author: C. W. Simon, J. Bronson, J.

text:
    CHESTER v HARPER WOODS SCHOOL DISTRICT
    Docket No. 77-2499.
    Submitted June 6, 1978, at Detroit.
    Decided November 27, 1978.
    Leave to appeal applied for.
    Plaintiffs Joseph Chester, Thomas Stevens and Eugene Rieckhoff are tenured teachers in the employ of defendant Harper Woods School District who were laid off in 1972 as a result of a necessary reduction in personnel. Mr. Chester had taught elementary physical education for 21 years and was, in addition, certified to teach all 7th and 8th grade subjects as well as history, English, French and biology in grades 9 through 12. Another elementary phys-ed teacher, Mr. Goodwin, was affected by the 1972 layoff in that he was transferred to an elementary classroom. When an opening arose in elementary physical education, Mr. Goodwin, pursuant to the collective bargaining agreement, was reassigned to fill the vacancy. When two openings occurred in English, Mr. Chester was considered but not approved because one involved a developmental language lab and the other a course in drama and it was felt that Mr. Chester’s 21-year absence from English made him unqualified to handle either program. Mr. Stevens, in 14 years with defendant school district, had taught general science in grades 8 through 12, 9th grade civics, 11th grade world history, 8th grade home mechanics (shop) and 9th grade auto shop, and coached varsity swimming and football. He was also certified to teach all 7th and 8th grade subjects, science and history for grades 9 through 12 and physical education for all grades. Two positions opened up, one teaching 7th and 8th grade science and 11th and 12th grade chemistry and the other teaching 7th grade math and general science, but Mr. Stevens was rejected as unqualified for either math or chemistry. Mr. Rieckhoff, before coming to defendant school district, was, for 13 years, in charge of the junior high instrumental music program in another school district. In defendant school district he taught elementary, junior and senior high band, junior high music appreciation and girls’ vocal music, which was discontinued for lack of interest. He was also certified to teach all 7th and 8th grade subjects, music in all grades and social studies in grades 9 through 12. When an elementary vocal music opening appeared Mr. Rieckhoff was rejected because his vocal music teaching certification was not in his file and because of his failure in teaching the course before.

      References for Points in Headnotes

       68 Am Jur 2d, Schools §§ 129, 132.

       68 Am Jur 2d, Schools §§ 149-160, 202-214.

       68 Am Jur 2d, Schools §§ 138-143.

       68 Am Jur 2d, Schools §§ 50-55, 138-143.

       68 Am Jur 2d, Schools §§ 50-55,138-143, 149-160.

      These teachers appealed the school board’s decisions to fill the vacancies with new teachers to the tenure commission alleging that they were certified and qualified for the vacancies and entitled to them or that the school board deliberately reshuffled class assignments to create vacancies for which they were not qualified. The tenure commission found that all three were denied the first vacancies for which they were certified and qualified and that the school board did attempt to block the reemployment of Mr. Chester and Mr. Stevens by manipulating class schedules. The Wayne Circuit Court, Roland L. Ozark, J., affirmed. Defendant appeals. Held:

    1. The word "qualified”, in the statute requiring that a tenured teacher laid off as a result of a necessary reduction in personnel be appointed to the first vacancy for which he is certified and qualified, contemplates some level of competency above and beyond mere certification; the local school board is the proper body to establish the criteria for that level of competency which is binding on review by the tenure commission, absent a showing that the criteria was arbitrary, unreasonable or promulgated in bad faith.
    2. The tenure commission must determine whether the school board’s criteria for qualification are arbitrary, unreasonable or promulgated in bad faith, if not, whether, applying the school board’s standards, the complaining teachers are qualified for any of the present vacancies, and, if not, whether they would have been qualified for vacancies which would have occurred had there been no rescheduling before any finding of manipulation in rescheduling can be made.
    Reversed and remanded to the tenure commission with instructions.
    Bronson, J., concurred in part and dissented in part. He agreed that the tenure commission may not substitute its own judgment as to a teacher’s qualifications for that of a school board in the absence of a determination that the board’s decision was arbitrary, capricious or done in bad faith as a subterfuge in order to circumvent the protections of the teacher tenure act. But he would hold that the finding of manipulation of class schedules amounted to a finding by the tenure commission of bad faith on the part of the school board so as to deprive two of the teachers of vacancies for which the board had previously determined they were qualified and the finding is supported by competent, material and substantial evidence on the whole record. He would hold that a collective bargaining agreement cannot waive rights conferred teachers under the tenure act, would affirm the finding of manipulation by the board with regard to Chester and Stevens and would remand to the commission for a determination of whether the board acted arbitrarily or in bad faith in determining that Rieckhoff was not qualified for the open position.
    Opinion of the Court
    1. Schools and School Districts — Statutes—Tenured Teachers— Statutory Construction — Certified Teacher — Qualified Teacher.
    The term "qualified” contemplates some level of competence above and beyond mere certification in a statute governing the filling of vacancies by a tenured teacher and the local school board is the proper body to establish the criteria for that level of competence (MCL 38.105; MSA 15.2005).
    2. Schools and School Boards — Statutes—Tenured Teachers— Right of Reappointment — Reviewability—Scope of Review.
    A claim by a tenured teacher who had been laid off due to a necessary reduction in personnel that he had been denied his right of first recall as provided by statute and that a school board decision to fill available vacancies with probationary teachers violated the statute is reviewable by the tenure commission; while the review is de novo, the tenure commission is free only to reexamine the facts as found by the school board (MCL 38.105, 38.121; MSA 15.2005, 2021).
    3. Schools and School Districts — Teachers—Vacancies in School —School Boards — Legislative Function.
    The establishment of parameters of qualification to fill vacancies in a school is a legislative rather than quasi-judicial function and is the proper function of the local school board.
    4. Schools and School Districts — Duties of School Boards — Statutes — Criteria of Qualification of Teachers.
    The local school board, not the tenure commission, is charged by statute with the duty of hiring duly qualified teachers; therefore, it is for the school board to determine the criteria of teacher qualification (MCL 380.1231; MSA 15.41231).
    5. Schools and School Districts — Tenure Commission — Decisions of School Boards — Qualification of Tenured Teacher-Scope of Review.
    The tenure commission, in reviewing a determination of a school board that a tenured teacher is not qualified for an available position, is constrained to apply the criteria for qualification set out by the school board unless that criteria is either arbitrary, unreasonable or promulgated in bad faith; a determination by a school board which is not arbitrary, unreasonable or promulgated in bad faith is binding upon the tenure commission.
    6. Schools and School Districts — School Boards — Tenured Teachers — Due Process — Qualification of Teachers.
    Due process is not offended by a school board’s examination of "demonstrated competency” as a basis for qualification for filling vacancies without providing a prior hearing for tenured teachers where the status of complaining teachers is unaffected and prompt, adequate administrative review is provided.
    Concurrence in Part, Dissent in Part by Bronson, J.
    7. Schools and School Districts — School Boards — Tenure Commission — Scope of Review.

      A school board may not arbitrarily or in bad faith manipulate a schedule so as to close positions for which laid off, tenured teachers are qualiñed; the determination of whether the board acted in bad faith or as a subterfuge is a question for the tenure commission.

    8. Schools and School Districts — Tenure Commission — Findings of Fact — Review—Scope of Review.

      The Court of Appeals, in reviewing the factual findings of the tenure commission, may not make an independent determination of the facts but must see that the commission’s conclusions are supported by competent, material and substantial evidence on the whole record.

      9. Schools and School Districts — Statutes—Contracts—Teacher’s Conflicting Rights.

      Rights under a collective bargaining agreement which would operate to deprive a teacher of his rights under the teacher tenure act must yield to the provisions of the act (MCL 38.172; MSA 15.2054).

      Fieger, Golden & Cousens, for plaintiffs.

      LaBarge, Zatkoff & Dinning, P.C., for defendant.
    Before: Bashara, P.J., and Bronson and C. W. Simon, JJ.

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

   C. W. Simon, J.

Plaintiffs are three schoolteachers with tenure in the employ of defendant school district. In 1972 they were among those laid off when a drop in district revenue caused by an adverse property tax ruling and a millage defeat precipitated a necessary reduction in personnel. When financial conditions improved, however, new positions were created, but the school board appointed new, probationary teachers to fill the vacancies.

Mr. Chester had taught elementary physical education in the Harper Woods School District for 21 years. He was certified to teach all subjects at the seventh and eighth grade levels, and history, English, French and biology for grades 9 through 12. While he and another elementary physical education teacher, Mr. Goodwin, were both affected by the layoff, the latter being assigned to an elementary classroom, Mr. Goodwin, because of a request made pursuant to a collective bargaining agreement between the school district and the teachers association, was reassigned to fill the only vacancy which later arose in elementary physical education. When two openings occurred in English, Mr. Chester was considered for both but not approved because one involved a developmental language lab and the other a course in drama. It was felt by the school board that his 21-year absence from teaching English at the secondary level rendered him unqualified to handle either of these programs which were to be implemented.

Mr. Stevens had been associated with the Harper Woods School District for 14 years, variously teaching general science for grades 8 through 12, 9th grade civics, 11th grade world history, 8th grade home mechanics and 9th grade auto shop, and coaching varsity swimming and football. He was certified to teach all subjects at the 7th and 8th grade levels, science and history for grades 9 through 12 and physical education for grades kindergarten through 12. When two positions opened, one teaching 7th and 8th grade science and 11th and 12th grade chemistry and the other teaching 7th grade mathematics and general science, he was considered for both but rejected as unqualified in both chemistry and mathematics. Mr. Stevens’ endorsement was restricted to general science and he had had no undergraduate mathematics preparation.

Mr. Rieckhoff, before coming to Harper Woods, had been in charge of the junior high instrumental music program in Benton Harbor for 13 years. While employed by the Harper Woods School District he taught elementary as well as junior and senior high band, junior high music appreciation and one semester of girls’ vocal music. The vocal music program was scheduled for another semester but discontinued because of student disinterest in the instructor’s program. He was certified to teach all subjects in grades 7 and 8, music and social studies in grades 9 through 12 and music in kindergarten through 6th grade. When a vacancy teaching vocal music at the elementary level arose, he was considered but determined unqualified. Apparently, Mr. RieckhoiFs certification to teach vocal music was not within his file at the time of the board’s decision and the nonsuccess of his prior attempt at teaching the course caused them to conclude that he was not competent in the area.

After new teachers were hired to fill each of the vacancies, plaintiffs appealed the board’s decisions to the tenure commission, charging that the action of the school board violated the teachers’ tenure act. MCL 38.71 et seq.; MSA 15.1971 et seq. They argued alternatively that they were either certified and qualified for and thereby, under MCL 38.105; MSA 15.2005, entitled to the positions created, or, if not, that the school board deliberately reshuffled class assignments so as to create vacancies for which they were not qualified.

The tenure commission, with two dissenters, reversed the decisions of the school board. In the controlling opinion was stated:

"These Commissioners are aware of the opportunity school boards have, if they are so inclined, to circumvent the provisions of the Tenure Act by juggling assignments and manipulating course offerings in a manner which would cause the layoff or block the recall of a tenured teacher. The result of such action is the effective dismissal of a tenured teacher without observing the due process provisions of the Act. Upon appeal, we will scrutinize any such complaint to determine if a board’s actions were made in good faith, and will discourage the employment of any new teacher when tenured teachers are on layoff.
"It is our finding, in the present cause, that Appellee did deny appellants Chester, Stevens and Rieckhoff the 'first vacancy’ for which they were certified and qualified to teach, and did attempt to block the re-employment of Chester (and) Stevens * * * by manipulating class schedules.”

And, this decision was upheld by the Wayne County Circuit Court. The dissenters on the tenure commission had held that plaintiffs were either not certified or not qualified to teach in the school year program as it was established. They opined:

"(T)he manner in which the recall of teachers was effected was a studied, deliberate, systematic process by which all facets of the teachers [sic] background and experience were considered prior to a decision on recall being made.
"These Commissioners rule that the Harper Woods School District has properly executed its duties and is in compliance with [MCL 38.105; MSA 15.2005] by exerting its discretion as to qualification in the recall of teachers on lay off due to necessary reduction of personnel.” (Emphasis in original.)

These opinions relate a primary conflict which is the central issue raised here on appeal, whether the tenure commission has jurisdiction to review de novo decisions of a school board with regard to the reappointment of tenured teachers to vacancies which arise after a necessary reduction in personnel has caused their layoff.

Plaintiffs’ claim to the teaching vacancies is based upon MCL 38.105; MSA 15.2005; which provides:

"Any teacher on permanent tenure whose services are terminated because of a necessary reduction in personnel shall be appointed to the first vacancy in the school district for which he is certified and qualified.”

Even in this context, however, "certified” and "qualified” are not synonymous terms. The term "qualified” contemplates some level of competence above and beyond mere certification, the criteria of which must be established by the school board. Holton Public Schools v Farmer, 77 Mich App 765, 772; 259 NW2d 219 (1977) (M.B. Breighner, J., concurring). Accord, MCL 380.1231(1); MSA 15.41231(1) (formerly MCL 340.569; MSA 15.3569); Anderson v Harper Woods Public School Dist, 74 Mich App 227; 253 NW2d 718 (1977).

Where a school board is acting in its quasi-judicial capacity for removal of teachers for cause, its powers are greatly circumscribed by the teachers’ tenure act. "Discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause,” MCL 38.101; MSA 15.2001, and only after providing a hearing which accords with MCL 38.102; MSA 15.2002 and MCL 38.104; MSA 15.2004. Further, MCL 38.137; MSA 15.2037 vests the tenure commission with such powers as are necessary to carry out and enforce the act’s provisions, and MCL 38.139; MSA 15.2039 charges it with the duty of standing "as a board of review for all cases appealed from the decision of a controlling board”. Review is de novo. Long v Board of Education, Dist No 1, Fractional, Royal Oak Twp and City of Oak Park, 350 Mich 324; 86 NW2d 275 (1957); Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, 345 Mich 731; 77 NW2d 131 (1956). And, any final decision of a controlling board under the act is reviewable. MCL 38.121; MSA 15.2021. Bennett v City of Royal Oak School Dist, 10 Mich App 265; 159 NW2d 245 (1968), lv den, 381 Mich 755 (1968).

Thus, where the question is whether a tenured teacher may be dismissed for incompetence or improper conduct, he is entitled to a hearing before the school board and de novo review by the commission. See Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, supra. This serves the purpose of the teachers’ tenure act which is "to eliminate capricious employment practices by school boards and protect teachers from arbitrary and unreasonable dismissals”. Pounder v Harper Woods Board of Education, 72 Mich App 717, 723; 250 NW2d 504 (1976), modified, 402 Mich 91; 260 NW2d 287 (1977), reh den, 402 Mich 960 (1978).

Where, however, the question is whether, because of economic necessity, a particular teacher should be laid off in the first instance, he is not entitled to either notice of the charges against him or a hearing before the controlling school board. Such would constitute a useless gesture since neither his conduct nor performance is being called into question. Steeby v School Dist of the City of Highland Park, 56 Mich App 395; 224 NW2d 97 (1974). Here, review by the tenure commission would be limited to "whether the [controlling] board of education, under the guise of a 'necessary reduction in personnel’, used circuitious methods in removing the [teacher] from its school system without the protections afforded by the teachers’ tenure act”. Freiberg v Board of Education of Big Bay De Noc School Dist, 61 Mich App 404, 416; 232 NW2d 718 (1975). Goodwin v Board of Education of the School Dist of the City of Kalamazoo, 82 Mich App 559; 267 NW2d 142 (1978). This is consistent with our reading of MCL 38.121; MSA 15.2021 which provides that "[a] teacher who has achieved tenure status may appeal any decision of a controlling board under this act”. Since the act is silent with regard to what constitutes a "necessary reduction in personnel” such issue is not appealable unless cast in terms which allege that the "necessary reduction in personnel” was not made in good faith but amounted to a subterfuge to avoid the act’s protections.

The case at bar, however, involves not the layoff but the reappointment of teachers after a "necessary reduction in personnel”. Plaintiffs make no claim that the reduction was a subterfuge to avoid the teachers’ tenure act. Rather, they contend that they have been denied their right of first recall under § 5 thereof, MCL 38.105; MSA 15.2005. They claim that the decision of the school board to fill the available vacancies with probationary teachers violated the act.

In this posture it is clear that plaintiffs’ claim with regard to the board’s decision is reviewable by the tenure commission. It falls squarely within the language of MCL 38.121; MSA 15.2021, "decision of a controlling board under this act”. Accord, Freiberg v Board of Education of Big Bay De Noc School Dist, supra. However, while as in Long and Rehberg, review would be de novo, the tenure commission is only free to reexamine the facts as found by the school board. It may no more redefine the criteria of "qualification” set by the board than outline new standards of "certification” for the state. To set the parameters of qualification to fill vacancies is a function of the school board which may not be usurped by the tenure commission. It is a legislative rather than a quasi-judicial function.

"School districts, though State agencies, are governed locally and their controlling boards are chosen by the electorate.” Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, Wayne County, 330 Mich 541, 547; 48 NW2d 142 (1951). It is the school board which determines the criteria of teacher qualification, Holton Public Schools v Farmer, supra, because it is the local board, not the State Tenure Commission, who is charged with the duty of hiring duly qualified teachers both initially and after layoff, MCL 380.1231; MSA 15.41231 (formerly MCL 340.569; MSA 15.3569); Anderson v Harper Woods Public School Dist, supra. In our opinion, construction of the tenure law in harmony with the expressed legislative policy to protect teachers from arbitrary and unreasonable practices does not permit a construction so liberal as to entirely destroy the right of a local board to independently determine matters of policy in the administration of local school affairs. Thus, in reviewing the determination of a school board that a tenured teacher is not qualified for an available position, the tenure commission is constrained to apply the criteria of qualifications set out by the school board unless that criteria itself is either arbitrary, unreasonable or promulgated in bad faith. To further expand the jurisdiction of the commission would be to render it the legislator of all teacher qualification at the expense of local control. If the Legislature intended to deprive local governing bodies of legislative control over teachers’ qualification, that intent should have been definitely stated in the tenure act. Cf., Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, Wayne County, supra.

Here, with regard to the criteria adopted by the school board, the dissenting members of the tenure commission noted that:

"Dr. Babich testified that a personnel procedure was formulated to assist him and other members of the administrative staff in making such decisions. He further testified that the procedure was uniformly and consistently followed in determining the qualifications of all teachers for a vacancy. In determining which teacher was certified and qualified, consideration was given to such items as the teacher’s certification, the teacher’s degree, whether or not the teacher had pursued successfully curricula in specific subject areas for the potential teaching assignment, the teacher’s endorsement from an appropriate state agency, evidence of further reinforcement of original endorsement, and demonstrated competency within his or her assigned level within the school district.”

The majority of the commission completely disregarded this basis of qualification in favor of its own. Without ever considering whether the criteria adopted by the board was arbitrary, unreasonable or promulgated in bad faith, the majority erroneously chose to view qualification purely from a perspective of teaching experience. Indeed, its opinion is replete with reference to "new to-rees”. For example, with regard to Mr. Chester they state:

"The two English vacancies in dispute were filled by two newly hired, newly graduated teachers. Surely Chester was at least as qualified as a new hiree who had no teaching experience.”

This we feel was improper.

While we do not hold its criterion unsuitable, the tenure commission failed to accord the board’s determination of qualification the deference it was due. Although review of the facts is de novo, the commission is not free to substitute its idea of qualification for that of the board. Where the local board’s definition is neither arbitrary, unreasonable nor promulgated in bad faith, it is binding upon the tenure commission. Only the facts may be found anew.

Moreover, MCL 380.1282; MSA 15.41282 (formerly MCL 340.583; MSA 15.3583) provides:

"The board of a school district shall establish and carry on the grades, schools, and departments it deems necessary or desirable for the maintenance and improvement of the schools, determine the courses of study to be pursued, and cause the pupils attending school in the district to be taught in the schools or departments the board deems expedient.”

Not unlike the determination of qualification, this grant of authority to the local board carries with it a commitment that the power will be exercised by those duly elected by the voters of the school district. Absent a finding that a decision of the board with regard to class scheduling was arbitrary, unreasonable or made in bad faith, it may not be overturned by the tenure commission.

In the case at bar, the opinion of the tenure commission infers that class schedules were arbitrarily manipulated to block plaintiffs’ re-employment, but such finding is predicated upon an erroneous determination of qualification. Before any finding of manipulation can be made, it must first be determined whether the school board’s criteria for qualification are either arbitrary, unreasonable or promulgated in bad faith; if not, whether, applying the school board’s standards, the complaining teachers are qualified for any of the present vacancies; and, if not, whether they would have been qualified for vacancies which would have occurred had there been no rescheduling. Since such determinations were not made, any finding of manipulation was premature. Therefore, the proper disposition of this case is to reverse and remand to the tenure commission for a determination of whether, in setting their standards for reappointment, the school board acted arbitrarily, unreasonably or in bad faith. If not, the criteria adopted by the school board should control resolution of the subsequent issues.

Finally, it is of no moment that the school board examined "demonstrated competency” as a basis for qualification without affording a prior hearing. Where, as here, the status of the complaining teachers is unaffected and prompt, adequate administrative review is provided, MCL 38.121; MSA 15.2021, due process is not offended. Fusari v Steinberg, 419 US 379; 95 S Ct 533; 42 L Ed 2d 521 (1975), reh den, 420 US 955; 95 S Ct 1340; 43 L Ed 2d 433 (1975).

Reversed and remanded to the tenure commission for reconsideration consistent with this opinion.

Bashara, P.J., concurred.

Bronson, J.

(concurring in part, dissenting in part). The tenure commission made two independent findings of fact in this case which must be examined separately. First, it found, contrary to defendant board’s finding, that plaintiffs were qualified for certain teaching positions which became open at the beginning of the 1973-1974 school year. Secondly, it found that defendant board had manipulated, class and teachers’ schedules so as to exclude plaintiffs Stevens and Chester from positions for which they would have been qualified but for the rescheduling.

In regard to the first finding, I agree with the majority and would reverse the decision of the tenure commission. By statute, the school board is the body authorized to set the qualifications for its teachers. MCL 380.1231; MSA 15.41231, Holton Public Schools v Farmer, 77 Mich App 765, 772; 259 NW2d 219 (1977) (M. B. Breighner, J., concurring). The teacher tenure act does not empower the tenure commission to substitute its judgment as to teacher qualifications for that of the school board. The tenure commission may only set aside the school board’s determination on teacher qualification if it finds that the decision was arbitrary or capricious or done in bad faith as a subterfuge in order to circumvent the protections of the teacher tenure act. Cf. Freiberg v Board of Education of Big Bay De Noc School Dist, 61 Mich App 404; 232 NW2d 718 (1975). The tenure commission’s substitution of its judgment for that of the school board concerning plaintiffs’ qualifications for the open positions was improper. This portion of the case must be remanded to the tenure commission for a decision on whether the school board acted arbitrarily or in bad faith in determining that plaintiffs were not qualified for the open positions.

The decision as to the teachers’ qualifications for the open positions, however, does not end the tenure commission’s inquiry. Assuming arguendo that the school board had properly found that plaintiffs were not qualified for the open positions, the tenure commission is still empowered to determine whether the school board manipulated class schedules in such a way as to deprive plaintiffs of positions for which the board had determined they were qualified. A school board cannot do through indirection what it is prohibited from doing directly. Just as the board may not arbitrarily or in bad faith determine that tenured teachers are unqualified for the open positions, it also may not arbitrarily or in bad faith manipulate the schedule so as to close positions for which the laid-off teachers are qualified. The determination of whether the board acted in bad faith or as a subterfuge is a question for the tenure commission. Cf. Freiberg, supra, Goodwin v Board of Education of the School Dist of the City of Kalamazoo, 82 Mich App 559; 267 NW2d 142 (1978).

In the present case, the tenure commission made such a determination of bad faith. It held that the school board had itself determined that plaintiff Stevens was qualified to teach certain subjects, but had purposefully rearranged the schedule in such a manner as to combine the subjects for which he was qualified with subjects for which he was not qualified so as to deprive plaintiff of reentry into the school system.

In reviewing the factual findings of the tenure commission, this Court’s function is not to make an independent determination of the facts, but merely to see whether the commission’s conclusions are "supported by competent, material and substantial evidence on the whole record”. (Emphasis omitted.) Beebee v Haslett Public Schools, 66 Mich App 718, 720; 239 NW2d 724 (1976), remanded 401 Mich 954 (1977), quoting Const 1963, art 6, § 28. A review of the record convinces me that the commission’s finding of bad faith on the part of the board towards plaintiff Stevens was supported by the record.

Mr. Stevens had an undergraduate major in general science. He was certified to teach general science in grades 1 through 12 and had taught general science in defendant school district for the previous 14 years primarily in grades 8 through 12. Defendant school board conceded that he was qualified to teach general science. He was not rehired for the 1973-1974 school year because the open position called for someone who could teach four science courses and one chemistry course and plaintiff Stevens was not deemed qualified to teach chemistry. During the 1972-1973 school year there were two teachers, one who taught five courses in general science, and one who taught four chemistry courses and one science course. Before the start of the 1973-1974 year the school district decided to transfer one chemistry course from the chemistry teacher and give it to the science teacher because it was allegedly dissatisfied with the chemistry teacher. It was this rescheduling that the tenure commission found as a subterfuge to deprive plaintiff Stevens of reentry into the school system. I cannot hold this finding erroneous.

The chemistry teacher had taught for defendant school district for many years, but it was only when plaintiff Stevens sought to be rehired that defendant school district decided to take away one of the teacher’s chemistry classes. Secondly, if defendant school district was truly dissatisfied with the way the teacher taught chemistry and made the transfer to improve the quality of education, why did it transfer only one chemistry class? The transfer of one class would be sufficient to deprive plaintiff Stevens of reentry, but it would not be sufficient to upgrade the chemistry program. The allegedly deficient chemistry teacher would still be in charge of the chemistry program and the majority of students would still have to take chemistry from him. Only a tiny minority of students would be given the opportunity to have a supposedly superior teacher. The school district’s reasoning is arbitrary at best, and at worst seems to be a concerted effort to deprive plaintiff of a chance to reenter the system.

No administrator is going to admit to arbitrary or bad faith decisions. Such decisions can only be determined by viewing the circumstances of each individual case. The tenure commission is the body with the expertise in the field of teacher disputes. See Lipka v Brown City Community Schools, 59 Mich App 175; 229 NW2d 362 (1975), modified 399 Mich 704; 252 NW2d 770 (1977), reh gtd 400 Mich 984 (1977). This expertise gives the commission familiarity with the ways in which schools operate and places it in an advantageous position when determining if schedules can be manipulated and how this manipulation can be accomplished. The commission’s judgment in this area is entitled to great respect and should not lightly be set aside by this Court. Since the facts in this case show, at the very least, that the school board’s action was questionable, the commission’s expertise in this complex area should be honored and its determination of arbitrary or bad faith manipulation should be upheld.

The final issue in this case concerns the school board’s failure to rehire plaintiff Chester. Mr. Chester was laid off prior to the 1972-1973 school year when due to economic necessities the district had to totally eliminate its physical education program. Prior to his lay off plaintiff Chester had taught physical education in defendant school district for 21 years. The school board concedes that he was qualified to teach physical education. Due to the improved financial picture of the school district for the school year 1973-1974 the district reinstated its physical education program although on a more limited scale.

The reinstallation of the program created one vacancy in the physical education department. The school board gave that position to Mr. Goodwin, a teacher with six years’ experience at the school who formerly taught physical education with Mr. Chester but who was transferred to another department when the original cut back was made. The school board gave Mr. Goodwin the vacancy claiming that it was contractually bound by the terms of the collective bargaining agreement to assign any position in a reopened department to a teacher who had been transferred out of the department but requested to be transferred back. Mr. Goodwin made such a request.

The school board claims that there was no vacancy because it was contractually obligated to reinstate Mr. Goodwin. This is incorrect. A vacancy was created when the physical education program was reinstated. The question becomes what is the interrelation between the teacher tenure act and the collective bargaining agreement. The teacher tenure act specifically states that a tenured teacher laid off due to necessary reduction in personnel must be appointed to the first vacancy for which he is certified and qualified. MCL 38.105; MSA 15.2005. The act also states that the rights conferred by the act cannot be waived by contract. MCL 38.172; MSA 15.2054. This provision would indicate that the teacher tenure act takes precedence over any teacher contract or collective bargaining agreement. When the rights under the collective bargaining agreement would operate in such a manner as to deprive a teacher of his rights under the tenure act, the collective bargaining rights must yield. Since the reinstatement of the physical education program created a vacancy for which plaintiff Chester was qualified, he was entitled to the position under the provisions of the teacher tenure act. The collective bargaining contract cannot be used as a means of depriving plaintiff of his rights under the statute.

Conclusion

1 would affirm the tenure commission’s second finding of manipulation as to plaintiffs Stevens and Chester and order them reinstated. The tenure commission overstepped its authority in independently determining teacher qualifications for the open positions and this portion of their decision is reversed. Since plaintiffs Stevens and Chester would be reinstated under the second finding, the commission need only decide on remand whether the school board acted arbitrarily or in bad faith in determining that plaintiff Rieckhoff was not qualified for the open position.

       The case of Freiberg v Board of Education of Big Bay de Noc School District, 61 Mich App 404; 232 NW2d 718 (1975), is instructive on this point. The teacher in that case alleged that there was no economic necessity which required termination of his employment, but instead class schedules were juggled to eliminate him. This Court found that the tenure commission had jurisdiction to hear this complaint. This Court based its holding on one of the deleterious practices which the teacher tenure act sought to prevent, namely, the discharge of teachers "in order to effect economies either by diminishing the number of teachers and increasing the amount of work assigned to those retained, or by creating vacancies to be filled by lower salaried, inexperienced employees.” 37 Mich L Rev 430, 431 (1939), quoted in Freiberg, supra at 413.
      The present case is merely the reverse of Freiberg. Instead of juggling the schedule to terminate a teacher, the charge here is that the schedule was juggled to keep the teacher from returning. In either case, the tenure commission is empowered to decide the question of manipulation.

       This does not mean that a currently employed teacher could never be given the right of first assignment. It only means that this right cannot be granted if it would deny a laid-off teacher of the only position for which he is qualified. For example, the currently employed teacher could be given the vacancy for which the laid-off teacher was qualified if there is another vacancy for which the teacher was also qualified. The first assignment right would only be denied in those cases when, as here, the assignment would close the only position for which the laid-off teacher is qualified.


source: Caselaw Access Project

author: Bashara, P.J.

license: Public Domain

text:
    CROW v FORD MOTOR COMPANY
    Docket No. 77-2532.
    Submitted January 5, 1978, at Detroit.
    Decided November 28, 1978.
    Remanded in lieu of leave to appeal, 406 Mich 912.
    Bradley Crow, injured while working for the Ford Motor Company, filed a third-party action against Ford Motor Company and Hinterman Ford Company in Wayne Circuit Court. Plaintiff prevailed in this action and was awarded a gross recovery of $727,640.46. Meanwhile, intervenor Reliance Insurance Company had paid plaintiff $21,689.42 in injury related benefits. George T. Martin, J., issued an order reimbursing the intervening insurance company. Reliance Insurance Company appeals and plaintiff cross-appeals from that order. The dispute is primarily over the proper formula to use in apportioning litigation expenses between the plaintiff and the intervenor and whether in determining the apportionment to include a credit to the insurer for benefits payable to plaintiff in the future. Held:

    1. The case of Schalk v Michigan Sewer Construction Co, 62 Mich App 658; 233 NW2d 825 (3,975), pending in the Supreme Court, will ultimately control the resolution of this case.
    2. The fixed date for determining the interests of the parties, plaintiff and intervenor, is the date of plaintiff’s third-party recovery.
    3. The proper apportionment formula where an insurer has paid or will pay benefits to an injured employee who has recovered in a third-party tort action is total recovery less costs and less reimbursement for past or future compensation as of the date of the third-party recovery.
    4. The trial court erred in ordering immediáte payment of the insurance company’s share of expenses to plaintiff; the payment should be deducted from the future credit remaining to the insurance carrier.

      References for Points in Headnotes

       81 Am Jur 2d, Workmen’s Compensation § 71.
    Statute of limitations applicable to action, by way of subrogation or the like, by employer or insurance carrier against third person for injury to employer. 41 ALR2d 1044.

       82 Am Jur 2d, Workmen’s Compensation § 432.

      Remanded for further proceedings.
    1. Workmen’s Compensation — Insurers—Third-Party Torts — Apportioning Costs — Statutes.
    Apportioning the costs of a third-party tort recovery between a worker’s compensation insurer and the injured employee is governed by statute (MCL 418.827; MSA 17.237[827]).
    2. Workmen’s Compensation — Torts—Third-Party Action — Employee’s Interest — Insurer’s Interest — Apportionment.
    The proper apportionment formula where an insurer has paid or will pay benefits to an injured employee who has recovered in a third-party tort action is as follows: the total costs of recovery are subtracted from the gross recovery; the amount of reimbursement for benefits paid by the insurer plus the amount of advance credit given to the insurer for benefits payable in the future, as of the date of the tort recovery, is divided by the tort recovery; this expresses the insurer’s proportionate share of the costs of the tort recovery and the balance of those costs is applicable to the employee’s interest in the tort recovery.

      Conklin, Benham, McLeod, Ducey & Ottaway, P.C. (by Martin L. Critchell), for Reliance Insurance Company.

      Goodman, Eden, Millender & Bedrosian (by Richard A. Soble and Paul A. Rosen), for Bradley Crow.
    Before: Bashara, P.J., and J. H. Gillis and N. J. Kaufman, JJ.
   Bashara, P.J.

The plaintiff sustained a crushed pelvis and other permanent and serious injuries while working for defendant Ford Motor Company. He filed a third-party action against Ford Motor and Hinterman Ford Company jointly and severally.

Plaintiff prevailed in the third-party action and was awarded a gross recovery of $727,640.46. Meanwhile, intervenor Reliance Insurance Company had paid plaintiff $21,689.42 in worker’s compensation benefits and medical and educational benefits for the injury, which the circuit court found to be permanently and totally disabling.

The trial court issued an order reimbursing the intervening insurance company. Both parties appeal the content of the order. The dispute is primarily over the proper formula to use in apportioning litigation expenses between the plaintiff and the intervenor.

Apportioning the costs of a third-party tort recovery between the worker’s compensation insurer and the injured employee is governed by statute. See MCL 418.827; MSA 17.237(827). Judicial construction, however, has left an unsettled foundation upon which to base a determination of the benefits to be included within the "interests” of the insurer as that term is used in the legislation.

Whether to include within that term the credit received by the insurer for benefits payable to the employee in the future is the question presented in this case. That issue was considered by the Supreme Court in Kroll v Hyster Co, 398 Mich 281; 247 NW2d 561 (1976).

Since that review did not yield a majority opinion, the Supreme Court has undertaken a reconsideration of the issue in Schalk v Michigan Sewer & Construction Co, 62 Mich App 658; 233 NW2d 825 (1975), lv granted, 398 Mich 810 (1976). That result will ultimately control the resolution of this case.

The question presented in Schalk has apparently puzzled the Supreme Court, in view of the length of time between oral argument and the present. It is still uncertain when a definitive precedent will be formulated. The parties and this panel had hoped to rely on the Schalk decision for determination of this case. However, to continue our vigil would only inordinately delay the settlement of the rights of the parties and further clog this Court’s already burgeoning docket.

Of the extant opinions considering the question, Justice Williams’ view in Kroll v Hyster, supra, appears to implement the statute in accordance with the apparent legislative intent. Recognizing that settling the rights of the insurer should not depend upon the vagaries of prospective, fortuitous occurrences, the Legislature fixed the date of determining the interests of the parties "at the time of the recovery”.

In Kroll, Justice Williams, joined by Justice Coleman, perceives this legislative policy. He concludes that the advance credit given to the insurer for future worker’s compensation benefits should be included in ascertaining the insurer’s interests in the tort recovery. The opposing view of Chief Justice Kavanagh, joined by Justice Levin, is that contingent and uncertain prospective events can never be anticipated with total accuracy. We respectfully agree with Justice Williams’ observation that such reasoning "violates the clear language of the statute”, Kroll, supra, at 297.

Application of the foregoing principles yields the proper apportionment formula. The total costs of recovery are subtracted from the gross recovery. The amount of reimbursement for benefits paid by the insurer plus the amount of advance credit given to the insurer for benefits payable in the future, as of the date of the tort recovery, is divided by the tort recovery. This expresses the insurer’s proportionate share of the costs of the tort recovery. The balance of those costs is applicable to the employee’s interest in the tort recovery.

Applying Justice Williams’ formula, we also find that the trial court erred in ordering immediate payment of the carrier’s share of expenses to the employee. The payment should be deducted from the future credit remaining to the carrier.

Finally, we note that another panel of this Court has reached an opposite result, apparently relying on the opinion of Chief Justice Kavanagh in Kroll v Hyster, supra, see Fitzgerald v Challenge-Cook Brothers, Inc, 80 Mich App 524; 264 NW2d 348 (1978). We respectfully decline to follow that opinion but observe that the matter will finally be resolved by the eagerly awaited decision in Schalk v Michigan Sewer & Construction Co, supra.

Remanded for proceedings consistent with this opinion.

       MCL 418.827; MSA 17.237(827) states in relevant part:
      "(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.
      (6) Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. Expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery.”

       MCL 418.827(6); MSA 17.237(827X6).

       MCL 418.827(6); MSA 17.237(827X6).

       This formula, applied to a simple example, operates as follows. Assume the following:
      Total recovery $1,000.00
      fees
      Other costs
      Compensation paid to date
      Probable future compensation 150.00
      Total costs
      Applying these figures to the formula, we have the following. Total recovery less total costs, $1,000 — $400 = $600 Total compensation, past and future, $50 + $150 = $200 Divide the total compensation by the tort recovery, 200/1000 = 1/5. The carrier, having gotten 1/5 the total recovery, is responsible for 1/5 or 20% of the costs. In this case, 20% of $400 = $80. The carrier is therefore responsible for $80 in costs.
      At this point, the employee owes $50 to the carrier to reimburse him for past benefits. However, since the carrier is responsible for $80 in costs, these two figures can be set off, leaving a net sum due to the employee from the carrier of $30. Rather than paying this in cash at the time, it seems more appropriate to merely reduce the advance payment credit.
      In our example, the credit is $550 (total recovery less costs, less reimbursement for past compensation). Reducing this figure by $30, leaves a net credit to the carrier of $520.


author: M. F. Cavanagh, J. Allen, P.J.

text:
    PEOPLE v ROBERTS
    Docket No. 77-3280.
    Submitted April 6, 1978, at Lansing.
    Decided November 28, 1978.
    Leave to appeal applied for.
    Millando L. Roberts was convicted, on his plea of guilty, of larceny in a building. The Genesee Circuit Court, Earl E. Borradaile, J., sentenced the defendant to a term of four years in prison, with credit for time served. The defendant appeals, alleging 1) that the circuit court failed to inform him of the elements of the offense, 2) that the court failed to inform him that defense witnesses would be produced at court expense, and 3) that the determinate term of imprisonment was improper because it was not in compliance with the indeterminate sentence statute. Held:

    1. The first two allegations do not amount to error, and they are certainly not reversible error.
    2. The determinate sentence was improper as there is no statutory authority for such a sentence. Thus the sentence is vacated and the matter is remanded to circuit court for resen-tencing. On resentencing, the defendant should be given an indeterminate sentence with a minimum term not exceeding two-thirds of the maximum term.
    Remanded for resentencing.
    Allen, P.J., dissented. He would hold that the indeterminate sentence statute applies only to those "convicted for the first time” and that the defendant’s determinate sentence was proper. He would affirm.
    Opinion of the Court
    1. Criminal Law — Sentences—Indeterminate Sentences — Determinate Sentences — Statutes.
    There is no statutory authority for giving a convicted defendant a determinate sentence; therefore, where a judge sentenced a defendant to a jail term of only the maximum term allowed for the crime for which the defendant was convicted, with no minimum term, the matter should be remanded for resentenc-ing in accordance with the indeterminate sentencing statute (MCL 769.8; MSA 28.1080).

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 540, 592.

       21 Am Jur 2d, Criminal Law § 614. 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 20.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 20.

       21 Am Jur 2d, Criminal Law §§ 324-327, 339.

       21 Am Jur 2d, Criminal Law § 348.

      2. Criminal Law — Sentences—Indeterminate Sentences — Prior Convictions — Statutes—Court Rules.
    Indeterminate sentences are mandated for all convicted defendants, without reference to the number of prior convictions that a defendant may have; where a defendant is charged in a supplemental information as a second, third or fourth offender the maximum sentence may be enhanced accordingly but the sentence must still comply with the indeterminate sentencing act (MCL 769.8, 769.10, 769.11, 769.12; MSA 28.1080, 28.1082, 28.1083, 28.1084, GCR 785.8[3]).
    3. Criminal Law — Sentences—First-Time Offender — Prior Felony Convictions — Supplemental Information.
    A defendant must be sentenced as a first-time offender, even where the defendant has prior convictions, where the prosecutor has elected not to file a supplemental information charging the defendant as a second, third or fourth offender.
    4. Criminal Law — Sentences—Indeterminate Sentences — Allowable Minimum Term — Statutes.
    An indeterminate sentence should have a minimum term of years not exceeding two-thirds of the maximum term of years given (MCL 769.8; MSA 28.1080).
    Dissent by Allen, P. J.
    5. Criminal Law — Elements of Offense — Explanation to Defendant — Court Rules.

      The speciñc elements of an offense with which a defendant is charged need not be stated or explained to a defendant (GCR 1963, 78B.7[l][a]).

    6. Witnesses — Criminal Law — Supplying Witnesses at Court’s Expense — Information to Defendant.

      There is no requirement that a defendant be expressly informed that defense witnesses will be provided at the court’s expense.

      7. Criminal Law — Sentences—Indeterminate Sentences — First-Time Offenders — Prior Convictions — Statutes.

      An indeterminate sentence is required for a person who is "convicted for the first time”; it is not required for a defendant who is convicted for a second or subsequent time (MCL 769.8; MSA 28.1080).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Appellate Division, for the people.

      Rosenberg, Hartsook & Spuhler, for defendant on appeal.
    Before: Allen, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   M. F. Cavanagh, J.

Defendant was charged with and pled guilty to the offense of larceny in a building, MCL 750.360; MSA 28.592. He was sentenced to four years imprisonment with credit for time served, and appeals by right. For the purposes of this opinion, we adopt the further statement of facts and errors involved set out in the dissent.

We concur with our brother Allen that the errors claimed in regard to the plea-taking procedure lack merit. The conviction should be affirmed.

We disagree that the sentence too should be affirmed.

By a 1902 amendment of the Constitution of 1850, the Legislature was given the authority to establish indeterminate sentences. They did so by 1903 PA 136. The subsequent amendments indicate no departure from the indeterminate nature of the sentencing scheme. Nowhere can there be found specific statutory authority for a determinate sentence and, failing this, the sentence rendered in this case must fall.

The dissent makes a good argument for the literal interpretation of the language of MCL 769.8; MSA 28.1080, limiting its application to a person "convicted for the first time”. However, such an interpretation then renders meaningless MCL 769.10; MSA 28.1082 (second felony conviction), MCL 769.11; MSA 28.1083 (third conviction), and MCL 769.12; MSA 28.1084 (fourth conviction). In each of those subsequent sections the Legislature very clearly provided what the punishment could be for somebody convicted of subsequent felonies. It is interesting to note that even those subsequent sections, although increasing the allowable maximum, all provide for indeterminate sentencing. In other words, for the second conviction (MCL 769.10; MSA 28.1082) it is provided, "may be placed on probation or sentenced to imprisonment for a term not more than 1-1/2 times the longest term prescribed for a first conviction of such offense or for any lesser term in the discretion of the court”.

Furthermore, even assuming arguendo that the dissent’s reading of MCL 769.8; MSA 28.1080, is correct, GCR 1963, 785.8(3) requires the sentencing judge to "state the minimum and maximum sentence imposed by the court”. The literal language of the rule established by the Supreme Court, which would take precedence over inconsistent legislation in matters of practice and procedure, Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971), People v Joker, 63 Mich App 421; 234 NW2d 550 (1975), clearly mandates an indeterminate sentence, without reference to number of previous convictions. At the very least, GCR 1963, 785.8(3) indicates the correct interpretation to be given the sentencing statute in issue.

The annotations are replete with citations which indicate that to charge someone as a second, third, or fourth offender a supplemental information must be filed and a trial had, if necessary, on that supplemental information. Upon conviction the specified penalty can be imposed. The dissent suggests that this can be done without any supplemental information and without any adjudication of any prior convictions. To do so, we are persuaded, would shortcut a legislative scheme designed to be implemented by the prosecutor. The Legislature has provided a relatively simple method for the prosecutor to reach a second, third, or fourth-time offender, and to increase his punishment. If the prosecutor elects not to so charge but instead simply charges as a first-time offender the only punishment authorized by the Legislature is an indeterminate sentence. The court cannot exceed this authority and the limitations specified in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), apply.

We accordingly vacate the sentence heretofore imposed and remand to the trial court for resen-tencing pursuant to the Tanner opinion.

V. J. Brennan, J., concurred.

Allen, P.J.

(dissenting). Defendant was charged with and pled guilty to the offense of larceny in a building, MCL 750.360; MSA 28.592. Defendant was sentenced to four years imprisonment with credit for time served. Defendant now appeals of right, claiming error in the taking of his plea and in the determinate nature of his sentence.

Two errors are alleged in regard to the plea-taking. Defendant contends (1) that the court failed to inform him of the elements of the offense, and (2) that the court failed to inform him that defense witnesses would be produced at court expense. Neither of these allegations amount to error, and they are certainly not reversible error. The court rule and case law are clear that the specific elements of an offense need not be stated or explained. GCR 1963, 785.7(l)(a); People v Clifton, 70 Mich App 65; 245 NW2d 175 (1976). Defendant herein was adequately apprised of the offense and the nature of the offense. In taking defendant’s plea, the court complied with GCR 1963, 785.7. In particular, it complied with GCR 1963, 785.7(l)(g)(v), (vi), and (vii) which concern the right to confront witnesses. There is no requirement that a defendant be expressly informed that such witnesses will be provided at the court’s expense. Moreover, the impact of the existing requirement leads to the inference that there is no burden on the defendant, financial or otherwise, to produce witnesses.

The more significant issue raised by defendant regards his sentencing. Defendant was sentenced to a four-year prison term. This was the maximum prison sentence permitted. MCL 750.503; MSA 28.771. No indeterminate sentence pursuant to MCL 769.8; MSA 28.1080 was given. Defendant contends that his sentence and any other sentence which is not an indeterminate sentence violates the indeterminate sentencing policies of this state. I disagree.

Defendant’s argument is twofold. First, indeterminate sentencing requires a sentence with a minimum at least one-third less than the maximum. Second, in Michigan, indeterminate sentencing is required in all cases. Defendant relies primarily on People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), and the following language from that case:

"Convinced as we are, that a sentence with too short an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act.” 387 Mich at 690.

As defendant contends, Tanner established the parameters for indeterminate sentences. However, Tanner did not deal with the question of when an indeterminate sentence was proper or necessary. There was no question that the defendant in Tanner received an indeterminate sentence. Neither the majority nor the dissent in Tanner discussed when an indeterminate sentence is required, and the case must be read in this context. When the language quoted above is examined in its proper context, it is apparent that the parameters established are relevant only when dealing with an indeterminate sentence.

An indeterminate sentence is required by statute, MCL 769.8; MSA 28.1080, for a person who is "convicted for the first time”. This language is found in the first clause of the statute. It was expressly added to the statute by the Legislature in 1905, and it is still retained. This unambiguous legislative statement cannot be ignored. The Legislature intended that the indeterminate sentencing statute must be applied only to first offenders. The Legislature established a scheme permitting a determinate sentence for other than first offenders. In the instant case, defendant had four prior felony convictions. Hence, defendant was not a first offender and the sentencing judge did not have to apply indeterminate sentencing. The four-year sentence defendant received was within the range permitted and there was no abuse of discretion in giving the sentence in this case.

Defendant calls attention to a pair of recent cases representing a split of authority in this Court. People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), held that a sentence of 23 to 24 months for a person who was not a first offender violated the indeterminate sentencing statute in light of the parameters set forth in People v Tanner, supra. People v Banks, 73 Mich App 492; 252 NW2d 501 (1977), while recognizing People v Tanner, supra, held that a sentence of 3 to 4 years to a defendant with prior felony convictions was not a violation of the indeterminate sentencing statute because that statute did not apply to other than first offenders. These cases dealt with the limits placed on a sentencing judge when giving an indeterminate sentence to a person other than a first offender. This is not the situation before us, and, therefore, I decline to discuss the issue of Redwine and Banks. The instant case deals with a determinate sentence and, as has been discussed above, a judge’s discretion to give such a sentence to subsequent offenders has not been precluded by the indeterminate sentencing statute.

I would affirm.

       1905 PA 184:1921 PA 259:1927 PA 175.

        See MCL 769.13; MSA 28.1085, In re Brazel, 293 Mich 632; 292 NW 664 (1940), and People v Parker, 50 Mich App 537; 213 NW2d 576 (1973).

       It is interesting to note that Tanner was 23 at the time he was sentenced for manslaughter, which was taken as an included offense of the crime charged, first-degree murder. Tanner had two prior convictions: attempted larceny from a building and unarmed robbery. Records and Briefs, Supreme Court, 4 December term 1971, Defendant-Appellant’s Brief, 3 and Appendix, 4a.

       1905 PA 184.


author: T. M. Burns, J.

text:
    FORD v CLARK EQUIPMENT COMPANY TRIM v CLARK EQUIPMENT COMPANY
    Docket Nos. 77-3488, 77-3489.
    Submitted June 13, 1978, at Grand Rapids.
    Decided November 28, 1978.
    Robert L. Ford was killed and Lee Trim injured in a fall from a platform. The two men were employees of B. L. Harroun & Son, Inc., which had contracted to install an overhead sprinkler system in a factory building owned by Clark Equipment Company. The accident occurred when a rope hanging from the ceiling-level platform on which the men were working was caught on a hi-lo being driven by a Clark employee, jerking the platform and causing the men to lose their balance. Nancy A. Ford, as administratrix of Ford’s estate, and Lee Trim and Julie Trim, brought separate actions against Clark for damages for negligence. Clark demanded that Harroun assume the defense of the suits pursuant to an indemnity clause contained in the contract. Harroun refused to assume the defense and Clark brought third-party actions against Harroun alleging its right to indemnification both under the contract and at common law. Clark reached proposed settlements with the plaintiffs and informed Harroun of its intent to settle unless Har-roun assumed the defense. Harroun again refused the tender of defense, Clark settled the suits, and the third-party action went to trial. The Berrien Circuit Court, Zoe S. Burkholz, J., entered a judgment of no cause of action in favor of Harroun. Clark appeals, and the cases were consolidated for hearing. Held:

    1. The contractual indemnity clause is governed by a statute which voids a promise in a construction contract to indemnify the promisee against liability for damages for injury resulting from the sole negligence of the promisee. In this case the indemnity agreement purported to indemnify Clark in the event an injury was caused in whole or in part by Clark. The clause is severable. The statute renders void and unenforceable the clause insofar as it relates to Clark’s sole negligence. The promise to indemnify if Clark was partially responsible for the injury is not voided by the statute and is enforceable.

      References for Points in Headnotes

       13 Am Jur 2d, Building and Construction Contracts § 141.
    Building contractor’s liability, upon bond or other agreement to indemnify owner, for injury or death of third persons resulting from owner’s negligence. 27 ALR3d 663.

       17 Am Jur 2d, Contracts § 230.

       15A Am Jur 2d, Compromise and Settlement § 46. 41 Am Jur 2d, Indemnity §§ 33, 42.

      2. The trial court erred by requiring that in order to recover Clark must show that it was actually liable to Ford and Trim. In order to encourage settlements of suits, Clark should be required to show only its potential liability to the plaintiffs. In this case, it must be shown that the facts are covered by the indemnity agreement and that the settlements were reasonable.
    Reversed and remanded.
    1. Indemnity — Contracts—Construction Contracts — Negligence —Statutes.
    An indemnity provision in a construction contract which seeks to protect the promisee from liability for personal injury or property damage arising from the sole negligence of the promisee is void (MCL 691.991; MSA 26.1146[1]).
    2. Contracts — Indemnity—Severance—Negligence.
    A lawful promise based on good consideration is not rendered invalid because an unlawful promise is made for the same consideration; a contract which purported to indemnify a prom-isee for injury caused solely or in part by the promisee may be severed so that the illegal promise to indemnify for the promis-ee’s sole negligence is rendered void and the remainder of the contract remains enforceable.
    3. Indemnity — Settlement of Suit — -Burden of Proof — Potential Liability.
    The burden on a defendant in a suit who settles after a tender of the defense to a contractual indemnitor must not be too heavy if the state’s policy of encouraging settlements is to be effective; therefore, an indemnitee-defendant, in order to recover on the contract of indemnity, need show only its potential, as opposed to its actual, liability to an injured party.
    4. Indemnity — Burden of Proof — Settlement of Suit — Reasonableness.
    A contractual indemnitee, in order to recover where there is an enforceable contract of indemnity, where a reasonable tender of defense with notice that a settlement will be entered is made, and where the tender is refused, must show that the fact situation of the original claim is covered by the contract of indemnity and that the settlement is reasonable.
    5. Indemnity — Potential Liability op Indemnitee — Tender op Defense — Settlement op Suit.
    The "potential liability” to an injured plaintiff which must be shown by an indemnitee who has tendered the defense to a contractual indemnitor along with notice that a settlement is to be entered and who has had that tender refused, is that the indemnitee acted reasonably in settling the underlying suit.

      Cholette, Perkins & Buchanan (by Edward D. Wells), for Clark Equipment Company.

      Hillman, Baxter & Hammond (by Robert N. Hammond and Joel M. Boyden), for B. L. Harroun & Son, Inc.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   T. M. Burns, J.

The important questions in these consolidated cases relate to the effect of MCL 691.991; MSA 26.1146(1) on the indemnity contract between third-party plaintiff, Clark Equipment Company (Clark) and third-party defendant, B. L. Harroun & Son, Inc. (Harroun) and, if the statute does not void the entire indemnity portion of a contract, did the trial court properly instruct the jury on the showing Clark was required to make to recover under the indemnity agreement. Clark also seeks review of two evidentiary questions.

Harroun contracted with Clark to install an overhead sprinkler system in one of Clark’s facilities. One clause of the contract provided that Harroun indemnify Clark as follows:

"It is understood and agreed that the seller will indemnify and save harmless the buyer from and against any and all claims for injury or death to persons or damage to property (including costs of litigation and attorney’s fees) in any manner caused by, arising from, incident to, connected with or growing out of the work to be performed under this contract, regardless of whether such claim is alleged to be caused, in whole or in part, by negligence or otherwise, on the part of the buyer or its employees. Seller will promptly notify buyer in writing of any such claim, setting forth all details thereof known to seller.”

On September 7, 1971, three Harroun employees were continuing the work which had begun several weeks earlier. Robert Ford and Lee Trim were working near the ceiling on a platform provided by Harroun. This platform apparently rested on the steel beam superstructure of the building, but was not secured to it in any way. As the work progressed, the Harroun employees would skid the platform along the steel to the next connection point. This skidding of the platform eventually brought Trim and Ford directly over one of the main aisleways of the plant.

In performing their work, Ford and Trim brought sections of pipe from the floor to the platform. To accomplish this, one end of a rope was tied to the platform and the opposite end lowered to the third employee who would tie it to the pipe. The men on the platform would then pull the rope, with the pipe, up to the platform. Unfortunately, the rope was not coiled on the platform as it was brought up, but was allowed to dangle down and form a loop.

Clark had not discontinued its operation while the sprinkler system was being installed. While the Harroun employees were on the platform pulling up the pipe, a hi-lo driver entered the building and proceeded down the aisle. The protective overhead cage of the hi-lo caught the loop which was formed by the rope and severely jerked the platform. Both Trim and Ford lost their balance and fell to the floor. Ford was killed in the fall and Trim was knocked unconscious.

Ford’s estate and Trim brought separate actions against Clark. Upon receipt of the complaint, Clark wrote to Harroun demanding that it assume the defense and indemnify Clark under the contract. The demand was refused. Clark then started the third-party actions involved in this appeal alleging both the contractual right to be indemnified and a claim of common law indemnity.

After substantial discovery was completed, Clark and the original plaintiffs reached a tentative settlement of the original suits. Clark informed Harroun that unless Harroun agreed to assume the defense on behalf of Clark and agreed to hold Clark harmless under the contract, Clark would consent to judgments of $50,000 in the Ford case and $3,500 in the Trim case. Harroun again refused to take over the defense because it believed the contractual indemnity agreement was void and because it believed that Clark could prevail on the merits at trial.

After the refusal to take over the defense, Clark consented to judgments in the amounts noted above and these judgments have been satisfied. The third-party action then proceeded to trial. Under the court’s instructions, the jury found for Harroun. Clark appeals in each case and we have consolidated the cases for review.

I

The first problem we must deal with is the effect of MCL 691.991; MSA 26.1146(1) on the contractual indemnity provision quoted above. The statute provides:

"A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith, purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable.”

The court below, by its ruling and instruction, adopted Clark’s argument that the policy of the act could be enforced by merely striking so much of the contractual provision as would require Har-roun to indemnify Clark for Clark’s sole negligence. The agreement would, therefore, provide indemnity if Clark and Harroun were concurrently negligent, or if Clark were held liable because of Harroun’s negligence. Harroun argues that the entire indemnity provision of the contract is void and unenforceable.

The precise scope of this contract invalidating provision has never been stated. Compare, Brda v Chrysler Corp, 50 Mich App 332; 213 NW2d 295 (1973), with Nanasi v General Motors Corp, 56 Mich App 652; 224 NW2d 914 (1974). After considering the arguments raised by the parties, we conclude the more appropriate rule is that applied in Robertson v Swindell-Dressler Co, 82 Mich App 382, 400; 267 NW2d 131 (1978). The rule is concisely stated in 17 CJS, Contracts, § 289(a), p 1220: "A lawful promise based on good consideration is not invalid because an unlawful promise is made for the same consideration.”

In this case Harroun, in effect, made two promises in the indemnity clause; to indemnify for Clark’s sole negligence and to indemnify if the injury was caused "in part” by Clark’s negligence. Both promises are supported by the same consideration. Only the first promise is made illegal by the construction statute. The promise to indemnify Clark even if Clark was partially responsible for the accident or injury is not voided by the statute and may be enforced. It does no violence to either the contracting party’s intent or the statute to sever this independent, unenforceable promise from the rest of the indemnity clause on the facts of this case. See, Robertson v Swindell-Dressler Co, supra.

11

Having concluded that Clark may have indemnity under the contract in a proper case, unless it was solely responsible for the accident, we must next determine if the trial court correctly instructed the jury concerning what Clark must show in order to recover. The parties have stated the dispute to be over whether the indemnitee, Clark, must show "actual” or "potential” liability to Trim and Ford. Neither party has directed our attention to specific Michigan authority which covers this situation, and we have found none.

The trial court, by its instruction, required a showing of actual liability from Clark to Ford and Trim. In other words, Clark was forced to prove, under its contractual indemnity theory, that it was negligent and that Ford and Trim were free from contributory negligence and additionally, to satisfy the construction statute, it was required to show that the injuries were not the result of Clark’s sole negligence. For the reasons expressed below, we hold this was reversible error.

The policy of this state is to encourage settlements of suits. The settlement of a suit benefits both parties and the public. If this policy is to be effective, the burden on the defendant who settles after a tender of the defense to the contractual indemnitor is refused must not be too heavy. Cf. Morrissette v Sears, Roebuck & Co, 114 NH 384; 322 A2d 7 (1974). We, therefore, hold that to recover on the contract of indemnity, Clark need show only its potential, as opposed to its actual, liability to Trim and Ford. See discussion in Tankrederiet Gefion A/S v Hyman-Michaels Co, 406 F2d 1039, 1043, (CA 6, 1969).

We would be derelict in our duty to end the discussion at this point for the term potential liability means many things to many courts. We will attempt, therefore, to explain what this term means to us and what must be shown by the contractual indemnitee or indemnitor to recover or to avoid recovery. The present discussion must be limited in application, of course, to cases of the type involved here, that is, an enforceable contract of indemnity exists, a seasonable tender of defense with notice that a settlement will be entered is made and the tender of defense is refused.

To recover under these circumstances the in-demnitee must show that the fact situation of the original claim is covered by the contract of indemnity and that the settlement is reasonable. Parfait v Jahncke Service, Inc, 484 F2d 296 (CA5, 1973).

Potential liability actually means nothing more than that the indemnitee acted reasonably in settling the underlying suit. The reasonableness of the settlement consists of two components which are interrelated. The fact finder must look at the amount paid in settlement of the claim in light of the risk of exposure. The risk of exposure is the probable amount of a judgment if the original plaintiff were to prevail at trial, balanced against the possibility that the original defendant would have prevailed. Chicago, R I & P R Co v Dobry Flour Mills, 211 F2d 785 (CA10, 1954), Wisconsin Barge Line, Inc v Barge Chem 300, 546 F2d 1125 (CA 5, 1977). If the amount of the settlement is reasonable in light of the fact finder’s analysis of these factors, the indemnitee will have cleared this hurdle. The fact that the claim may have been successfully defended by a showing of contributory negligence, lack of negligence or otherwise, is but a part of the reasonableness analysis and, therefore, subject to proof. Moses-Ecco Co v Roscoe-Ajax Corp, 115 US App DC 366; 320 F2d 685 (1963).

If it is shown that this suit would have been successfully defended, the indemnitee will not recover. The burden of presenting evidence on this point is on the indemnitor, but the ultimate burden of persuasion remains with the indemnitee to show that the settlement was reasonable under all the circumstances.

Because of the construction statute discussed in Part I of this opinion, the indemnitee must also show that the contract covers the situation. In the present case, that means that Clark must show, in addition to the reasonableness of the settlement as outlined above, that the liability was not the result of Clark’s sole negligence.

The trial court was correct in submitting the case to the jury because questions of fact exist on many points. Neither side was or is entitled to prevail as a matter of law. The standard under which the case was submitted was erroneous and requires a new trial where the potential, as opposed to the actual, liability of Clark will be the issue.

Ill

The disposition in Part II renders extended discussion of the evidentiary questions raised by Clark unnecessary. We mention them only to guide the trial court in the event of a retrial.

The trial court ordered references to insurance struck from both the contract between Clark and Harroun and a letter between the parties before these documents were admitted as evidence. Clark claims this evidence should have been admitted to counteract Harroun’s counsel’s remark in his opening statement that the case envolved the "big corporation, Clark on the one hand” and "Har-roun, a small, family corporation” on the other. Clark did not object to this statement below nor does it seek reversal on that ground here. We do not condone the statement, but it does not necessarily follow that Clark would be justified in introducing evidence that Harroun was insured. The question will be controlled by MRE 411 on a retrial. See, 2 Weinstein’s Evidence, ¶ 11[05], p 411-11.

Clark also objected to the presentation of expert testimony which embraced the conclusion that Clark was not negligent in this accident. The court admitted the testimony under former GCR 1963, 605 (repealed February 23, 1978, see 402 Mich cxxxiii. The matter will be controlled by MRE 702 and 704 on a retrial. We would note that a condition to admission under Rule 704 is that the evidence be otherwise admissible and, therefore, the proposed expert opinion must meet the requirements of Rule 702.

Reversed and remanded for proceedings not inconsistent with this opinion.

       The third Harroun employee had left the area to get more materials and was, therefore, not acting as a lookout. There was testimony that one of the duties of the third employee who remained on the ground was to act as a lookout.

       Trim gradually improved and returned to work. The only lasting effect of the fall was blurred vision which his doctors have assurred him will eventually disappear.

       Some courts would apparently forbid any inquiry into the possibility that the original suit may have been successfully defended where a tender of defense of that suit has been rejected. See, e.g., Missouri Pacific R Co v Arkansas Oak Flooring Co, 434 F2d 575 (CA8, 1970). We have rejected this approach because it restricts the proof under the concept of reasonableness more than is necessary to assure that the interest of both parties will be protected.


author: Allen, P.J.

text:
    JAFFE v OAKLAND COUNTY CLERK
    Docket Nos. 77-3972, 77-5250.
    Submitted June 9, 1978, at Lansing.
    Decided November 28, 1978.
    Lillian Jaffe and other council members of the City of Southfield filed a petition in Oakland Circuit Court seeking injunctive and declaratory relief which would prevent the setting of a date for a special election that could result in their recall from office as members of the Southfield City Council. Southfield Homeowners Action Committee was allowed to intervene. William J. Beer, J., ruled that the Southfield City Clerk had failed to follow the mandates of the Michigan Election Law in checking and verifying voter signatures on the recall petitions and set aside a special election scheduled by the Oakland County Scheduling Committee. The city clerk, and Southfield Homeowner’s Action Committee appeal. The question presented is whether the city clerk was required to make a signature to signature comparison between the names on the recall petition and the signatures on the signed voter registration cards filed in the clerk’s office. Held:

    The city clerk was not required to make a signature to signature comparison when checking recall petitions; comparison of petition signatures with computer print-out lists was sufficient.
    Reversed.
    Elections — Michigan Election Law — Recall Petitions — Comparison of Signatures — Registration Cards — Print-Out Lists— Statutes.
    The Michigan Election Law does not require the clerk of a governmental unit to compare each signature on a recall petition with the signature appearing on the signed voter registration card filed in the clerk’s office; a sufficient check and verification of the names on a recall petition is made where the clerk compares the names on the petition with the information contained in computer print-out lists of voters (MCL 168.961; MSA 6.1961).
    Reference for Points in Headnote
    26 Am Jur 2d, Elections § 237.

      Downs & Pirich, for plaintiffs.

      Sigmund A. Beras, Southfield City Attorney, for County Clerk Pat Flannery.
    Before: Allen, P.J., and Cynar and D. R. Freeman, JJ.

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

   Allen, P.J.

Does §961 of 1976 PA 66, MCL 168.961; MSA 6.1961, an act amending the removal and recall of public officials provisions of the Michigan Election Law* require the clerk of the governmental unit whose elected officials’ recall is sought, to compare each signature on the recall petitions with the signature appearing on the registration card, or is it sufficient if comparison be made with the names on voter print-out lists on file in the clerk’s office? The trial court ruled that comparison with the signatures on the original registration cards was required, and entered an order staying the recall election of plaintiff council members. From this order the defendant city clerk appeals. We reverse.

On July 25, 1977, recall petitions containing some 35,000 signatures for the recall of plaintiffs, members of the Southfield City Council, were submitted to defendant city clerk. Upon submission, each signature was checked against an IBM printout which showed the voter number, name, address, precinct number, date of birth, and date last voted of each registered elector. The print-out did not contain the signature of the elector. Only if the signature on the petition was illegible was the original signature card checked. As the signatures were checked against the print-out, a notation was made on the print-out so that duplicate signatures could be eliminated. Eight of the clerk’s office staff, augmented by six to eight people from other offices, working overtime each night until 9 or 10 p.m., completed the task in 14 days. According to defendant city clerk it would not have been possible to check each signature against the original signature within the 15-day period allowed by the statute but would have taken twice as long.

Upon completion of the task, the clerk attached a certificate on a form approved by the Secretary of State showing the number of signers on each petition who were registered voters, and the petitions were then filed with the Oakland County Clerk who in turn submitted them to the Oakland County Elections Director who, after counting the signatures as verified by the city clerk, certified the petitions to the Oakland County Scheduling Committee to propose a date for a special election. On August 12, 1977, plaintiffs filed in circuit court a petition for injunctive and declaratory relief. Following an evidentiary hearing at which testimony was given by election officials, the trial court ruled that the city clerk had failed to follow the mandates of the statute and set aside the election which was scheduled for September 27, 1977. An amended final order to this effect was entered September 26, 1977. From that order, defendant city clerk appeals to this Court.

Section 961 as it appeared prior to amendment is set forth below:

"Sec. 961. Whenever petitions signed as provided in sections 954, 955 or 956 of this act are filed against any officer, the official with whom such petitions are filed shall immediately cause the same to be checked with the registration lists to ascertain whether the signatures to said petitions are those of registered electors as stated therein and, if the official with whom such petitions are filed is not the custodian of the registration lists, then he shall have access to said lists for the purpose of making such check. Provided, That if the electoral district of the officers sought to be recalled is constituted of more than 1 city or township, then before such petitions are filed there shall be attached to the same the certificates of the clerks of the several cities and townships showing that the signers to said petitions are registered and qualified electors of the respective cities and townships. The clerk of each city and township before attaching such certificate shall have authority to strike out the names of all persons who are not registered electors of the city or township.”

As amended, § 961 reads as follows:

"Before a recall petition is filed the petition shall be submitted to the clerk of the governmental unit appearing the heading of the petition. The clerk shall compare the signatures of the petition with the registration records on file in his office and shall within 15 days after receipt of the petition attach to the petition a certificate showing the numbers of signers on each petition sheet who are registered electors of the governmental unit. The certificate shall be on a form approved by the secretary of state.”

The substitution of the word "compare” for the word "check” makes our decision difficult and close. Certainly the change in words provided a rational basis for the decision of the court below. Nevertheless, we do not agree. Five reasons support our conclusion.

First, in the absence of clear and specific language, a major change in policy may not be read into the statute. Roberts v IXL Glass Corp, 259 Mich 644, 648; 244 NW 188 (1932). It has long been recognized that handwriting similarity is so much a matter of opinion and so indefinite that generally it may not be acted upon in canvassing petitions. Thompson v Secretary of State, 192 Mich 512, 527; 159 NW 65 (1916). Thus, signatures appearing on petitions filed with the Secretary of State for initiative and referendum are presumed valid, and the burden is on the protestant to establish their invalidity by clear, convincing and competent evidence. In Karwick v Grajewski, 253 Mich 110; 234 NW 168 (1931), a case involving the sufficiency of signatures to petitions for the recall of the mayor of Hamtramck, the Court held that the city clerk was not to act as a handwriting expert. It is common knowledge that signatures change with age or illness. Penmanship when first registering is often different from a signature in later life. Handwriting hastily affixed to a petition at a shopping center or while standing on a street corner differs materially from handwriting leisurely affixed sitting at a desk.

Despite the fact that Thompson involved the canvass of petitions for the initiative rather than a recall, and Karwick was decided under an earlier Michigan statute which did not contain either the word "check” or "compare”, the reviewing process of recall petitions never involved the comparison of handwriting. Instead, the common practice in municipalities using the registration card system only, was to check the signature on the petition with the name on the signed registration card, and in municipalities using the print-out or other systems, to check the signature on the petition with the name on the print-out list. As interpreted by the trial court, the statute would materially change the well established practice. Had the Legislature intended so major a change it would have expressed such intent in the same clear and unambiguous language, viz: "Shall compare the signature on such application with the signature on the registration card”, as appears in § 523 governing the application for ballot requirements.

Second, the amending act substituted the word "records” for the word "lists” in the prior act. We find this change important. When the 1954 Michigan Election Law was passed, the only voting records in use or on hand were the registration cards. These are uniformly described as "registration lists” in the 1954 statute. By 1976, as noted earlier, a number of local units of government had augmented the signature card system with the print-out system. As augmented, the signature cards and the print-outs became the registration records. To us, the word "records” is more inclusive than "lists” in the limited way that word was used in the 1954 statute and clearly evidences a legislative intent to permit the use of more than the old registration cards. The "more” includes the print-out system then in use in many municipal units of government.

Third, the purpose of 1976 PA 66 was to shift the recall process to a different unit of government. An analysis of House Bill 5039, made just before its enactment, by the Analysis Section of the House of Representatives, House Committee on Elections, reads:

"At the present time, petitions for the recall of any elected county, township, city, village, or school official are filed with the clerk of the governmental unit involved (except that petitions for recall of the county clerk are filed with the probate judge). Some persons believe that it is extremely difficult for a clerk to deal with a recall petition for an official with whom he/she works closely. Further, it is almost impossible to convince the circulators of the petition that the certification is being handled objectively. For these reasons, some persons contend that recall petitions should be processed by a different level of government.

Nowhere in the bill analysis or in media releases following final enactment was any mention made that the bill prescribed a different canvassing methodology than had been practiced before. The absence of any reference by the analysis staff to a change in the well established practice of determining the sufficiency of petitions strongly suggests that the Legislature intended no such change.

Fourth, shortening the time within which the clerk is to canvass the petitions is inconsistent with the additional time required if the amendment requires a comparison of signatures. Prior to its amendment in 1976, the statute carried a 30-day deadline for completion of the petition checking process. MCL 168.963; MSA 6.1963. As amended by 1976 PA 66, the clerk was given 15 days to complete the canvassing process. Testimony taken by the trial court was convincing that double the time period is required if comparison must be made with the original registration card rather than a print-out list. It is inconceivable that the Legislature would shorten the time span if it had indeed intended to mandate the more lengthy process required under the statute as construed by the trial court.

Fifth, the use of computer print-out lists is approved by the Legislature. As stated earlier, many cities have placed the information appearing on the original voter registration cards onto computer print-outs. House Bill 5456, signed by the Governor on July 11, 1978, recognizes the practice. Under this bill, signatures placed on an application to vote may be compared with the name on the print-out rather than with the handwriting on the original registration card. This bill indicates legislative recognition and approval of "comparing” signatures with registered names rather than with specific signatures. It would be anomalous for the Legislature to permit verification of voters against names on computer print-outs at the initial point in an election, and then require signature to signature comparison at the recall stage, a point much later in the election process.

Reversed, no costs, a public question being involved.

       Removal and recall is covered in §§ 951-976 of the Michigan Election Law, 1954 PA 116. In 1976, the Legislature made major changes in these sections upon enacting 1976 PA 66. See MCL 168.951 et seq.; MSA 6.1951 et seq.

       "In trying to ascertain the legislative intent I observe that when the legislature was considering this matter under House Bill 5039 that the word 'checked’ was then changed to the word 'compare’ so I want Mr. Downs and all counsel, you, Mr. Hays, Mr. Beras, to know that I have examined that, too. * * * My interpretation of the word 'compare’ means to examine in order to discover like or unlike characteristics. The statute as amended now requires a comparison and no matter how difficult the task might have been, that is the mandate of the legislature. It no longer means to take the recall petitions and with their signatures and lay them alongside of a printout on registration lists. The best definition I can find in the law about signature itself, 'signature means a person’s name as written down or set down by himself. Therefore it becomes and must be the ruling of this Court that the recall petitions could not be used as a basis for setting up the election date until the comparison is actually made with the written signatures on the registration lists, cards, indexes. So having held the evidentiary hearing this Court now grants a preliminary injunction and temporary restraining order against the certification of the adequacy of the petitions, and the recall elections scheduled for September 27,1977 is cancelled.”

       At least nine cities were using computer print-outs in 1976. The units using such system were Midland, Flint, Saginaw, Lansing, East Lansing, Grand Rapids, Mt. Pleasant, Warren and Southfield.

        See footnote 7.

       During its passage through the Legislature, 1976 PA 66 was House Bill 5039.

       Upon signing, House Bill 5456 became 1978 PA 338 (MCL 168.501a; MSA 6.1501[1]).

       The fact that House Bill 5456 was adopted after recall petitions were presented in the instant case does not change our decision. House Bill 5456 amended § 523 of the Michigan Election Law. MCL 168.523; MSA 6.1523. That section refers to the initial voting stage and, prior to amendment, stated that before a person offering to vote is handed a ballot the election official "shall compare the signature on such application with the signature on the registration card”. Because § 523 was specific, legislation was necessary to change the procedure. Section 961 did not require signature to signature comparison.