author: M. F. Cavanagh, J.

text:
    TIMMONS v DEPARTMENT OF SOCIAL SERVICES
    Docket No. 77-2158.
    Submitted April 5, 1978, at Lansing.
    Decided April 2, 1979.
    Robert Timmons, by his wife Ethel Timmons, applied to the Midland County Department of Social Services for assistance under the ADC-I program (aid to dependent children for the reason of parental incapacity). Plaintiff was deemed eligible and received benefits. Plaintiff’s eligibility was thereafter redetermined by the county social services department resulting in the termination of such benefits. Plaintiff appealed the county department’s decision to an administrative law judge who determined that the plaintiff qualified for ADC-I. Defendant, the State Department of Social Services Hearing Authority, thereafter reviewed the administrative law judge’s opinion and reversed. Plaintiff appealed to the Midland Circuit Court, where the Director of the State Department of Social Services was added as a defendant. David Scott DeWitt, J., upheld the hearing authority’s determination denying benefits to the plaintiff. Plaintiff appeals, alleging, among other things, that the hearing authority erred by not considering plaintiff’s eligibility for ADC-U benefits. Held:

    1. Families with dependent children where the father is unemployed may qualify for ADC-U (aid to dependent children where the father is unemployed) benefits under a program funded on a matching basis by the Federal government and a participating state.
    2. Any state ADC-U plan must include within its definition of "unemployed father” any father who is employed less than 100 hours per month.
    3. The hearing authority did not err in determining that the plaintiff did not qualify for ADC-U benefits.
    4. The Department of Social Services’ adoption of the 100-hour standard for ADC-U benefits is fully consistent with the Legislature’s expressed intent to insure full Federal approval of the state’s social welfare programs and with the department’s statutory mandate to distribute such funds subject to Federal rules and regulations.

      References for Points in Headnotes

       79 Am Jur 2d, Welfare Laws § 11.

       79 Am Jur 2d, Welfare Laws § 15.

       2 Am Jur 2d, Administrative Law §§ 621, 682.

      5. The Department of Social Services regulation regarding eligibility standards for ADC-I benefits is in conflict with the letter and spirit of Federal law and is invalid.
    6. The administrative law judge’s determination of eligibility is reinstated since it is supported by substantial evidence on the whole record.
    The decision of the trial court, affirming the State Department of Social Services Hearing Authority’s denial of ADC-I benefits, is reversed. The determination allowing benefits is reinstated.
    1. Social Security and Public Welfare — Administrative Law — Social Services — ADC-U Benefits — Unemployed Father — Definition.
    Any state ADC-U (aid to dependent children where the father is unemployed) plan must include within its definition of "unemployed father” any unemployed father who is employed less than 100 hours per month.
    2. Social Security and Public Welfare — Administrative Law — Federal Regulations — ADC-I Benefits — Eligibility — Physical or Mental Incapacity — Ability to Support.
    A Federal regulation defining a "physical or mental incapacity” sufficient to qualify an individual for ADC-I benefits (aid to dependent children for the reason of parental incapacity) focuses on the effect of the parental incapacity or the ability to support or care for dependent children; the Federal regulation emphasizes a substantial reduction or an elimination of the support ability; the language used is inherently flexible and evidences an intent that no one factor related to support be automatically determinative of eligibility (45 CFR 233.90[c][l][iv]).
    3. Social Security and Public Welfare — Administrative Law — Department of Social Services — ADC-I Benefits — Eligibility For Benefits — Federal Regulations — Conflicts.
    Regulations by the Department of Social Services, pertaining to eligibility for ADC-I benefits (aid to dependent children for the reason of parental incapacity), which represent an effort by the state either to define the term "physically or mentally incapacitated” so as to exclude any parent who is able to work “full-time”, i.e., 100 hours or more per month, or at the very least to narrow the broad import of the applicable Federal regulations by using the number of hours worked as the sole determinative factor for eligibility are in conflict with the letter and spirit of Federal law; a denial of benefits based on this single determinative factor is invalid (45 CFR 233.90[c][l][iv]).
    4. Social Security and Public Welfare — Administrative Law — Administrative Law Judge — Trier of Fact — ADC-I Benefits — Record Support.
    An administrative law judge, as trier of fact, has the opportunity to hear testimony and view the witnesses in reaching his decision and his determination of a petitioner’s eligibility for ADC-I benefits (aid to dependent children for the reason of parental incapacity) should be upheld as long as it is supported by substantial evidence on the whole record and/or is authorized by law.

      Lawrence F. Gambino, Legal Services of Eastern Michigan, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone, Thomas R. Wheeker and Robert N. Rosenberg, Assistants Attorney General, for defendants.
    Before: Allen, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   M. F. Cavanagh, J.

Plaintiff, Robert Timmons, appeals the determination of the State Department of Social Services Hearing Authority that plaintiff was ineligible for benefits provided to families with dependent children under the ADC-I program (aid to dependent children for the reason of parental incapacity).

Plaintiff is a painter by trade, working a maximum of 30 hours per week. Since at least 1969, he has suffered from back problems that necessitate certain restrictions on his work activities. Due to his back condition and work limitations, he applied to the Midland County Department of Social Services (DSS) for assistance under the ADC-I program. In a Medical Examination Report submitted to the county DSS in October, 1973, plaintiff’s physician diagnosed his condition as degenerative disc disease and early degenerative arthritis of the spine. In the report he indicated that this condition was deteriorating and was expected to last for the plaintiff’s lifetime, but further stated that the plaintiff was employable with work limitations against prolonged standing, bending and lifting. Based on this report, the DSS certified plaintiff as disabled and eligible for ADC-I benefits in January, 1974, for the reason that his employment, although full-time, unduly endangered his health. Social Services specified that a medical review of this determination be conducted in July, 1974.

This review was finally concluded in September, 1974. The physician’s report shows a diagnosis substantially similar to the report filed in October, 1973. It noted work limitations of limited lifting, climbing and work endurance, but did indicate that plaintiff’s back condition had stabilized. On October 8, 1974, the DSS terminated plaintiff’s ADC-I benefits on the grounds that the "[m]edical or psychiatric findings” did not "justify disability to the extent that it will materially impair or affect [the plaintiff’s] Employability”.

Plaintiff appealed the county department’s decision. After a hearing, the administrative law judge determined that the plaintiff qualified for ADC-I. The hearing authority, acting under authorization of the state DSS director, reversed this decision on the grounds that plaintiff was no longer physically incapacitated as defined by Federal regulations and department policy. By order and opinion, the trial court upheld this determination, finding that there was sufficient evidence from the hearing record to support the termination of benefits. The court held further that because the plaintiff was considered fully employed by the DSS, he did not meet the Federal eligibility requirements of 45 CFR 233.90(c)(iv), in that he did not suffer an incapacity that "reduce[d] substantially * * * [his] ability to support or care for [his] otherwise eligible [children]”. Both the hearing authority’s decision and the trial court’s affirmance of plaintiff’s ineligibility for ADC-I attached considerable significance to the fact that plaintiff was fully-employed, i.e., he worked in excess of 100 hours per month.

Plaintiff contends on appeal: (1) the hearing authority erred by not considering plaintiff’s eligibility for ADC-U benefits, (2) the hearing authority’s decision was not supported by substantial evidence on the whole record, (3) the hearing authority applied incorrect standards to reach its decision by failing to consider the needs of plaintiff’s dependent children and by applying an eligibility standard in conflict with Federal law, and (4) the use of the 100-hours full-employment test for ADC-I eligibility constituted an irrebuttable presumption violative of due process and equal protection.

Plaintiff’s first asserted error concerns the hearing authority’s failure to consider the plaintiffs eligibility for ADC-U benefits. Families with dependent children where the father is unemployed may qualify for ADC-U benefits, under a program funded on a matching basis by the Federal government and a participating state. 42 USC 602-603, 607, MCL 400.10; MSA 16.410, MCL 400.56d; MSA 16.456(4). 45 CFR 233.100(a)(1)(i) defines an "unemployed father” as one who is employed less than 100 hours per month. Any state ADC-U plan must include fathers who meet this test. Plaintiff argues, however, that while the Federal requirements establish minimum eligibility standards which override any more exclusive state criteria, Quern v Mandley, 436 US 725; 98 S Ct 2068; 56 L Ed 2d 658 (1978), Townsend v Swank, 404 US 282; 92 S Ct 502; 30 L Ed 2d 448 (1971), they do not prevent states from creating broader eligibility standards. It is argued, therefore, that because plaintiff works less than 64 hours in any consecutive two-week period, he qualifies for ADC-U benefits under MCL 400.56d; MSA 16.456(4). We disagree and find that the hearing authority did not err.

The present version of MCL 400.56d; MSA 16.456(4) was enacted in 1966, at a time when Federal law permitted states participating in the ADC-U program to establish their own definition of unemployment for eligibility purposes. In 1968, however, Congress amended the statute to allow the Secretary of HEW to define unemployment. The stated purpose of the amendment was to provide for "a uniform definition * * * throughout the United States”. 1967 US Code Cong & Admin News, vol 2, p 2837. The present uniform standard, found at 45 CFR 233.100(a)(1)(i), states in mandatory terms, that a participating state’s ADC-U plan must include within its definition of "unemployed”, any father who works less than 100 hours per month. This standard has been incorporated into the Michigan ADC-U program by Item 216, p 3 of the DSS Assistance Payments (AP) Manual. Given Congress’s clearly stated goal of uniformity in administering the ADC-U program, MCL 400.56d; MSA 16.456(4) is of doubtful validity.

Our conclusion concerning MCL 400.56d; MSA 16.456(4) is further supported by other provisions of the Michigan Social Welfare Act that indicate the Legislature’s intent to cooperate fully with the Federal government in administering social welfare programs. The Legislature explicitly permits the Director of the State Department of Social Services to:

"distribute * * * subject to federal rules and regulations, and in accordance with the rules promulgated by the director, moneys appropriated by the legislature or received from the federal government for the granting of aid to dependent children.” MCL 400.14(b); MSA 16.414(b);
"adopt any plan required or desirable to participate in the distribution of federal moneys or the assistance of the federal government.”

and:

"[f]or the purpose of assuring full federal approval of the activities of the department and local departments with respect to the operation of a plan, * * * do all things reasonable and proper to conform with federal requirements pertaining to methods and standards of administration.” MCL 400.10; MSA 16.410.

The DSS’s adoption of the 100-hour standard set out in 45 CFR 233.100(a)(1)(i) is thus fully consistent with the Legislature’s expressed intent to insure full Federal approval of the state’s social welfare programs and with the department’s statutory mandate.

We next turn to plaintiff’s contention that the hearing authority improperly determined his eligibility for ADC-I benefits by applying standards in conflict with Federal law. Plaintiff bases his argument on the principle, upheld in a number of United States Supreme Court cases, that:

"[A]t least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” Townsend v Swank, supra, at 286. Quern v Mandley, supra, King v Smith, 392 US 309; 88 S Ct 2128; 20 L Ed 2d 1118 (1968).

Plaintiff argues that Rule 400.10(3) and AP Manual Item 215, p 2 and Item 216, p 3 establish eligibility requirements for ADC-I benefits in conflict with Federal regulations.

42 USC 606(a) defines a dependent child who may be eligible for aid under the AFDC program as one who "has been deprived of parental support or care by reason of the * * * physical or mental incapacity of a parent”. The Secretary of HEW defines the term "physical or mental incapacity” as:

" 'Physical or mental incapacity’ of a parent shall be deemed to exist when one parent has a physical or mental defect, illness, or impairment. The incapacity shall be supported by competent medical testimony and must be of such a debilitating nature as to reduce substantially or eliminate the parent’s ability to support or care for the otherwise eligible child.” 45 CFR 233.90(c)(1)(iv).

While the DSS Assistance Payments Manual cites the above regulation, the above-cited departmental policy and administrative rules also define a physically or mentally incapacitated parent as one who is unable to engage in "full-time employment”. The definition of this standard is "working less than 100 hours per month” and is borrowed from regulations pertaining to the ADC-U program.

The question before us is whether the regulations at issue constitute an impermissible attempt by the state to narrow eligibility standards for ADC-I benefits in such a manner as to conflict with Federal law. In cases finding such a conflict, the invalid state regulations created blanket exclusions by defining or creating an eligibility criterion in a manner inconsistent with the applicable Federal law or regulation. Townsend v Swank, supra, King v Smith, supra, Lopez v Vowell, 471 F2d 690 (CA 5, 1973), cert den 411 US 939; 93 S Ct 1903; 36 L Ed 2d 401 (1973).

The Federal regulation defining a "physical or mental incapacity” sufficient to qualify an individual for ADC-I benefits focuses on the effect of the parental incapacity on the ability to support or care for dependent children. It emphasizes a substantial reduction or an elimination of the support ability. The language used is thus inherently flexible and evidences an intent that no one factor related to support be automatically determinative of eligibility or ineligibility for ADC-I. The purpose is clearly to take into account the various ways a parent’s disability may affect the support of his or her family and the extent to which it is affected.

The regulations in the case at bar represent an effort by the state either to define the term "physically or mentally incapacitated” so as to exclude any parent who is able to work "full-time”, i.e., 100 or more hours a month, or at the very least to narrow the broad import of 45 CFR 233.90(c)(1)(iv) by using the number of hours worked as a sole determinative factor for eligibility. Under these definitions, it matters not that one’s ability to support may be substantially reduced. We agree with plaintiff that the DSS regulation at issue in the case at bar is in conflict with the letter and the spirit of Federal law. The denial of benefits to plaintiff was therefore invalid under the principle of King v Smith, supra. The decision of the hearing authority and the trial court is therefore reversed.

However, the initial disposition of this case makes it unnecessary to remand for a new hearing. The original decision of the administrative law judge, after hearing on the issue of eligibility, found that the plaintiff suffered from a physical incapacity and that this incapacity substantially reduced his ability to support his children. As the trier of fact, the administrative law judge had the opportunity to hear testimony and view the witnesses in reaching his decision. His determination of eligibility, therefore, under the principle enunciated in Soto v Director of the Michigan Dep’t of Social Services, 73 Mich App 263, 271-272; 251 NW2d 292 (1977), will be upheld as long as it is supported by substantial evidence on the whole record and/or is authorized by law. Based on our review of the hearing transcript, we find that there was substantial evidence on the whole record to support the finding of plaintiff’s eligibility for ADC-I benefits. We therefore reinstate the decision of the administrative law judge.

The appellees argue that the administrative law judge improperly placed the burden of proof on the state to establish the changes in the "status quo” that justified the finding of ineligibility. We disagree that the administrative law judge misstated the burden of proof. The clear import of the statement in his opinion is that, while the plaintiff had introduced competent evidence establishing his eligibility for ADC-I benefits, the Midland County Department of Social Services failed to offer evidence sufficient to rebut the plaintiff’s asserted eligibility. See Stuart v Canary, 367 F Supp 1343, 1345 (ND Ohio, 1973).

Due to our view, that the DSS regulations’ invalid conflict with Federal law provides sufficient grounds for reversal, we do not reach the constitutional issue raised by the plaintiff. Ryan v Ore Lake, 56 Mich App 162, 167; 223 NW2d 637 (1974).

The decision of the trial court, affirming the State Department of Social Services Hearing Authority’s denial of ADC-I benefits is reversed. The decision of the administrative tribunal finding plaintiff eligible for ADC-I benefits is reinstated. No costs, as a public question is involved.

       The medical packet attached to the hearing record reveals a history of back problems first brought to the attention of the County Department of Social Services in October, 1969. The record also reveals a number of applications for aid over a four-year period; only the grant of benefits in 1974 and their subsequent cancellation are in issue here.

       Medical Examination Report, dated October 11, 1973.

       Disability Certification, dated January 9, 1974.

       Medical Examination Report, dated September 12, 1974.

       Disability Certification, dated October 8, 1974.

       Decision of Hearing Authority, May 2, 1975, Opinion of the trial court, No 75-005586-AA, dated April 19, 1977.

       Pub. L. 90-248, § 203(a), 1968.

       The rules challenged by plaintiff read:
      Rule 400.10(3):

        "In aid to dependent children, mental or physical incapacity is considered to exist if due to mental or physical inñrmity the parent is unable to engage in full-time employment, or to perform all the tasks required in a remunerative occupation for which the person under consideration is otherwise qualified, or to engage in employment without endangering life or health.” (Emphasis added.)
      DSS AP Manual, Item 215, p 2:
      "In order to consider a parent incapacitated, one of the following conditions must be met:
      "1. The parent’s incapacity must prevent him from working full-time at any job for which he is otherwise qualified; or * * and id., Item 216, p 3.
      "Unemployed — At application, a father who has been employed only part time must have worked less than 100 hours per month during the 30 days preceding the date of the first payment to be considered unemployed * * *.
      "Any father employed 100 or more hours (unless intermittent), even though his income is insufficient on assistance standards to meet the family’s needs, is not eligible.”

       It must be pointed out that while a state may not narrow eligibility requirements so as to conflict with Federal law, a state may still achieve its goal to allocate scarce social welfare resources by setting benefit levels. Townsend v Swank, supra, at 291.


source: Caselaw Access Project

author: D. C. Riley, P.J. T. Gillespie, J.

license: Public Domain

text:
    PEOPLE v STARR
    Docket No. 77-3457.
    Submitted November 21, 1978, at Detroit.
    Decided April 2, 1979.
    Steven D. Starr was convicted of third-degree criminal sexual conduct, Lapeer Circuit Court, Martin E. Clements, J. Defendant appeals, alleging that the trial court erred when it determined that the prosecution had exercised due diligence in attempting to secure the presence at trial of a witness arid in the subsequent admission into evidence of that witness’s preliminary examination testimony. Held:

    1. The record indicates that several steps which the prosecution could have taken to develop leads as to the witness’s whereabouts were not pursued. The prosecution, therefore, did not exercise due diligence in its attempts to secure the witness. The trial court abused its discretion in determining that due diligence had been exercised and erred in admitting the preliminary examination testimony.
    2. The Court suggests that trial judges should require prosecutors to recite on the record all efforts made to reach missing witnesses before admitting preliminary examination testimony into evidence.
    Reversed and remanded for a hearing to determine whether the defendant was prejudiced by the prosecutor’s failure to exercise due diligence.
    T. Gillespie, J., dissented. He would hold that the trial court did not clearly abuse its discretion in finding due diligence on the part of the prosecution. He concurs in the suggestion that more complete records be made of prosecution efforts to locate missing witnesses.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 343.
    63 Am Jur 2d, Prosecuting Attorneys § 27.
    81 Am Jur 2d, Witnesses § 2.

       5 Am Jur 2d, Appeal and Error § 783.

       5 Am Jur 2d, Appeal and Error § 774.

      Opinion of the Court
    1. Witnesses — Criminal Law — Preliminary Testimony — Statutes.
    Testimony of a witness taken at an examination or preliminary hearing may be used by a prosecutor where the witness cannot, for any reason, be produced at trial; however, the absence of a witness from trial is not excused where that absence results from the prosecution’s lack of good faith efforts or failure to exercise due diligence in attempting to secure the witness’s presence (MCL 768.26; MSA 28.1049).
    2. Witnesses — Criminal Law — Prosecutors — Due Diligence — Appeal and Error.
    The determination of whether a prosecutor has exercised due diligence in attempting to secure a witness for trial is a matter for the trial court, and that determination will not be overturned on appeal unless a clear abuse of discretion is shown.
    3. Witnesses — Criminal Law — Prosecutors — Due Diligence.
    Due diligence on the part of a prosecutor attempting to secure the presence of a witness at trial requires devoted and painstaking application to accomplish the undertaking, and encompasses not only efforts to pursue specific leads, but also those endeavors reasonably likely to produce them.
    4. Witnesses — Criminal Law — Prosecutors — Due Diligence — Prejudice — Remand.
    A defendant is to be presumed to have been prejudiced by the prosecution’s failure to exercise due diligence in attempting to secure a witness for trial until it is established that he was not prejudiced; where a trial court erroneously found due diligence, the case should be remanded for a hearing for determination of whether the defendant was prejudiced.
    Dissent by T. Gillespie, J.
    5. Witnesses — Criminal Law — Prosecutors — Due Diligence — Appeal and Error.

      The question of whether the prosecution has exercised due diligence in attempting to secure a witness for trial is for the trial court to determine, and a ñnding of due diligence will not be overturned on appeal unless a clear abuse of discretion is shown.

    6. Judges — Discretion — Abuse of Discretion.

      An abuse of discretion on the part of a trial court should not be found unless the trial court’s decision is so palpably and grossly violative of fact and logic that it evidences not the exercise of

      will but perversity of will, not the exercise of judgment but deñance thereof, not the exercise of reason but rather of passion or bias.

    7. Witnesses — Criminal Law — Prosecutors — Due Diligence — Discretion.

      A trial court did not clearly abuse its discretion in determining that the prosecution had exercised due diligence in attempting to secure the presence of a witness at trial where the record shows that the prosecution dutifully sought leads as to the witness’s whereabouts and conscientiously pursued the leads it had.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Earl H. Morgan, Jr., Prosecuting Attorney, for the people.

      Preisel & Penzien, for defendant.
    Before: D. C. Riley, P.J., and Bronson and T. Gillespie, JJ.

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

   D. C. Riley, P.J.

Defendant was convicted of third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b), on July 8, 1977. He was sentenced to 5 to 15 years in prison and appeals by right.

The people introduced the testimony of three witnesses at defendant’s trial. The complainant, an 18-year-old male, and the owner of the residence where the incident occurred, both testified from the witness stand. The preliminary examination testimony of a third witness, Anthony Grondin, who had witnessed and participated in the incident giving rise to the charge, was read to the jury after the court ruled that the people had made a diligent effort to produce him at trial.

Defendant contends that tlie trial judge erred in finding that the people had exercised due diligence to secure the appearance of the res gestae witness, and argues that the admission of Grondin’s prior testimony into evidence therefore constituted reversible error.

At the trial which began on July 6, 1977, the prosecutor indicated that three separate attempts to serve Grondin with a subpoena were unsuccessful. Those attempts were made on June 20, 21, and 29, 1977. During the last attempt, the officers learned that Grondin was "out of the state, out-of-town on vacation, that his location was unknown”. On July 5, 1977, the day before trial, the prosecutor called someone who identified herself as Grondin’s mother. She stated that "he is out-of-town, his whereabouts are unknown” and that she "didn’t know * * * when he would be coming back”.

Testimony taken at an examination or preliminary hearing may be used by the prosecutor whenever the witness who gave the testimony cannot, for any reason, be produced at trial. MCL 768.26; MSA 28.1049. However, this statute gives way to the defendant’s constitutional right of confrontation where a witness’s absence from trial stems from the prosecution’s lack of good faith efforts or failure to exercise due diligence in attempting to secure his presence. Barber v Page, 390 US 719; 88 S Ct 1318; 20 L Ed 2d 255 (1968), People v McIntosh, 389 Mich 82; 204 NW2d 135 (1973), People v Nieto, 33 Mich App 535; 190 NW2d 579 (1971), lv den 385 Mich 771 (1971). The determination of due diligence is a matter for the trial court, and that determination will not be overturned on appeal unless a clear abuse of discretion is shown. People v Casteneda, 81 Mich App 453, 460; 265 NW2d 367 (1978), People v Baldwin, 74 Mich App 700, 704; 254 NW2d 619 (1977).

Due diligence requires devoted and painstaking application to accomplish an undertaking. People v Johnson, 51 Mich App 224, 231; 214 NW2d 713 (1974). Where there are no leads as to a witness’s whereabouts, the prosecutor should inquire of known persons who might reasonably be expected to have information that would help locate the witness. Where there are specific leads as to a witness’s location, the prosecutor must check them out. See McIntosh, supra, People v Hunter, 48 Mich App 497; 210 NW2d 884 (1973), lv den 390 Mich 805 (1973). Due diligence circumscribes not only efforts to pursue specific leads, but also those endeavors reasonably likely to produce them.

Here the prosecution followed the leads it had and came up empty. However, other steps were clearly feasible. Complainant was able to name five other individuals who were present on the night of the alleged incident, one of whom testified at trial, and one of whom was identified as Grondin’s girl friend. Surely some inquiry could have been made of these individuals, but none appears in the record. Further, the complainant had heard a rumor about Grondin’s whereabouts. A casual remark by defense counsel also suggests that some of the officers where defendant was incarcerated were well-acquainted with the movement of people in the Dryden area, the home of all the principals. Pursuing these potential sources of information would not have been excessively burdensome in this case. Whether such inquiries would have been fruitful is immaterial. "The fact that an attempt may prove unsuccessful does not justify the prosecution’s failure to make that attempt.” People v McIntosh, supra at 87.

We therefore conclude that the lower court abused its discretion in finding due diligence, see People v Hunter, supra, and remand this case for a hearing in accordance with the procedures outlined in People v Pearson, 404 Mich 698; 273 NW2d 856 (1979), as to whether defendant was prejudiced by the prosecution’s failure to exercise due diligence. Defendant shall be presumed prejudiced until the contrary is established. If the prosecution can show that the missing testimony consisted of cumulative testimony or that its absence constituted harmless error, or that the res gestae witness could not have been produced at trial, the burden of overcoming the presumption will have been met and the conviction affirmed. However, a failure to do so shall result in a new trial.

In conclusion, we note that many due diligence issues are appealed when the court does not make a full record of all the efforts which have been made to bring a witness to trial. In light of Barber v Page, supra, a trial judge cannot rely on the belief that he has absolute discretion in such matters. Before admitting preliminary examination testimony into evidence under MCL 768.26; MSA 28.1049, a trial judge should require the prosecutor to recite on the record all efforts made to reach the missing witnesses. Such a procedure will not only aid in a trial judge’s efforts to make a sound discretionary choice, but prevent uninformed second guessing on the part of appellate courts.

Reversed and remanded.

Bronson, J., concurred.

T. Gillespie, J.

(dissenting). I respectfully dissent. The charge in this case involved a series of indignities which the defendant and Mr. Grondin inflicted upon the complainant. The defendant and Mr. Grondin forced the complainant to perform fellatio, shaved his head, used a hemostat to pull hairs from complainant’s nose and eyebrows, and flushed his head in the toilet. There were also indications that the defendant threatened at least one witness in this case. Defendant was convicted by a Lapeer County jury and I would affirm their verdict.

It is certainly true that due diligence requires devoted and painstaking application to accomplish an undertaking, that a prosecutor should seek out reasonable leads, and that a prosecutor must pursue the leads he has. But whether the prosecution has complied with these requirements is a matter for trial court determination, and a trial judge’s finding of due diligence will not be overturned on appeal unless a clear abuse of discretion is shown. People v Casteneda, 81 Mich App 453, 460; 265 NW2d 367 (1978), People v Baldwin, 74 Mich App 700, 704; 254 NW2d 619 (1977).

"The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), People v Erb, 48 Mich App 622, 625-626; 211 NW2d 51 (1973).

In the present case, the prosecution dutifully sought leads and conscientiously pursued the leads it had. Additionally, the facts here parallel those in People v Stanford, 68 Mich App 168, 172-173; 242 NW2d 56 (1976), where this Court found no abuse of discretion in the trial court’s determination of due diligence. See also People v Blacksmith, 66 Mich App 216, 219-221; 238 NW2d 810 (1975), lv den 396 Mich 838 (1976). Consequently, I can find no clear abuse of discretion in our case. And, since the trial judge did not abuse his discretion in finding due diligence on the part of the prosecutor, he did not err in admitting Mr. Grondin’s preliminary examination testimony into the trial as evidence.

The majority also encourage trial courts to make complete records in these matters. I concur in that suggestion. And I specifically encourage prosecutors to recite efforts made to see, call, or write friends, neighbors, relatives, employers and associates of the witness, contacts made with police, and information sought through credit bureaus, morgues and records of probation and correction departments. If 10 additional minutes at trial will prevent appeals, remands, reversals and new; trials in cases such as the present, we must make the investment.


author: V. J. Brennan, P.J.

text:
    PEOPLE v ALBERT
    Docket No. 77-4082.
    Submitted January 10, 1979, at Lansing.
    Decided April 2, 1979.
    Defendant Keith Albert was convicted of armed robbery in the Washtenaw Circuit Court, Ross W. Campbell, J. During the investigation an investigating officer intentionally destroyed a taped confession of one of the perpetrators who subsequently negotiated a lesser charge in return for testifying against the defendant and testified at the trial of defendant. The destroyed confession was the first confession of the witness and failed to implicate the defendant in the crime. Defendant appeals. Held:

    The intentional destruction by a police officer of evidence favorable to a defendant mandates reversal of his conviction. The destruction of the first confession of the witness deprived the defendant of a powerful tool in cross-examining and impeaching that prosecution witness, seriously impairing the defendant’s constitutional right to confront. The testimony of that witness will be suppressed on retrial.
    Reversed.
    Criminal Law — Police Misconduct — Destruction of Evidence.
    The intentional destruction by a police officer of evidence favorable to a defendant mandates reversal of his conviction, and, where the destruction of that evidence deprived the defendant of a powerful tool in cross-examining and impeaching a key prosecution witness, seriously impairing the defendant’s constitutional right to confront, the testimony of that witness should be suppressed on retrial.
    Reference for Points in Headnote
    29 Am Jur 2d, Evidence § 292.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and James S. Sexsmith, Senior Assistant Prosecuting Attorney, for the people.

      Josephson & Fink, for defendant on appeal.
    Before: V. J. Brennan, P.J., and M. F. Cavanagh and C. J. Hoehn, JJ.

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

   V. J. Brennan, P.J.

Defendant, Keith D. Albert, was charged with the armed robbery of Edward Nicholas, Jr., in violation of MCL 750.529; MSA 28.797. On August 18, 1977, following a jury trial defendant was found guilty as charged. On September 9, 1977, defendant was sentenced to 15 months to 5 years in prison, with credit for 27 days already spent in jail. Defendant appeals as of right.

Defendant raises four issues — the first of which warrants reversal.

The case involved misconduct by a police officer in destroying a tape-recorded statement of a prosecution witness, which admittedly was beneficial to the defendant. It was the prosecution’s theory that the armed robbery which occurred at Putnam Hall on the Eastern Michigan University campus was perpetrated by Thornton Logan, Willy Franks and Christopher Hayes. The defendant, being an accomplice, drove the perpetrators to the building, showed an escape route and drove the get-away car.

The defendant testified that he took the various individuals to the Putnam dormitory in order to buy marijuana so as to keep Logan’s mind off criminal activity.

Logan testified on behalf of the prosecution as part of a plea bargain wherein he was allowed to plead guilty to the lesser charge of assault with intent to commit robbery while armed. Logan testified to defendant’s direct involvement in the crime.

During Logan’s cross-examination it was disclosed that on February 3, 1976, 2-1/2 weeks after the robbery, he was arrested and made a taped confession to Sergeant Garland of the Eastern Michigan University Police Department. This statement described the events of the evening in question but did not implicate defendant as a participant in the robbery. On February 5, 1976, a second statement was made by Logan and taped by Sergeant Garland wherein the defendant was implicated.

The first tape-recorded confession was "discarded” by Sergeant Garland. It is the destruction of this statement and its unavailability at trial which defendant claims warrant reversal.

This Court in People v Amison, 70 Mich App 70; 245 NW2d 405 (1976), detailed the impact of loss of evidence through actions of the police or prosecutor. The following quote from People v Amison, supra, pp 79-80, represents a concise articulation of Michigan law on point:

"This Court has uniformly held that, absent intentional suppression or a showing of bad faith, the loss of evidence which occurs before a defense request for it does not mandate reversal. People v Eddington [53 Mich App 200; 218 NW2d 831 (1974)], People v Bendix, 58 Mich App 276; 227 NW2d 316 (1975), People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975). This Court has also held that the * * * [destruction of taped police broadcasts regarding a defendant’s description under the routine departmental policy of erasing broadcast tapes 30 days after their making] where the purpose is not to destroy evidence for a forthcoming trial, does not mandate reversal. People v Hardaway, 67 Mich App 82; 240 NW2d 276 (1976). It is only where this Court has found that there was no effort made to preserve the evidence initially, People v Anderson, 42 Mich App 10; 201 NW2d 299 (1972), remanded on other grounds, 391 Mich 419; 216 NW2d 780 (1974), or where there was the possibility that certain test results may have been actually suppressed, People v Drake [64 Mich App 671; 236 NW2d 537 (1975)], that this Court has found possible suppression mandating reversal.”

The pertinent inquiry in the present case is whether the action of Sergeant Garland in "discarding” the tape-recorded confession was performed in bad faith or for the purpose of destroying evidence for a forthcoming trial. People v Kelson, 71 Mich App 410; 248 NW2d 564 (1976); People v Hardaway, supra. Our inquiry need go no further than the following colloquy between the defense attorney and Sergeant Garland:

Mr. Pitts: "Q: Sure. He [Logan] indicated something about a previous tape or previous statement, correct?
Sgt. Garland: "A: Correct.
"Q: Where is that?
"A: It was discarded.
"Q: Why did you discard it?
"A: Because it had no relevancy. He wanted to change his testimony.
"Q: That was an opinion that you made and a decision that you acted upon, correct?
"A: It was at his request that I—
"Q: To throw it away?
"A: To discard anything that he had said.
"Q: But you don’t always do what a person tells you to do, certainly not a suspect, do you?
"A: It wasn’t anything that I wanted to hear.
"Q: It wasn’t anything you wanted to hear?
"A: No.
"Q: Do you know whether or not someone else wanted to hear it?
"A: Probably you.
"Q: Now, it becomes important to me to hear, right?
"A: Right.
"Q: All right. You no longer have it. We don’t know what he said, right?
"A: Correct.”

From the above we can only conclude that the intentional destruction of the evidence occurred with knowledge of its importance to the defendant herein. Bad faith has therefore been shown. Such conduct on the part of investigating officers cannot be tolerated and reversal of defendant’s conviction is mandated.

The present case presents a unique problem on remand. In most cases the proper remedy is retrial allowing the introduction of the suppressed evidence. Here that evidence has been destroyed.

The significance of this destroyed evidence is that the defendant is deprived of a powerful tool ino cross-examining and impeaching the key prosecution witness. In our judicial system the right of cross-examination is more than a desirable rule of trial procedure. "It is implicit in the constitutional right of confrontation, and helps assure the 'accuracy of the truth-determining process’.” Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297 (1973).

Since the prior statement of the witness was destroyed with details of its contents unknown it cannot be used to impeach the witness. The defendant’s constitutional right to confront is seriously impaired. Accordingly, in order to fully afford defendant his right to confront and cross-examine witnesses against him, on retrial the testimony of Thornton Logan is to be suppressed. This remedy is severe, however, the reprehensible conduct of the police officer in the case at bar warrants such action.

The three other issues raised by defendant are without merit and do not warrant discussion here.

Reversed.


author: D. F. Walsh, J.

text:
    BAYS v DEPARTMENT OF STATE POLICE
    Docket No. 77-4243.
    Submitted January 3, 1979, at Lansing.
    Decided April 2, 1979.
    Several officers and classified employees of the Michigan State Police brought an action in the Court of Claims against the Director of the Department of State Police and the State of Michigan seeking payment of compensation for scheduled off-duty standby time. Only two of the named plaintiffs, Detective Sergeant George Bays and Detective Sergeant James M. Thomas, had attempted to exhaust administrative remedies through the Civil Service grievance procedure before bringing the Court of Claims action. Neither of them proceeded to the stage where he had actually received a hearing. The Court of Claims, Joseph P. Swallow, J., found that the standby time was compensable but made no recommendation as to the rate of compensation. Defendants appeal by leave granted, alleging that the plaintiffs’ failure to exhaust administrative remedies precludes judicial review and that even if exhaustion were not necessary the Court of Claims has no jurisdiction over the matter. Held:

    1. The plaintiffs’ failure to exhaust their administrative remedies precludes judicial review, and the Court of Appeals is not persuaded that exhaustion was excused or not necessary in this case.
    2. The Court of Claims has no jurisdiction to review administrative action. That court’s jurisdiction is limited to original actions against the state. The proper forum for review of an administrative action is in the circuit court.
    Judgment vacated; remanded to the Civil Service Commission.
    1. Administrative Law —- Exhaustion of Remedies — Civil Service Commission — Grievance Procedure.
    A plaintiff state civil service employee who filed a complaint in the Court of Claims for payment of compensation allegedly due him had not exhausted his administrative remedies where he filed the complaint before obtaining a hearing on his grievance from an official of the Civil Service Commission; the failure to exhaust those remedies is not excused where the Court of Appeals is not convinced that he would have been denied a hearing had he set forth the full basis for his grievance or that it would have been futile for him to take his grievance a step higher and request the full commission to order a hearing.

      References for Points in Headnotes

       15A Am Jur 2d, Civil Service § 80.

       15A Am Jur 2d, Civil Service § 8.

       2 Am Jur 2d, Administrative Law § 560.

      2. Courts — Court op Claims — Civil Service Commission.
    The Court of Claims has no supervisory power over the Civil Service Commission.
    3. Administrative Law — Review op Agency Actions — Courts — Administrative Procedures Act — Statutes.
    The Administrative Procedures Act establishes the proper forum for judicial review of administrative decisions, and that is in the circuit court; the Court of Claims has no power of judicial review of administrative action (MCL 24.302, 24.303; MSA 3.560[202], 3.560[203]).

      James F. Finn and Jerome P. Cavanagh, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Varda N. Fink, Assistant Attorney General, for the Department of Civil Service, and Robert Kane, Assistant Attorney General, for the Department of State Police.
    Amicus Curiae:

      MacLean, Seaman, Laing & Guilford (by Kenneth Laing, Jr., and Kathleen Opperwall), for the Michigan Civil Service Commission.
    Before: Beasley, P.J., and D. F. Walsh and J. E. McDonald, JJ.

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

   D. F. Walsh, J.

Defendants appeal entry by the Court of Claims of judgment for plaintiffs. The Court of Claims ruled that plaintiffs, officers and classified employees of the Michigan State Police, were entitled to compensation for standby time. Specifically, the Court of Claims judge found that scheduled off-duty standby hours were "work” within the meaning of the rules of the Civil Service Commission. He further ruled, however, that the Court of Claims did not have jurisdiction to require the Civil Service Commission to set any particular rate of compensation.

We address two issues on appeal:

1. Did plaintiffs’ failure to exhaust administrative remedies preclude judicial review?

2. If administrative remedies had been exhausted, or if exhaustion was unnecessary or had been excused, did the Court of Claims have jurisdiction over plaintiffs’ action?

Only two of the named plaintiffs attempted to exhaust administrative remedies before filing for relief in the Court of Claims. Detective Sergeant James M. Thomas filed a grievance but stopped at step three of the Civil Service Commission’s established grievance procedure. Detective Sergeant George Bays proceeded to step four, where he requested a hearing on his grievance. In response to his request, John G. Fitch, employee relations administrator of the Civil Service Commission’s state employee relations division, wrote the following letter:

"This letter is in response to your appeal to Step 4. A conference between the parties was called by the Employee Relations Division and held on September 28, 1973.
"Since your appeal concerns a 'stand-by’ pay policy it will be necessary for you to provide this office with a copy of the policy which has been violated before we can process your grievance further.
"If no 'stand-by’ pay policy exists, and the intent of your grievance is to have the Hearing Officer provide such a policy, then the matter cannot be handled through the Grievance Procedure. It is not within the jurisdiction of the Hearing Officer to legislate policies, rules or regulations.”

Det. Bays did not respond to Mr. Fitch’s letter. He did not appeal to the Civil Service Commission itself (step five). Instead, he filed his claim for standby compensation in the Court of Claims. In addition to challenging the jurisdiction of the Court of Claims over plaintiffs’ claim, defendants unsuccessfully argued in that forum that plaintiffs had not exhausted the administrative remedies available to them as established by the Civil Service Commission.

It is plaintiffs’ position that, based on Mr. Fitch’s letter, further pursuit of Civil Service Commission remedies would have been an exercise in futility. Trojan v Taylor Twp, 352 Mich 636, 638-639; 91 NW2d 9 (1958). We disagree. In the Court of Claims plaintiffs stated their theory as follows: "Plaintiffs claim that these after duty hours, which said officers are required to serve, on a scheduled basis, are actual hours worked, and are compensable.” They then proceeded to discuss various rules of the Civil Service Commission which, they argued, supported their claim. (Theory of Plaintiffs’ Case and Brief in Support Thereof, filed in the Court of Claims February 3, 1977.) In rendering a decision for plaintiffs, the Court of Claims judge relied on certain Civil Service Commission rules which, he found, established their right to compensation for standby time.

We are not convinced that, had he set forth the specific basis for his grievance as later revealed in the Court of Claims (i.e., certain rules of the Civil Service Commission), plaintiff Bays would have been denied a hearing at step four. Nor are we convinced that it would have been futile for him to take his grievance to step five and ask the commission to order a step four hearing. The record does not set forth sufficient evidence of prejudgment on the part of the Civil Service Commission to allow immediate judicial review. Hardy v State Personnel Director, 392 Mich 1, 5, fn 1; 219 NW2d 61 (1974). We note also that the Civil Service Commission has filed an amicus curiae brief in this Court and has indicated its desire for development of a full record before the commission. In light of the several significant policies served by the doctrine of exhaustion of administrative remedies, we are not persuaded that exhaustion was excused in this case. IBM Corp v Dep’t of Treasury, 75 Mich App 604, 610; 255 NW2d 702 (1977), lv den 401 Mich 816 (1977).

We also reject plaintiffs’ argument that exhaustion was not necessary because their action filed in the Court of Claims was not an appeal from the Civil Service Commission but rather a claim for compensation for past services. The cases cited by plaintiffs in support of their argument did not involve interpretation of civil service rules. Farrell v Unemployment Compensation Comm, 317 Mich 676; 27 NW2d 135 (1947), Norris v Liquor Control Comm, 342 Mich 378; 70 NW2d 761 (1955). The instant plaintiffs were in effect asking the Court of Claims to exercise supervisory power over the Civil Service Commission. The Court of Claims has no power to do so. Farrell v Unemployment Compensation Comm, supra, at 680.

We hold that exhaustion of administrative remedies was necessary and now turn to the question of which court will be the appropriate forum for review in the event of appeal from a final Civil Service Commission ruling.

Although the Administrative Procedures Act does not apply to the internal procedures of the Michigan Civil Service Commission, Viculin v Dep’t of Civil Service, 386 Mich 375, 393-394, 396-397, fn 20; 192 NW2d 449 (1971), MCL 24.203(2); MSA 3.560(103)(2), the Supreme Court has adopted GCR 1963, 706.3, which was intended to promote uniformity of the appeal process from administrative agencies, Viculin v Dep’t of Civil Service, supra at 396, fn 20, and which provides as follows:

"An appeal from a decision of the Michigan Civil Service Commission is governed by the provisions for appeals from administrative agencies in the Administrative Procedures Act.” MCL 24.201 et seq.; MSA 3.560(101) et seq.

The Administrative Procedures Act establishes the proper forum for judicial review of administrative decisions in MCL 24.302; MSA 3.560(202):

"Judicial review of a final decision or order in a contested case shall be by any applicable special statutory review proceeding in any court specified by statute and in accordance with the general court rules. In the absence or inadequacy thereof, judicial review shall be by a petition for review in accordance with sections 103 to 105 [MCL 24.303-24.305; MSA 3.560(203)-3.560(205)].”

Under § 103 of the APA, judicial review of administrative decisions is available in circuit court. We agree with Justice Levin that the Court of Claims has no jurisdiction to review administrative action:

"The Court of Claims Act [MCL 600.6401 et seq.; MSA 27A.6401 et seq.] does not establish an 'applicable special statutory review proceeding’ and therefore judicial review may be obtained in the circuit court. The Court of Claims Act establishes a procedure for commencement and adjudication of original actions against the state. The Court of Claims, a statutory court of limited jurisdiction, has no power of judicial review of administrative action. Judicial review of administrative action may be obtained only in the circuit court, the Court of Appeals and this Court.” Greenfield Construction Co, Inc v Dep’t of State Highways, 402 Mich 172, 222; 261 NW2d 718 (1978), reh den 402 Mich 961 (1978). (Opinion of Levin, J.) (Footnotes omitted.)

The Court of Claims has exclusive jurisdiction over "all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its * * * agencies”. MCL 600.6419(1)(a); MSA 27A.6419(1)(a). The Court of Claims Act, however, is not to be construed so as to deprive circuit courts of jurisdiction over review of state agency determinations. MCL 600.6419(4); MSA 27A.6419(4).

Since the jurisdiction of the Court of Claims over claims against the state and its agencies is always exclusive, to hold that judicial review of a state agency’s decision can be sought in the Court of Claims would be to require all such appeals to be brought in that forum. This would directly contradict the plain intent of the Legislature that judicial review of state administrative agencies be available in the circuit court.

We hold that, after exhaustion of Civil Service Commission remedies and in the event of appeal from a final Civil Service Commission decision, jurisdiction over this action shall be in the circuit court. The entry of judgment for plaintiffs in the Court of Claims is vacated; this case is remanded to the Civil Service Commission. We do not retain jurisdiction.

No costs, a public question.

       The Court of Claims reserved judgment on whether the named plaintiffs could proceed as representatives of a class composed of all officers of the Michigan State Police similarly situated. We do not express an opinion as to this issue. We note, however, that our order of remand to the Civil Service Commission for exhaustion of administrative remedies will be adequately followed if one of the named plaintiffs exhausts those remedies. The reviewing court, if judicial review is sought, can then reach the merits of the class action issue if it is again raised in that forum.
      Nor do we express any opinion on the statute of limitations issue raised in the Court of Claims by defendants, since the Court of Claims reserved judgment on that issue.

       As originally worded this court rule required that appeals from the Civil Service Commission be filed in the circuit court. The change in language "involve[d] reorganization and style rather than substance”. 400 Mich 970-971 (1977).


author: V. J. Brennan, J. R. M. Maher, J.

text:
    NATIONAL CAR RENTAL v S & D LEASING, INC
    Docket No. 77-4666.
    Submitted February 6, 1979, at Lansing.
    Decided April 2, 1979.
    Leave to appeal applied for.
    National Car Rental engaged the services of Payco, a collection agency, to collect money allegedly due on an open account by S & D Leasing, Inc. Payco retained attorney Harry S. Cohen, who filed a complaint on behalf of plaintiff in district court seeking the money allegedly due. Defendant counterclaimed for breach of contract, seeking damages in the amount of $500,000. Because of the amount in question, the case was removed to circuit court. Cohen advised Payco of the counterclaim, and informed them of his belief that defense of the counterclaim was not within the scope of his representation of plaintiff. Cohen requested that Payco inform plaintiff of his position. A default and default judgment in the amount of $388,838.75, plus interest, was entered against plaintiff, Shiawassee Circuit Court, Peter J. Marutiak, J. Plaintiff moved to set aside the default and default judgment upon learning of the default judgment. Judge Marutiak found that plaintiff had notice of the counterclaim prior to default and granted the motion to set aside the default judgment, but denied the motion to set aside the default. Plaintiff appeals by leave granted. Held:

    1. The trial court was clearly erroneous in finding that plaintiff had actual notice of the counterclaim.
    2. Plaintiff’s lack of actual notice of the counterclaim is sufficient to set aside the default and judgment, since the record indicates the existence of a meritorious defense and the absence of prejudice to third parties.
    Reversed and remanded.
    R. M. Maher, J., dissented. He would hold that the trial court was not clearly erroneous in finding that plaintiff had actual notice of the counterclaim prior to default. He would also hold that notice of the counterclaim by the collection agency engaged by plaintiff constituted notice of the counterclaim by plaintiff. He would affirm.

      References for Points in Headnotes

       46 Am Jur 2d, Judgments §§ 740, 757.

       20 Am Jur 2d, Counterclaim, Recoupment, and Setoff §§ 145, 160.

       46 Am Jur 2d, Judgments § 740.

       20 Am Jur 2d, Counterclaim Recoupment, and Setoff §§ 145, 148, 149.

       20 Am Jur 2d, Counterclaim, Recoupment, and Setoff § 145.

      Opinion of the Court
    1. Judgment — Default Judgment — Setting Aside Default — Court Rules.
    Setting aside a default entered by reason of the failure of plaintiff to answer a counterclaim requires a showing that there was: (1) lack of actual notice to plaintiff of the counterclaim, (2) a meritorious defense to the counterclaim, and (3) the absence of prejudice to the rights of third parties (GCR 1963, 528.2).
    2. Appeal and Error — Findings of Fact — Notice — Court Rules.
    The trial court was clearly erroneous in finding that a plaintiff had actual notice of a counterclaim where there was a sparsity of evidence of plaintiff’s actual notice and the court relied upon the imputed knowledge of such notice through plaintiff’s attorney (GCR 1963, 517.1).
    3. Judgment — Default Judgement — Setting Aside Default — Notice — Court Rules.
    Plaintiff’s lack of actual notice of a counterclaim is sufficient to set aside a default and default judgment on the counterclaim where the record indicates the existence of a meritorious defense and there was no showing that the rights of third parties were prejudiced (GCR 1963, 528.2).
    4. Notice — Counterclaim — Pleading — Default — Setting Aside Default — Good Cause — Court Rules.
    Lack of actual notice of a counterclaim would establish the "good cause shown” necessary to excuse the failure to answer the counterclaim which resulted in a default (GCR 1963, 520.4).
    Dissent by R. M. Maher, J.
    5. Appeal and Error — Findings of Fact — Notice — Pleading — Counterclaim.

      A trial court’s finding of fact that a plaintiff received notice of a counterclaim prior to the entry of default should not be set aside where the finding of fact was not clearly erroneous.

      6. Notice — Counterclaim — Agency.

      Notice to a collection agency of a counterclaim to a suit brought by the agency in a plaintiff’s name and upon plaintiff’s authorization constitutes notice to the plaintiff of the counterclaim.

      Bodman, Longley & Dahling (by Walter O. Koch and Andrew J. Broder), for plaintiff.
    Before: Bashara, P.J., and V. J. Brennan and R. M. Maher, JJ.
   V. J. Brennan, J.

Plaintiff, National Car Rental, appeals by leave the lower court’s order denying its motion to set aside an entry of default relating to the counterclaim filed by defendant, S & D Leasing.

In December, 1974, National filed a complaint in a district court in Shiawassee County against S & D Leasing to collect money allegedly due on an open account. National, a Minnesota corporation, had engaged the service of Payco, a collection agency, which in turn retained attorney Harry S. Cohen, who filed the original complaint. S & D counterclaimed, seeking damages for breach of contract in the amount of $500,000. Because of the amount in question, the case was removed to the circuit court.

According to the record, between April, 1975, and October, 1976, attorney Cohen wrote several letters to Payco advising them of the status of the litigation and of his belief that defense of a counterclaim was not within the scope of his representation of National. He requested that Payco inform National of his position, and advised in one of the letters that National might face a default. Cohen wrote to the circuit court in October, 1975, informing it of his position in the proceedings. Cohen maintained that he had not entered an appearance in the circuit court litigation and that he would try to contact National for the purpose of having an appearance made.

On October 4, 1976, an entry of default was entered against National. On that same date, the circuit court entered a default judgment in favor of S & D in the amount of $388,838.75, plus interest. In April, 1977, the circuit court clerk issued a writ of garnishment against the Bank of the Commonwealth in an effort to obtain funds owed to National. National maintains that this writ was its first notice of the default judgment.

National then filed a motion seeking to set aside the default judgment. In July, 1977, National’s motion to set aside the default judgment was granted, however the lower court refused to set aside the entry of default. This Court granted National’s application for leave to appeal on March 29, 1978.

On appeal the plaintiff has devoted the great majority of its brief to the "good cause shown” requirement of GCR 1963, 520.4 in setting aside a default. Plaintiff argues that attorney Cohen abandoned plaintiff’s representation, which, in and of itself, is sufficient good cause to set aside the default. Due to the interplay of the court rules and the particular facts and circumstances of this case, we need not address this aspect of plaintiff’s argument.

As stated above, plaintiff initiated the suit with attorney Cohen as its legal representative. Defendant brought its counterclaim. Pursuant to GCR 1963, 107.2(1), service upon plaintiff was performed by delivery to plaintiff’s attorney Cohen. Plaintiff was not actually served with process, since personal jurisdiction had been obtained by its initial filing of the suit. In addition, although attorney Cohen notified Payco of the counterclaim, he never actually notified plaintiff of the claim filed against it. The lower court improperly based its decision on GCR 1963, 520.4 and ruled that attorney Cohen’s neglect, being attributable to plaintiff, was not sufficient good cause to set aside the default.

Proper disposition of plaintiff’s motion to set aside the default judgment should have been made under GCR 1963, 528.2, which provides:

"Defendant Not Personally Notified. Any defendant over whom personal jurisdiction was necessary and acquired but who did not in fact have knowledge of the pendency of the action may, at any time within 1 year after final judgment, enter his appearance, and if he shows reason justifying relief from the judgment and innocent third persons will not be prejudiced, the court may relieve him from the judgment, order, or proceedings as to which personal jurisdiction was necessary, on payment of such costs thereon or such creditors as the court deems just.”

In 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 180, the above-quoted rule is explained as follows:

"The intent of the rule is that failure to receive actual notice is itself sufficient ground for relief of default judgment, if the defendant can show that he has a meritorious defense and if the rights of innocent third parties will not be prejudiced.” (Emphasis added.)

Accordingly, the requisite showing affording relief under the rule is (1) lack of actual notice, (2) meritorious defense, and (3) rights of third parties will not be prejudiced. In the present case there has been no showing that third-party rights would be prejudiced by setting aside the entry of default and judgment. Further, the affidavits filed below by plaintiff indicate the existence of a meritorious defense. The only fact we need address is whether plaintiff was somehow actually notified of the counterclaim.

The lower court found, in reliance on the deposition of Mr. Valentino, that, as a matter of fact, plaintiff was actually notified. A trial court’s finding of fact will not be set aside unless it is clearly erroneous. GCR 1963, 517.1. A finding is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). This standard involves both a consideration of whether there was sufficient evidence and whether that evidence supports the trial court’s finding.

Upon review of the Valentino deposition, the only indication of actual notice to plaintiff is a statement by the deponent that in August, 1976, he contacted by telephone an employee of plaintiff, Mrs. Ervasti, and stated that a counter-suit had been filed. He also stated that he mailed to Mrs. Ervasti "some papers regarding a counter-suit with S & D”. However, on Payco’s file jacket, there was no indication that any transmittal letter of any other "papers” was in fact mailed; and the notation as to the call in no way indicated the subject of any discussion. In Mrs. Ervasti’s affidavit filed below she stated that she could not recall a telephone conversation with Valentino, and that she did not receive any correspondence relating to the counterclaim. Ervasti’s supervisor, Mr. Haber-man, stated in his affidavit filed below that he did not receive any correspondence relating to a counterclaim and that he had no knowledge of its receipt by anyone under his supervision.

Taking into account the sparsity of evidence on the question of plaintiffs actual notice, together with the lower court’s emphasis on plaintiffs imputed knowledge through attorney Cohen, we are left with the firm conviction that a mistake has been made. Upon careful review we find that plaintiff had no actual notice of the counterclaim.

Under GCR 1963, 528.2, as stated above, lack of actual notice is sufficient to set aside the default and judgment in the case at bar. Even if we were to apply the "good cause shown” standard of GCR 1963, 520.4, we would conclude that lack of actual notice was "a reasonable excuse for failure to comply with the requirements which resulted in the default”. Okros v Myslakowski, 67 Mich App 397; 241 NW2d 223 (1976).

The lower court’s order is reversed, the default is set aside and the cause is remanded for proceedings consistent with this opinion.

Costs to plaintiff.

Bashara, P.J., concurred.

R. M. Maher, J.

(dissenting). I respectfully dissent. Unlike my colleagues, I am not convinced that the trial court’s finding that Payco notified National of the counterclaim is clearly erroneous.

In addition, I am of the opinion that notice to Payco was in fact notice to National. It is well established that notice to an agent acting within the scope of his authority is notice to the principal as well:

"It is a general rule that notice of a fact acquired by an agent while transacting the business of his principal is notice to the latter and this rule applies to banks and other corporations as well as to individuals. It is the duty of the agent to communicate to the principal information thus acquired which would affect the rights of the former and the presumption is the agent has performed his duty in this behalf. If he has not, still the principal should be charged with the knowledge of his agent because he selects him and confides to him the business in hand.” Schram v Burt, 111 F2d 557, 564 (CA 6, 1940).

Accord, Chelsea Associates v Rapanos, 527 F2d 1266 (CA 6, 1975), Westinghouse Electric & Manufacturing Co v Hubert, 175 Mich 568; 141 NW 600 (1913), Thornton v City of Flint, 39 Mich App 260; 197 NW2d 485 (1972).

National engaged Payco as its agent for collection of S & D Leasing’s debt to National, authorizing it to hire an attorney to bring an action in National’s name, if necessary to collect the debt. It was while acting within the scope of this authority that Payco learned that a counterclaim had been filed, surely a not unexpected development in a lawsuit. Upon receiving this information, Payco was under a duty to convey it to National. All third parties, including the subsequent attorney engaged by Payco on behalf of National, were justified in assuming that Payco would carry out that duty. That Payco breached its duty (if in fact it did) is irrelevant, and National is charged with notice of the counterclaim.

I would affirm the^trial court.

       A plaintiff is within the ambit of this rule when a counterclaim is filed, since such action places a plaintiff in the position of a defendant to that counterclaim.

       Mr. Valentino was an employee of Payco in charge of the subject collection acount.


author: Bashara, P.J.

text:
    COMMUNITY SERVICE INSURANCE COMPANY v SHEARS
    Docket No. 78-256.
    Submitted February 7, 1979, at Lansing.
    Decided April 2, 1979.
    Defendant Rita Shears was the wife of defendant Richard A. Shears and mother of Robin Shears, who was killed when her father, Richard, backed his truck over her. Rita and Richard were subsequently divorced. Rita Shears then brought an action for herself and as special administratrix of the estate of Robin Shears against Richard for damages arising out of the accident. Plaintiff, Community Service Insurance Company, filed suit against Richard and Rita Shears for a judgment declaring that plaintiff has no liability or duty to defendants as a result of the accident. Plaintiff relied on a household exclusionary clause in the policy which excluded coverage for bodily injury to the named insured or members of his immediate family. The Genesee Circuit Court, Donald R. Freeman, J., granted a declaratory judgment for plaintiff. Defendant Rita Shears appeals. Held:

    A provision in an automobile liability policy which attempts to exclude coverage for bodily injury to the insured or his family is void as against public policy.
    Reversed.
    Insurance — Automobile Insurance — Household Exclusionary Clauses.
    A provision in an automobile liability policy which attempts to exclude coverage for bodily injury to the insured or his family is void as against public policy.
    References for Points in Headnote
    7 Am Jur 2d, Automobile Insurance §§ 41, 195.
    Construction and application of provision in liability policy limiting the amount of insurer’s liability to one person. 13 ALR3d 1228.

      Gault, Davison, Bowers & Hill, for plaintiff.

      Larry G. Sharp, for defendant Rita Shears.

      Before: Bashara, P.J., and V. J. Brennan and R. M. Maher, JJ.
   Bashara, P.J.

Defendant Rita Shears appeals from a declaratory judgment holding that a household exclusionary clause in the automobile insurance policy of defendant Richard Shears released the plaintiff insurer from any duty to defend an action brought against Richard Shears by appellant or to satisfy any judgment arising therefrom.

On September 3, 1973, Mr. Shears struck and killed his three-year-old daughter while backing his truck out of the driveway. Following a divorce, Rita Shears brought an action against her ex-husband in her own name and as special administratrix of the estate of her daughter for damages arising from the accident.

The household exclusionary clause in question states in pertinent part:

"Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay * * * because of * * * death * * * arising out of the ownership, maintenance or use of the automobile.
"This policy does not apply:
:(t) under Coverage A, to bodily injury to (1) the spouse or any parent, son or daughter of the insured, or (2) the named insured.”

The validity of similar household exclusionary clauses has been considered by numerous panels of this Court. In Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513; 194 NW2d 193 (1971), a split panel upheld an exclusionary clause barring a named insured from recovery. The named insured had been a passenger in his own car which was being permissibly operated by another person when an accident occurred. This same result was reached in State Farm Fire & Casualty Co v Peckham, 74 Mich App 551; 254 NW2d 575 (1977), wherein the Court based its decision on the Weisberg precedent.

However, other panels of this Court have declined to follow the Weisberg rationale and found such clauses to be void as against public policy. Gurwin v Alcodray, 77 Mich App 97; 257 NW2d 665 (1977), Allstate Ins Co v DeFrain, 81 Mich App 503; 265 NW2d 392 (1978), State Farm Mutual Automobile Ins Co v Traycik (After Remand), 86 Mich App 285; 272 NW2d 629 (1978).

The Michigan Supreme Court addressed the issue of household exclusionary clauses in the recently released case of State Farm Mutual Automobile Ins Co v Sivey, 404 Mich 51; 272 NW2d 555 (1978). The Court held that an exclusion of a named insured in an automobile insurance policy contravened public policy. The Court specifically rejected the Weisberg majority opinion and adopted Judge (now Justice) Levin’s dissent.

Plaintiff argues that the Sivey case is applicable only to accidents occurring prior to the amendment of the Motor Vehicle Accident Claims Act and those occurring since the no-fault legislation. We cannot accept this argument. The reference to the financial responsibility act, MCL 257.520(b)(2); MSA 9.2220(b)(2), in the Motor Vehicle Accident Claims Act, MCL 257.1102(d); MSA 9.2802(d), was replaced with a reference to MCL 500.3009(2); MSA 24.13009(2).

The 1971 amendment has not been interpreted as working a change in the state’s public policy as set forth in the former statute. The amendment allows only a very narrow exclusion of liability coverage when a vehicle is operated by a named person. The household exclusion seeks to avoid liability when certain persons are injured. The statutory exclusion is clearly inapplicable in such a situation. Citizens Mutual Ins Co v Central National Ins Co of Omaha, 65 Mich App 349, 352-354; 237 NW2d 322 (1975), Detroit Automobile Inter-Ins Exchange v Van Slyke, 82 Mich App 237; 266 NW2d 771 (1978).

The exclusionary clause in question is invalid. It is neither authorized by statute nor in harmony with the legislative purpose of comprehensive liability coverage as interpreted by the judiciary.

Reversed.

       A vigorous dissent was lodged in this case by Judge (now Justice) Levin.

       MCL 257.1102(d); MSA 9.2802(d), prior to amendment, provided:

        "(d) 'Uninsured motor vehicle’ means a motor vehicle as to which there is not in force a liability policy meeting the requirements of the motor vehicle responsibility law of this state, established pursuant to the provisions of chapter 5 of Act No. 300 of the Public Acts of 1949, as amended, being sections 257.501 to 257.532 of Compiled Laws of 1948, and which is not owned by a holder of self-insurance under this law.”
      MCL 257.520(b)(2); MSA 9.2220(b)(2) provides:
      "(b) Such owner’s policy of liability insurance:
      "(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: $20,000.00 because of bodily injury to or death of 1 person in any 1 accident and, subject to said limit for 1 person, $40,000.00 because of bodily injury to or death of 2 or more persons in any 1 accident, and $10,000.00 because of injury to or destruction of property of others in any 1 accident.”
      After the 1971 amendment, MCL 257.1102(d); MSA 9.2802(d) provided:
      "(d) 'Uninsured motor vehicle’ means a motor vehicle as to which there is not in force a liability policy meeting the requirements of section 3009 of Act 218 of the Public Acts of 1956, as added, being section 500.3009 of the Compiled Laws of 1948, and which is not owned by a holder of self-insurance as provided in section 531 of Act No. 300 of the Public Acts of 1949, as amended, being section 257. 531 of the Compiled Laws of 1948.”
      MCL 500.3009(1); MSA 24.13009(1) provides:
      "Sec. 3009. (1) An automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for property damage, bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall not be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless such liability coverage as is provided therein is subject to a limit, exclusive of interest and costs, of not less than $20,000.00 because of bodily injury to or death of 1 person in any one accident, and, subject to said limit for 1 person, to a limit of not less than $40,000.00 because of bodily injury to or death of 2 or more persons in any one accident, and to a limit of not less than $10,000.00 because of injury to or destruction of property of others in any accident.”


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

text:
    VAN ZANEN v KEYDEL
    Docket No. 78-634.
    Submitted January 5, 1979, at Detroit.
    Decided April 2, 1979.
    Reyer Van Zanen, Citizens for Realistic Priorities, Ray Township, and Macomb County Rotary Camp & Training Association, Inc., filed a complaint in several counts against Kurt R. Keydel, a commissioner of the Huron-Clinton Metropolitan Authority and each of the authority’s other commissioners and the authority itself to enjoin the defendants from proceeding with the development of a park which was to have been located in Ray Township, Macomb County. The Macomb Circuit Court, Edward J. Gallagher, J., dismissed the complaint. Plaintiffs appeal that portion of the trial court’s decision which held that the method of selection of the commissioners of the authority does not violate equal protection. Held:

    The selection of the commissioners, which is accomplished by the appointment by the county supervisors of one representative from each county and the appointment of two by the governor, without regard to the varying populations of the five constituent counties, does not violate equal protection. The functions of the authority are such that it is the type of governmental unit for which it is constitutionally permissible to appoint, rather than elect, officials, and, therefore, the doctrine of one person, one vote is not applicable.
    Affirmed.
    1. Constitutional Law — Elections — One Person, One Vote — Appointment of Officials.
    The doctrine of one person, one vote applies to units of state and local government which are composed of members elected by the voters; however, where the selection of some governmental officials by appointment is permissible, the one person-one vote doctrine does not apply.
    References for Points in Headnotes

       25 Am Jur 2d, Elections § 16.

       25 Am Jur 2d, Elections § 16.
    63 Am Jur 2d, Public Officers and Employees § 90.

      2. Constitutional Law — Equal Protection — Huron-Clinton Metropolitan Authority — Appointment of Officials.
    The process of selection of commissioners of the Huron-Clinton Metropolitan Authority, which is an appointive process rather than elective, does not violate the Equal Protection Clause of the Constitution; the one person-one vote doctrine does not apply, and the appointment of one commissioner from each of the five constituent counties, regardless of population, is permissible (US Const, Am XIV).

      LaBarge, Zatkoff & Dinning, P.C., for plaintiffs.

      Miller, Canfield, Paddock & Stone (by Gilbert E. Gove and Thomas P. Hustoles), for defendants.
    Before: N. J. Kaufman, P.J., and T. M. Burns and Bashara, JJ.
   N. J. Kaufman, P.J.

On November 26, 1973, plaintiffs filed a complaint to enjoin the defendants from planning, acquiring, developing and operating a proposed park to be known as "North Branch Metropolitan Park” and to be located in Ray Township. On January 30, 1978, the circuit court dismissed plaintiffs’ complaint. Plaintiffs appeal by right from that dismissal.

The sole issue on appeal is whether or not the metropolitan district act, MCL 119.51 et seq.; MSA 5.2148(1) et seq., violates the Equal Protection Clause of the United States Constitution by entitling each constituent county to appoint one Huron-Clinton Metropolitan Authority Commissioner regardless of the size of its population. We conclude that it does not.

The Huron-Clinton Metropolitan Authority (hereinafter HCMA) was established in 1940 for the purpose of planning, acquiring, developing and maintaining parks in southeastern Michigan. MCL 119.51; MSA 5.2148(1). It is comprised of Wayne, Washtenaw, Livingston, Oakland, and Macomb Counties. Each of these counties joined the HCMA after a majority of its voters approved the proposal. See MCL 119.51; MSA 5.2148(1), MCL 119.60; MSA 5.2148(10), and MCL 119.61; MSA 5.2148(11).

The seven-member governing board consists of two commissioners appointed by the governor and one commissioner elected by each participating county’s board of supervisors. MCL 119.54; MSA 5.2148(4), and MCL 119.61; MSA 5.2148(11).

The powers of the HCMA are specifically delineated by the act. MCL 119.53; MSA 5.2148(3) authorizes the HCMA to plan, acquire, and operate parks and to fix and collect fees for the use of the parks. MCL 119.57; MSA 5.2148(7) permits the levy and collection of taxes. MCL 119.58; MSA 5.2148(8) provides for the issuance of self-liquidating revenue bonds. Finally, MCL 119.59; MSA 5.2148(9) authorizes the acquisition of property through purchase, gift, devise or condemnation.

Both parties agree that representation on the governing board is not apportioned on the basis of population. Our question, then, is one of law.

In Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed 2d 506 (1964), the United States Supreme Court concluded that the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on the basis of population. But in Brouwer v Kent County Clerk, 377 Mich 616; 141 NW2d 98 (1966), our Supreme Court split evenly on the issue of w hether or not the Reynolds rule also applied to units of local government.

The United States Supreme Court initially faced the local government question in the Michigan case of Sailors v Board of Education of the County of Kent, 387 US 105; 87 S Ct 1549; 18 L Ed 2d 650 (1967). The County Board of Education was chosen by delegates from the local boards, but each local board sent only one delegate regardless of the number of people it represented. The county board had the authority to appoint a county school supervisor, prepare an annual budget and levy taxes, distribute delinquent taxes, furnish various educational services to member districts, employ teachers for special educational programs, establish a school for children in juvenile homes, and transfer areas from one school district to another. MCL 340.298a; MSA 15.3298(1), MCL 340.461; MSA 15.3461.

After reviewing Reynolds, supra, the Court concluded, 387 US at 108-111:

"We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by an election. Our cases have, in the main, dealt with elections for United States Senator or Congressman * * * or for state officers * * * or for state legislators. * * *
"* * * Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs.
"The Michigan system for selecting members of the county school board is basically appointive rather than elective. We need not decide at the present time whether a State may constitute a local legislative body through the appointive rather than the elective process. We reserve that question for other cases * * *. We do not have that question here, as' the County Board of Education performs essentially administrative functions; and while they are important, they are not legislative in the classical sense.
"Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation. At least as respects nonlegislative officers; a State can appoint local officials or elect them or combine the elective and appointive systems as was done here. If we assume arguendo that where a State provides for an election of a local official or agency — whether administrative, legislative, or judicial — the requirements of * * * Reynolds v Sims must be met, no question of that character is presented. For while there was an election here for the local school board, no constitutional complaint is raised respecting that election. Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of 'one man, one vote’ has no relevancy.” (Footnotes and citations omitted.) (Emphasis added.)

The emphasis in Sailors was on the distinction between legislative and administrative bodies, but in Avery v Midland County, Texas, 390 US 474; 88 S Ct 1114; 20 L Ed 2d 45 (1968), the Court offered an alternative test. Avery involved the five-member general governing body of a Texas county, the Commissioners Court, one member of which was elected at large and four members of which were elected from single-member districts of substantially unequal propulation. The Commissioners Court had the power to establish a courthouse and jail, appoint numerous minor officials, fill vacancies in county offices, let contracts in the name of the county, build roads and bridges, administer the county’s public welfare services, perform numerous duties in regard to elections, set the county tax rate, issue bonds, adopt the county budget, serve as a board of equalization for tax assessments, build and run a hospital, an airport, and libraries, fix county school district boundaries, establish a regional public housing authority, and determine the districts for election of its own members.

After noting that the Commissioners Court was charged with legislative, executive, administrative, and judicial tasks, the Supreme Court refused to categorize the body as administrative or legislative. the Court concluded, 390 US at 480-481 and 485-486:

"When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population. If the five senators representing a city in the state legislature may not be elected from districts ranging in size from 50,000 to 500,000, neither is it permissible to elect the members of the city council from those same districts. In either case, the votes of some residents have greater weight than those of others; in both cases the equal protection of the laws has been denied.
"This Court is aware of the immense pressures facing units of local government, and of the greatly varying problems with which they must deal. The Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems. Last Term, for example, the Court upheld a procedure for choosing a school board that placed the selection with school boards of component districts even though the component boards had equal votes and served unequal populations. Sailors v Board of Education, 387 US 105 [87 S Ct 1549; 18 L Ed 2d 650] (1967). The Court rested on the administrative nature of the area school board’s functions and the essentially appointive form of the scheme employed. In Dusch v Davis, 387 US 112 [87 S Ct 1554; 18 L Ed 2d 656] (1967), the Court permitted Virginia Beach to choose its legislative body by a scheme that included at-large voting for candidates, some of whom had to be residents of particular districts, even though the residence districts varied widely in population.
"The Sailors and Dusch cases demonstrate that the Constitution and this Court are not roadblocks in the path of innovation, experiment, and development among units of local government. We will not bar what Professor Wood has called 'the emergence of a new ideology and structure of public bodies, equipped with new capacities and motivations * * *.’ R. Wood, 1400 Governments, at 175 (1961). Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population. ” (Footnote omitted. Emphasis added.)

The Sailors administrative-legislative distinction was eventually discarded altogether in Hadley v Junior College District of Metropolitan Kansas City, 397 US 50; 90 S Ct 791; 25 L Ed 2d 45 (1970), which involved the popular election of the trustees of a junior college district. The Court concluded that the distinction was unmanageable because governmental activities "cannot be easily classified in the neat categories favored by civics texts”. 397 US at 55-56.

Hadley went on to state, 397 US at 56, 58:

<t* * * [A]s a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.
"* * * We have also held that where a State chooses to select members of an official body by appointment rather than election, and that choice does not itself offend the Constitution, the fact that each official does not 'represent’ the same number of people does not deny those people equal protection of the laws. Sailors v Board of Education, 387 US 105 [87 S Ct 1549; 18 L Ed 2d 650] (1967); cf. Fortson v Morris, 385 US 231 [87 S Ct 446; 17 L Ed 2d 330] (1966).”

In short, the one person-one vote doctrine applies to state and local government units which are composed of members elected by the voters. However, a state or local government may select some government officials by appointment. And where appointment is permissible, the one person-one vote doctrine does not apply. In determining whether or not a given government unit may be composed of appointees, the Supreme Court has abandoned the administrative-legislative test. Unfortunately, the Court has offered no alternative formulation of a rule by which we might determine which government officials may be selected by appointment and which may not. The most that can be said is that the more a local unit’s functions and powers parallel those of the board of education considered in Sailors, supra, the more likely it is that a state may constitutionally provide for appointment of government officials to that unit.

The selection process in the instant case is appointive rather than elective. Consequently, the dispositive issue is whether or not the powers and functions of the HCMA are sufficiently analogous to those exercised by the board of education in Sailors to render an appointive system constitutionál.

The powers of the HCMA and the board of education in Sailors have already been listed and we make the following observations: 1) Both entities are special purpose units, not general governmental units; 2) The general planning and management functions of the HCMA with respect to parks are similar to those of the county board of education with respect to schools; 3) The HCMA’s power to acquire the property of a county, city, village or township is subject to approval by a majority vote of the electors of such county, city, etc., MCL 119.53; 4) Both the HCMA and the county board of education were empowered to levy taxes, but the HCMA’s authority in this respect is expressly circumscribed, MCL 119.57; 5) While it appears that only the HCMA could issue bonds, its authority to do so is very limited, MCL 119.58; 6) While it appears that only the HCMA could condemn private property, the individual whose property is condemned is apparently entitled to a jury trial at which the HCMA must prove that it is necessary to make the contemplated improvement and that it is necessary to take the individual’s property for the improvement, and at which just compensation is fixed, MCL 119.59 and MCL 213.21 et seq.; MSA 8.11 et seq.

In sum, while the HCMA’s powers are somewhat more extensive than those of the county board of education, we conclude that the state may constitutionally provide for appointment of HCMA commissioners. Accordingly, the one person-one vote doctrine does not apply in this case.

Finally, we wish to point out that the voters of each member county voted to join the HCMA with full knowledge of the representation they would be afforded. And, while it does not appear that a county could unilaterally withdraw from the HCMA, a county could request the Legislature to amend the statute so as to increase its representation on the Board of Commissioners. See OAG, 1949-50, No. 1219, p 570 (May 31, 1950), and OAG, 1976, No. 4994, p 427 (April 23, 1976).

Affirmed.

       "* * * No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” US Const, Am XIV, § 1.

       The population of the five counties, based on the 1970 census as reported by the Elections Division of the Secretary of State, is as follows:
      Wayne 2,666,751
      Oakland 907,871
      Macomb 625,309
      Washtenaw 234,103
      Livingston 58,967.