority to promulgate rules regarding the licensing of family day care homes and to disqualify applicants for licenses because of problems found to exist or which might exist within the day care home during any 24-hour period in which children are received for care (MCL 722.112[1]; MSA 25.358[12][1]).

      4. Administrative Law — Licenses — Child Care Organizations — Statutes — Rules.
    An administrative rule which requires that all persons living in á family day care home are to be of responsible character does not conflict with á statute which provides that administrative rules for licensing such homes are to be limited to scrutiny of those persons directly responsible for the care and welfare of the children served by the home; all relevant and pertinent aspects of the household should be examined in order to provide for the protection of children, and a person who was listed as one of the applicants for a license to operate a family day care home was properly scrutinized as to his competence to provide the necessary care for children even though he arguably would not be present in the home during the times when children would be present (MCL 722.112[3][b], [c]; MSA 25.358[12][3][b], [c]; 1975 AACS R 400.1302[2]).
    5. Licenses — Administrative Law — Child Care Organizations — Statutes — Discretion — Appeal and Error.
    The Department of Social Services has the discretion to issue of not to issue a provisional license to a child care organization which is seeking renewal of its license and which is temporarily unable to conform to the rules governing such licensees, and the department’s decision should not be interfered with absent a demonstrated abuse of that discretion (MCL 722.117; MSA 25.358[17]).

      Garris & Garris, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Janis Meija and R. Philip Brown, Assistants Attorney General, for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E.; Holbrook, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Allen, P.J.

Plaintiffs, Craig Atkins and his wife Deborah, appeal from a circuit court judgment affirming an order issued by an administrative laW judge upholding the decision of the defendant, Michigan Department of Social Services, which denied renewal of plaintiffs’ license to operate a family day care home.

On April 21, 1977, defendant denied plaintiffs’ request for renewal of a family day care home license because of "substantial non-compliance with § 5 of [1973 Public] Act 116 and Rule 400.1302”. Plaintiffs appealed this administrative determination and requested a hearing for review of their license application.

A hearing on the matter was scheduled for 10 a.m., August 24, 1977, before the Department of Social Services, Bureau of Administrative Hearings. Written notice of the hearing was sent by registered mail to the plaintiffs and their attorney pursuant to MCL 722.121(2); MSA 25.358(21)(2), MCL 24.271; MSA 3.560(171). On the face of this notice was stated: "PLEASE BE ON TIME FOR THIS HEARING”. Lengthy instructions also appear on the notice and read in pertinent part:

"POSTPONEMENTS: If good reasons exist which prevent you from appearing at the hearing, you should request a postponement from the Department of Social Services, Bureau of Administrative Hearings, 300 S. Capitol Avenue, Lansing, Michigan, 48926, or telephone (517) 373-0722. No request for postponement will be granted unless good and sufficient grounds are shown.
"APPEARANCES:
* * *
"Failure to attend this hearing may result in dismissal of the appeal for claimant for public assistance or services, or a decision against you in a licensing case.”

On August 24, 1977, all parties to the action were present for the hearing, including witnesses, the plaintiffs and counsel for the defendant. However, plaintiffs’ attorney did not appear because he was detained in circuit court. The administrative law judge adjourned the meeting because plaintiffs would not proceed without their attorney. On September 9, 1977, a notice of change in the date of hearing was mailed to plaintiffs’ attorney. The rescheduled hearing was set for 10 a.m., on October 14, 1977. This notice states "YOU MUST BE ON TIME FOR THIS HEARING”.

At 10 a.m., on October 14, 1977, representatives of the defendant department, its attorney and witnesses were present for the hearing on this matter. However, neither the plaintiffs nor their attorney appeared at the hearing. The administrative law judge stated on the record that he had just been advised that plaintiffs’ attorney was just in contact with the Bureau of Administrative Hearings and reported that he was unable to attend the hearing until 2 p.m. that afternoon because of another commitment, and that prior to the date of the hearing he had telephoned "somebody in the Bureau of Administrative Hearings and asked them to have the time changed from 10:00 a.m. to 2:00 p.m., and that some unidentified person in the Bureau of Administrative Hearings said that was all right”. The administrative law judge proceeded with the hearing, observing that neither he nor anyone in the bureau office had received either an oral or written request for an adjournment by plaintiffs’ counsel. As authority for this action the administrative law judge cited § 72(1) of the Administrative Procedures Act, MCL 24.272(1); MSA 3.560(172).

During the subsequent hearing numerous witnesses testified about the circumstances surrounding plaintiffs’ current reapplication for a family day care home license. Numerous exhibits were also introduced into evidence on behalf of the defendant department.

On January 24, 1978, the administrative law judge upheld the decision of the defendant denying plaintiffs’ application, ruling in a lengthy opinion that the plaintiffs did not meet the eligibility standards for a family day care home license pursuant to 1975 AACS R 400.1302, and 1973 PA 116, § 5. After summarizing the evidence and making specific findings of fact he concluded:

"The fact that appellant Craig has a history of heroin addiction and continues to use drugs, has not been demonstrating any significant improvement in more than two years, has a severe personality disorder, cannot cope with stress and is immature amply demonstrates that appellant Craig is not responsible, and does not have the character to assure the welfare of day care children in the home.”

A motion for rehearing with the administrative law judge and an appeal to the circuit court were decided adversely to the plaintiffs’ position. They appeal these rulings to this Court as of right.

A number of issues are raised on appeal. However, one merits particular analysis because it may be dispositive of the others. Specifically, plaintiffs contend that it was a violation of their constitutional right to due process of law for the administrative law judge to conduct the hearing on the licensing denial without the presence of the plaintiffs and their attorney. In particular, plaintiffs claim that they should not be denied their right to attend the hearing because their absence from the hearing was due to their good faith reliance on the department’s own rule permitting a party to obtain a continuance by merely telephoning the office of the Administrative Hearing Bureau. Defendant responds by asserting that plaintiffs waived their right to be present at the hearing by their failure to appear and that, in any event, they failed to adequately establish that their absence from the hearing was due to a continuance granted by telephone conversation with the Bureau of Administrative Hearings.

The Michigan Constitution, Napuche v Liquor Control Comm, 336 Mich 398; 58 NW2d 118 (1953), and the Michigan Administrative Procedures Act, MCL 24.271; MSA 3.560(171), require that a person entitled to an administrative hearing be accorded the correlative right of reasonable notice of that hearing. Review of the record clearly indicates, and plaintiffs do not contest, that the Department of Social Services complied with the statutory requirement providing for written notice of the license hearing and that the plaintiffs were provided with the opportunity to attend the hearing. MCL 24.271; MSA 3.560(171). Plaintiffs were given proper notice of the time, place, and nature of both the original and rescheduled hearing. Section 72(1) of the Administrative Procedures Act states:

"If a party fails to appear in a contested case after proper service of notice, the agency, if no adjournment is granted, may proceed with the hearing and make its decision in the absence of the party.” MCL 24.272(1); MSA 3.560(172X1).

In the instant case the record fails to reveal the existence of any properly granted adjournment of the 10 a.m. hearing scheduled for October 14, 1977. As such, it would appear that the administrative law judge did not err in his decision to "proceed with the hearing and make its decision in the absence of the party”. Since plaintiffs were given notice of the hearing sufficiently in advance of the scheduled proceedings, thus giving them a reasonable opportunity to appear and present their case at the hearing, their right to "rudimentary due process” would at first blush appear to have been properly protected. McMullen v Secretary of State, 339 Mich 175; 63 NW2d 599 (1954), Sponick v Detroit Police Dep’t, 49 Mich App 162, 188-189; 211 NW2d 674 (1973). However, based on the peculiar facts of this case, we cannot be satisfied with this initial conclusion. Although the statutory procedure set out in the child care organization act, 1973 PA 116; MCL 722.111 et seq.; MSA 25.358(11) et seq., and the Administrative Procedures Act, 1969 PA 306; MCL 24.201 et seq.; MSA 3.560(101) et seq., comports with all constitutional aspects of due process, it would seem that the plaintiffs have established a prima facie case that their due process right to be present at the administrative hearing may have been violated because of compliance with the defendant’s own rules. As noted on the face of the "notice of hearing” sent by the Department of Social Services, the plaintiffs were instructed that if they had a good reason for not appearing at the administrative hearing they should request a postponement from the department, either by written request to the given address or "telephone (517) 373-0722”. No procedure for verifying requests made or granted over the telephone is provided.

Plaintiffs assert that the reason for their nonattendance at the 10 a.m. hearing on October 14, 1977, was that their attorney had telephoned the Administrative Hearing Bureau pursuant to these instructions and had obtained an adjournment until 2 p.m. that same afternoon. If this assertion is true and an adjournment was indeed granted, then the plaintiffs’ absence from the hearing would be justified on the basis that a proper postponement had been granted. Likewise, if the telephone adjournment had not been granted as claimed by defendants, then the administrative law judge was completely justified in proceeding with the hearing in the absence of the plaintiffs or their attorney. MCL 24.272(1); MSA 3.560(172X1).

Generally, a party requesting a postponement of an administrative agency hearing must do so in writing. Dep’t of Social Services v Arden, 81 Mich App 210; 265 NW2d 91 (1978), GCR 1963, 503, see 1975 AACS R 400.915. However, according to the notice form sent to the plaintiffs’ attorney, he was able to make his request by telephone. On the one hand, plaintiffs’ attorney has submitted an affidavit attesting to the fact that he obtained a telephone adjournment from the Bureau of Administrative Hearings. On the other hand, the record reflects that on the morning of the rescheduled hearing the administrative judge investigated the issue with the bureau staff and determined that no such continuance had been granted. Obviously, the issue of whether such a continuance was granted presents a question of fact. Accordingly, we remand the case to the circuit court for a hearing on the issue of whether the plaintiffs’ attorney was actually granted a continuance over the telephone until 2 p.m., October 14, 1977, consistent with the instructions found on the notice of hearing sent to the plaintiffs and their attorney. MCL 24.306; MSA 3.560(206). If it is determined that such a continuance was granted to the plaintiffs, then it must be concluded that the hearing was held in violation of the plaintiffs’ due process rights as provided by the department’s own regulations, and a new evidentiary hearing is ordered. However, if it is determined that no continuance was granted, then the decision of the administrative law judge dated January 24, 1978, should be affirmed for the reasons discussed hereafter.

In light of the foregoing instruction we proceed to the merits of plaintiffs’ other allegations of error assuming, arguendo, that the administrative hearing is determined on remand to have been properly conducted.

First, plaintiffs claim that the decision of the administrative law judge is not supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; MCL 24.306(1)(d); MSA 3.560(206)(1)(d), Soto v Director of the Michigan Dep’t of Social Services, 73 Mich App 263; 251 NW2d 292 (1977). We disagree. Careful review of the entire administrative record indicates that there was evidence which a reasoning mind could accept as sufficient to support the conclusion that the "services and facilities [of the plaintiffs would not be] conducive to the welfare of the children”. This conclusion is particularly relevant with respect to the factual findings dealing with the "character, suitability, training and qualification of the applicant”, Craig Atkins. MCL 722.115; MSA 25.358(15).

Next, plaintiffs claim that the decision of the administrative agency exceeded its statutory authority. In particular, plaintiffs contend that the defendant lacks the authority to dehy applicants a family day care home licence where one of the applicants who is, assuming arguendo, generally unsuitable for approval, is nevertheless not "directly responsible for the care and welfare of the children”, MCL 722.112(3)(b); MSA 25.358(12)(3)(b).

1973 PA 116 is:

. "An act to provide for the protection of children through the licensing and regulation of child care organizations; to provide for the establishment of standards of care for child care organizations * * *.”

One of the standards designated by § 5(1) of the child care organizations act states that a license can be granted only if the department is satisfied as to the good character and intent of the applicant, and that the services and facilities are conducive to the welfare of the children. MCL 722.115(1); MSA 25.358(15)(1). Since by definition a "family day care home” is a private home in which one to seven minor children are received for care and supervision for periods of less than 24 hours a day, MCL 722.111(f)(iii); MSA 25.358(11)(f)(iii), it follows that the Department of Social Services has the authority to promulgate rüles and to disqualify applicants for problems found to exist or which might exist within the day care home during that 24-hour period. MCL 722.112(1); MSA 25.358(12X1). No doubt this is the reason for promulgation of 1975 AACS R 400.1302(2), which states "[a]ll persons living in the home shall be of responsible character to assure the welfare of children”.

Plaintiffs contend that this provision is impermissibly broad in light of another statutory mandate which states:

"The rules promulgated under this act shall be restricted to:
"The character, suitability, training, and qualifications of applicants and other persons directly responsible for the care and welfare of children served.” MCL 722.112(3)(b); MSA 25.358(12)(3)(b). (Emphasis added.)

Plaintiffs argue that Administrative Rule 1302(2) extends the department’s inquiry to include the character of all persons living in the family day care home when the statute clearly limits the promulgation of administrative rules to consideration of only those persons who are "directly responsible” for the children.

On its face, this contention appears to be valid. However, it must be noted that in the case at bar the administrative law judge’s decision was based upon the specific rule under scrutiny as well as the general statutory provision which denies a license if the department is not satisfied that the "services and facilities are conducive to the welfare of the children”. MCL 722.115(1); MSA 25.358(15X1). Moreover, § 2(3)(c) of the child care organizations act states that rules promulgated under the act shall be restricted to "[t]he general financial ability and competence of applicants to provide necessary care for children * * MCL 722.112(3)(c); MSA 25.358(12)(3)(c). Since plaintiff Craig Atkins was listed as one of the applicants for a license, it follows that his competence to provide the necessary care for children was properly scrutinized by the administrative law judge. Finally, while it is difficult to reconcile the challenged administrative rule with the statutory restriction found in § 2(3)(b) of the act, it would seem to work an absurd result if the department is precluded from scrutinizing other residents of the family day care home simply because they are not "directly responsible” for the care and welfare of the children served. See Department of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976). Rather, the whole thrust of the act seems to be that all relevant and pertinent aspects of the household should be examined in order to provide for the "protection of children”, even if it means challenging the character qualification of a resident who might be present during any time in the "less than 24 hour” period when the cared-for children are also there. Coffman v State Board of Examiners in Optometry, 331 Mich 582, 591; 50 NW2d 322 (1951). Therefore, we conclude that administrative rule 1975 AACS R 400.1302(2) is not in conflict with § 2(3)(b) of the child care organizations act. MCL 722.112(3)(b); MSA 25.358(12)(3)(b).

Finally, plaintiffs argue that the administrative law judge abused his discretion in failing to grant them a provisional license, instead denying outright the regular license. We disagree. Although a provisional license must be issued to a new organization during the first six months of its child care home operation, the Department of Social Services has discretion to decide if such a license is to be issued to an organization which is seeking a renewal of its license and "which is temporarily unable to conform to the rules”. MCL 722.117; MSA 25.358(17). Review of the record and the administrative law judge’s decision based thereon persuades us that his decision was based on fact and logic indicating a well-reasoned exercise of judgment. Wendel v Swanberg, 384 Mich 468, 476; 185 NW2d 348 (1971). Absent a demonstrated abuse of discretion we refrain from interfering with the decision reached below.

The matter is remanded to the circuit court with instructions to conduct a hearing on the factual issue of whether counsel for plaintiffs had telephoned the Administrative Hearing Bureau and obtained an adjournment of the 10 a.m. hearing on October 14, 1977. Following this hearing and a factual determination by the circuit court judge, the court is ordered to proceed in accordance with the instructions stated herein.

No costs, a public question being involved.

This Court does not retain jurisdiction.

       We express no opinion as to the propriety of granting or refusing a motion to postpone an administrative hearing on the grounds asserted by plaintiffs’ counsel in his affidavit, i.e., prior commitment at a court in another location. However, see Bauman v Grand Trunk Western R Co, 363 Mich 604; 110 NW2d 628 (1961), McLay v McLay, 354 Mich 19; 91 NW2d 824 (1958), Anno: Right to continuance because counsel is in attendance at another court, 112 ALR 593.

       The administrative record reflects the circumstances surrounding the administrative law judge’s decision to proceed with the hearing in the absence of plaintiffs or their attorney, David Goldstein:
      "I’ve just been advised by the Deputy Director of the Bureau of Administrative Hearings, Judge Griffin, that David Goldstein contacted him just a few minutes ago, said that he thought that this matter was scheduled for 2:00 this afternoon and that he would not be here at this time; however, he would be prepared to proceed in this matter at 2:00 this afternoon. The reasons he gave to Judge Griffin were that he had called somebody in the Bureau of Administrative Hearings and asked them to have the time changed from 10:00 AM to 2:00 PM and that some unidentified person in the Bureau of Administrative Hearings said that was all right; however those persons authorized by the Bureau to adjourn such matters have no knowledge of such telephone call and there’s no note in the record of a telephone call. I personally did not receive a telephone call from somebody in Mr. Goldstein’s office and I asked and was advised that the Director of the Bureau of Administrative Hearings and that Judge Griffin did not receive any information along that line.”