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

text:
    PEOPLE v EDMONDS
    Docket No. 78-605.
    Submitted April 9, 1979, at Lansing.
    Decided October 16, 1979.
    Leave to appeal applied for.
    Defendant, Cleveland Edmonds, was convicted in the Lenawee Circuit Court, Kenneth B. Glaser, J., of delivery of heroin, of being a third-felony offender and a second-time violator of the controlled substances act. Using both sentence-augmentation statutes, the court sentenced defendant to 53 years and 4 months to 80 years. Defendant appeals alleging several errors. Held:

    1. It was not error for a trial court in a criminal case to deny discovery of tapes of drug transactions other than the transaction charged and occurring on other days; their production was unnecessary to the preparation of a defense and irrelevant to the interests of a fair trial.
    2. Failure to object prior to or during trial to alleged irregularities in a preliminary examination constitutes waiver of the right to raise the issue on appeal.
    3. The "same transaction” test for double jeopardy applies to offenses which are part of one criminal transaction, committed in a continuous time sequence and displaying a single intent and goal.
    4. Appellate review of an issue of entrapment is precluded where the defendant made' no effort to have the trial court pass on the issue.
    5. Matters which are not admissible on direct examination may be used to impeach a defendant even where the impeachment may require use of evidence of other crimes; thus, it was not error to allow a prosecutor to ask a codefendant if he had delivered heroin to an informant on specific dates in the presence of the defendant where the codefendant testified on direct examination that he had made no such deliveries in the presence of the defendant.

      References for Points in Headnotes
    [1] 23 Am Jur 2d, Depositions and Discovery §§ 157, 158, 307-324.
    [2, 4] 5 Am Jur 2d, Appeal and Error § 726.
    21 Am Jur 2d, Criminal Law §§ 219, 446.
    28 Am Jur 2d, Estoppel and Waiver §§ 157, 158, 167.
    [3] 21 Am Jur 2d, Criminal Law §§ 182, 183, 188, 189.
    [5] 81 Am Jur 2d, Witnesses §§ 478-483.
    [6] 39 Am Jur 2d, Habitual Criminals §§ 1, 30.

      6. The controlled substances act was enacted to regulate the control, manufacture, production, sale, possession and use of controlled substances, with penalties for violation specifically delineated, and, as a specific and comprehensive measure, its sentence-augmentation provision controls over the general habitual offender statute. It was error to augment defendant’s sentences by use of both statutes.
    Affirmed and sentence modified.
    1. Criminal Law — Discovery.
    It was not error for a trial court in a criminal case to deny discovery of tapes of drug transactions other than the transaction charged and occurring on other days; their production was unnecessary to the preparation of a defense and irrelevant to the interests of a fair trial.
    2. Criminal Law — Preliminary Examination — Preserving Question — Waiver of Objection — Appeal and Error.
    Failure to object prior to or during trial to alleged irregularities in a preliminary examination constitutes waiver of the right to raise the issue on appeal.
    3. Criminal Law — Constitutional Law — Double Jeopardy — "Same Transaction” Test.
    The “same transaction” test for double jeopardy applies to offenses which are part of one criminal transaction, committed in a continuous time sequence and displaying a single intent and goal.
    4. Appeal and Error — Preserving Question — Criminal Law — Entrapment.
    Appellate review of an issue of entrapment is precluded where the defendant made no effort to have the trial court pass on the issue.
    5. Witnesses — Criminal Law — Cross-Examination — Impeachment.
    Matters which are not admissible on direct examination may be used to impeach a defendant even where the impeachment may require use of evidence of other crimes; thus, it was not error to allow a prosecutor to ask a codefendant if he had delivered heroin to an informant on specific dates in the presence of the defendant where the codefendant testified on direct examination that he had made no such deliveries in the presence of the defendant.
    6. Criminal Law — Statutes — Sentence Augmentation — Habitual Criminal.
    The controlled substances act Was enacted to regulate the control, manufacture, production, sale, possession and use of controlled substances, with penalties for violation specifically delineated, and, as a specific and comprehensive measure, its sentence-augmentation provision controls over the general habitual offender statute (MCL 335.348, 769.11; MSA 18.1070[48], 28.1083).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney, for the people.

      Wilcox & Robison, P.C. (by Charles A. Robison and John M. Sims), for defendant.
    Before: V. J. Brennan, P.J., and Bronson and Cynar, JJ.
   V. J. Brennan, P.J.

Defendant, Cleveland Edmonds, appeals as of right from his jury conviction of delivery of heroin, contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). Defendant was tried with Robert Elmore, who was also found guilty of delivery of heroin. Defendant was also found to be a third-felony offender, MCL 769.11; MSA 28.1083, and the trial court determined that defendant’s conviction for delivery of a controlled substance was his second conviction under the controlled substances act. MCL 335.348; MSA 18.1070(48). Using both sentence-augmentation statutes, the trial court sentenced defendant to prison for from 53 years and 4 months to 80 years.

On the morning of April 22, 1977, Philip "Pete” Cagle, a heroin addict and police informant, met Officer Ralph Fogarty, a deputy with the Jackson County Sheriffs Department, assigned to the narcotics unit. Cagle was fitted with a body transmitter and given $100 to purchase narcotics. Followed by Fogarty, Cagle drove to the apartments in the rear of the E & E Pool Parlor building in Adrian, Michigan. Cagle knocked on the door to codefendant Elmore’s apartment where he found Elmore and the defendant. Cagle told Elmore that he wanted to buy $100 worth of heroin. Elmore had only five $10 packets of heroin. Defendant said, "I have got the rest”. Defendant then gave Cagle 5 more packets and Cagle gave defendant the $100. Cagle then said, "Maybe I will be back to cop again * * * see you later”. Defendant said, "okay”. The packets were turned over to the authorities and this prosecution resulted.

Defendant raises several claims of error on appeal, the first being that the prosecutor deliberately suppressed and later destroyed tape recordings favorable to defendant. Before trial defendant brought a motion to produce which in pertinent part reads as follows:

"1. That in the Preliminary Examination Transcript and prior trial testimony, the informant testified that he was wired with a microphone and transmitter.
"2.. If any recordings of any type or any notes taken from any person receiving transmission of the same were taken, the defendant feels they would exculpate this defendant.
"3. That if the Prosecution or any officer or persons have possession of the aforesaid they should be ordered to produce the same for defendant’s inspection prior to the trial * * *.”

At the hearing on defendant’s motion the prosecutor attested to the fact that no tape recordings of any buys from this defendant existed. The court denied defendant’s motion to produce.

There is nothing in the record to indicate that there was a tape recording of the transaction that occurred on the morning of April 22, 1977. Tapes of conversations that took place on other days could have little bearing on the charged transaction. Their production was unnecessary to the preparation of the defense and irrelevant to the interests of a fair trial. People v Jessee Smith, 81 Mich App 190, 198; 265 NW2d 77 (1978).

Defendant next argues that the examining magistrate abused his discretion and denied defendant due process of law when he refused to grant defendant a continuance to allow defendant to procure retained counsel. However, defendant did not object before or during trial to the action of the examining magistrate, nor has he shown that he was prejudiced by the magistrate’s refusal to grant a continuance. Under these circumstances the magistrate’s action does not require reversal of defendant’s conviction. See People v Wilson, 397 Mich 76; 243 NW2d 257 (1976), People v Frederick Lester, 78 Mich App 21; 259 NW2d 370 (1977), People v Debreczeny, 74 Mich App 391; 253 NW2d 776 (1977).

Defendant next challenges the validity of this conviction as violative of the double jeopardy clause. The informant made two purchases of heroin from defendant, one in the morning and one in the afternoon of April 22, 1977. Defendant was previously convicted of the afternoon buy and argued below that application of the "same transaction” test prohibits bringing of charges based on the earlier buy. We disagree.

The "same transaction” test for double jeopardy as set forth in People v White, 390 Mich 245; 212 NW2d 222 (1973), applies to offenses which are part of one criminal transaction, committed in a continuous time sequence and displaying a single intent and goal. In the present case although the deliveries occurred on the same day between defendant and the same informant, the record does not show any connection between them such as an agreement after the first delivery to return for another sale. We find no double jeopardy violation. People v Cuellar, 76 Mich App 20; 255 NW2d 755 (1977), People v Martinez, 58 Mich App 693; 228 NW2d 523 (1975).

Defendant next argues that the trial court’s failure to sua sponte hold an entrapment hearing warrants reversal. Defendant made no effort to have the trial court pass on the issue of entrapment thus appellate review is precluded. See People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).

We next address defendant’s claim that it was improper for the prosecutor to confront the co-defendant with instances when he had delivered heroin in the presence of defendant. The codefendant, Robert Elmore, testified that he had never sold heroin to the informant but had stored it for him on many occasions. On direct examination Elmore testified that he thought that defendant Edmonds was an informant and that he, Elmore, had made no deliveries of heroin in the presence of defendant.

On cross-examination the prosecutor asked Elmore if he had delivered heroin on specified dates to the informant in the presence of defendant. Over defendant’s objection, the trial court ruled that the questions were proper to impeach the witness. We agree with this ruling. Matters which may not be admissible on direct examination may be used to impeach a defendant. People v Brown, 399 Mich 350, 356; 249 NW2d 693 (1976). The prosecutor was not bound to refrain from attacking Elmore’s statements, even though disproving the statement required evidence of other crimes that Elmore had committed.

We next consider the propriety of the lower court’s use of both the habitual offenders statute, MCL 769.11; MSA 28.1083, and § 48 of the controlled substances act, MCL 335.348; MSA 18.1070(48), to increase the maximum term for delivery of heroin from 20 to 80 years. We hold such sentence enhancement to be improper.

The controlled substances act was enacted to regulate the control, manufacture, production, sale, possession, use, etc., of controlled substances, with penalties for violation of the act specifically delineated. As such the act represents this state’s comprehensive policy toward the use of controlled substances. As a specific and comprehensive measure the act’s sentence-augmentation provision controls over the general habitual offender statute. Accordingly the sentence on a second or subsequent drug offense is under the purview of § 48 of the controlled substance act exclusively. In accordance with the above the defendant’s sentence is reduced to 26 years 8 months to 40 years.

The remaining claims of error relating to the alleged bolstering of the prosecution’s witness before attack and the alleged improper considerations at sentencing have not been preserved by proper objection below. See People v Moore, 395 Mich 643; 237 NW2d 464 (1976), People v Powell, 87 Mich App 192; 274 NW2d 16 (1978).

Defendant’s conviction is affirmed with sentence reduced in conformity with this opinion.

       It must be noted that application of the controlled substances act penalty augmentation is proper when the defendant is being sentenced on a drug conviction. If the defendant commits a nondrug felony after one or more drug convictions then the habitual offender act applies upon conviction of that nondrug felony. For other reasons which prohibit the use of the third-felony provision of the habitual offender act on the facts of this case see People v Covington, 70 Mich App 188; 245 NW2d 558 (1976).


source: Caselaw Access Project

author: D. C. Riley, J.

license: Public Domain

text:
    GOLEMBIOWSKI v MADISON HEIGHTS CIVIL SERVICE COMMISSION
    Docket No. 78-787.
    Submitted June 21, 1979, at Detroit.
    Decided October 16, 1979.
    Leave to appeal applied for.
    Mark G. Golembiowski, a policeman with the Madison Heights Police Department, was charged with six violations of department regulations, those being: (1) failure to turn in a traffic ticket; (2) being abusive and discourteous to a motorist; (3) refusing and neglecting to report to his assigned platoon; (4) failing to respond to a silent radio alarm and improperly ticketing a person at an adjacent structure; (5) reporting to a shift to which he was not assigned, disrupting the briefing sessions of that shift and leaving his assigned shift early to attend those briefing sessions; and (6) harassing a citizen, failing to make an arrest for intoxication following a traffic stop despite evidence of the same and failing to turn in a traffic accident report. The punishments imposed by the city were as follows: a written reprimand, a three-day suspension, a 15-day suspension, a 30rday suspension, discharge from employment, and discharge from employment, respectively. Following several hearings the City of Madison Heights Civil Service Commission reduced the written reprimand to an oral reprimand, reduced the 30-day suspension to a 21-day suspension, affirmed the three- and 15-day suspensions and affirmed the two discharges. Plaintiff appealed to circuit court. The Oakland Circuit Couft, Frederick C. Ziem, J., affirmed the actions of the Madison Heights Civil Service Commission. Plaintiff appeals. Held:

      References for Points In Headnotes
    [1] 7 Am Jur 2d, Attorney at Law §§ 93, 94, 154, 158.
    [2] 15A Am Jur 2d, Civil Service §§ 61, 68, 71, 88-90.
    70 Am Jur 2d, Sheriffs, Police, and Constables §§ 15, 17.
    [3] 15A Am Jur 2d, Civil Service § 79 et seq.

    [4] 2 Am Jur 2d, Administrative Law §§ 61, 300, 306, 307.
    [5] 15A Am Jur 2d, Civil Service §§ 61, 63.
    70 Am Jur 2d, Sheriffs, Police, and Constables § 12 et seq.

    [6] 2 Am Jur 2d, Administrative Law § 495.
    15 Am Jur 2d, Civil Service § 87.
    [7] 16A Am Jur 2d, Constitutional Law §§ 459-461.
    73 Am Jur 2d, Statutes § 346.

      1. The fact that the attorney representing the city before the Civil service commission was an associate of the attorney who acted as legal advisor to the commission did not deny plaintiff a fair hearing before the commission. The participation of counsel so associated will not result in the denial of a fair hearing in the absence of evidence of actual bias.
    2. The discharge of plaintiff by the city prior to a hearing before the civil service commission was improper. The statute only permits discharge of the officer by the civil service commission. While the city may not discharge a police officer pending the determination of the commission, the city may suspend the officer without pay for a period not exceeding 30 days pending the commission’s determination On the charges. Any period of suspension in excess of that determined to be appropriate by the commission will result in an award of back Pay.
    3. Even if there is evidence upon which a city civil service commission could rely to justify its determination, a court may act if the commission’s determination is contrary to law.
    4. Where a police department issues rules and regulations relative to departmental procedures, the department must not violate those rules and regulations.
    5. The rules and regulations of the Madison Heights Police Department appear to make no provision for escalated punishment Where there are multiple violations which fall within different classifications. If, upon remand, the circuit court determines that there is no provision within the police department’s rules providing for escalated punishment, the discharge of plaintiff Would be in violation of the police department’s own rules, and remand by the circuit court to the civil service commission for a determination of appropriate punishment would be required.
    6. Plaintiffs failure to raise before the civil service commission the question of whether a charge of conduct unbecoming an officer is constitutionally infirm for vagueness does not preclude consideration of that question by the circuit court on appeal, or by the Court of Appeals on further appeal, where that question was first raised in the appeal to circuit court. Since administrative agencies do not generally consider constitutional questions, raising that question before the civil service commission is unnecessary to preserve the right to a judicial determination of the question.
    7. The discharge of plaintiff for conduct unbecoming an officer is constitutionally infirm on the basis of vagueness. Smce neither the language of the departmental regulation itself nor any prior construction of the regulation provided a basis upon which plaintiff could have reasonably understood the conduct being proscribed, the language failed to give the c&nstitutionally required prior notice of the offense.
    Affirmed in part, reversed in part and remanded for further proceedings.
    1. Administrative Law — Attorney and Client — Fair Hearing — .Civil Service Commission.
    Representation of a city before a city civil service commission by an attorney who is an associate of an attorney who is legal advisor to the civil service commission does not, in the absence of evidence of actual bias, deny a fair hearing to a policeman against whom charges have been brought.
    2. Administrative Law — Labor Relations — Civil Service — Policemen — Discharge — Suspension — Hearing — Back Pay — Statutes.
    A policeman may not be discharged prior to a hearing before the city civil service commission; however, a policeman may be suspended without pay for a period not to exceed 30 days pending the determination of the civil service commission, with back pay being awarded for any period exceeding the period of suspension determined by the commission (MCL 38.513, 38.514; MSA 5.3363, 5.3364).
    3. Administrative Law — Review — Courts — Jurisdiction.
    A determination of a city civil service commission is subject to judicial review, even if there is evidence upon which the commission could rely to justify its finding, where the commission’s determination is contrary to law.
    4. Administrative Law — Rules and Regulations — Violation.
    A police department which issues rules and regulations governing its activity must abide by the procedures set forth in its rules and regulations.
    5. Administrative Law — Rules and Regulations — Violation — Discharge.
    Discharge of a policeman is improper where, although the policeman is found to have violated several departmental rules, none of the infractions of the departmental rules warrant discharge under those rules and the departmental rules make no provision for cumulative or escalated punishment for multiple infractions in different categories.
    6. Appeal and Error — Administrative Law — Constitutional Questions.
    Failure to raise a constitutional question before a city civil service commission does not preclude appellate review where the question is raised on appeal before the circuit court, since administrative agencies, as a general rule, do not consider constitutional questions.
    7. Constitutional Law — Vagueness — Conduct Unbecoming an Officer.
    The discharge of a policeman for "conduct unbecoming an officer” is constitutionally infirm on the basis of vagueness where the department rule under which the officer is being discharged does not by its language or by prior construction provide a basis by which the individual can reasonably understand the conduct being proscribed.

      Thomas W. Jakuc, for plaintiff.

      Harry H Young, City Attorney, and Larry H Sherman, Assistant City Attorney, for defendant.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   D. C. Riley, J.

On February 18, 1977, plaintiff Mark Golembiowski filed a claim of appeal with the Oakland County Circuit Court from a decision by the Madison Heights Civil Service Commission (hereinafter the Commission) which reduced a written reprimand to an oral reprimand, and which affirmed several suspensions of various lengths and plaintiff’s discharge from the Madison Heights Police Department. Pursuant to hearings held on January 21 and February 1, 1978, the circuit court affirmed. Following plaintiff’s appeal by right, we reverse in part and remand for additional proceedings.

The essential facts forming the basis of the litigation are not in dispute. Plaintiff was initially given a written reprimand on September 2, 1976, for his failure to turn in a traffic ticket, in violation of department regulations, at the end of his tour of duty on August 27, 1976. On September 16, 1976, plaintiff was presented with four separate letters signed by the acting city manager, each containing a stated charge (or charges) and including a specific measure of punishment for each. Briefly, they are as follow:

The first charge, for which plaintiff was suspended without pay for three working days, alleged that the officer was "abusive and discourteous” to a motorist. The second charge, which involved a 15-day suspension, alleged that plaintiff "deliberately refused and neglected” to report to his assigned platoon. The third charge, which carried a 30-day suspension, charged that plaintiff did not properly respond to a silent radio alarm and inspect a building for signs of a break in, but instead proceeded to an adjacent tent structure and arrested a person who was supposedly a uniformed private guard. Further, this charge accused plaintiff with improperly ticketing the father of the arrestee for failure to produce a driver’s license on request. The fourth charge of September 16, 1976, which contained notification of discharge, accused plaintiff with reporting, on four occasions, to shifts to which he was not assigned and disrupting the briefing sessions of those shifts. It also alleged that plaintiff abandoned his post on two occasions at least 15 minutes before the end of his tour of duty so that he could attend the above-mentioned briefing sessions. It further accused plaintiff with reporting for duty on his off day.

A fifth charge was filed on November 1, 1976. The charge dismissed plaintiff for harassment of the above-mentioned guard following a traffic stop on September 17, 1976, and with failure to arrest him despite evidence of intoxication. Also cited was plaintiff’s failure to turn in a "hit and run accident” traffic report.

After several hearings were held, the Commission reduced the written reprimand to an oral one. As to the other five charges, the 3- and 15-day suspensions were affirmed, the 30-day suspension was reduced to 21 days and both discharges were upheld.

Other facts are incorporated where necessary to a resolution of plaintiff’s five assignments of error.

Plaintiff first claims that he was denied a fair hearing because the attorney who prosecuted the case on behalf of the city was a member of the same law firm which included a partner who acted as legal advisor to the Commission. In Arnold v Crestwood Board of Education, 87 Mich App 625, 651-652; 277 NW2d 158 (1979), a number of public school teachers had been fired by defendant as a result of hearings held pursuant to § 6 of the public employment relations act, MCL 423.206; MSA 17.455(6). On appeal, the teachers charged that they were denied due process of law because counsel for the board both represented the board’s case and acted as an advisor to the board during the proceedings. The teachers urged the Court to adopt a very strict approach, as have the Pennsylvania courts. This Court, however, chose to do otherwise.

"We prefer to adhere to the Federal rule, admonishing district school boards that only if evidence of prejudice or bias clearly appears on the record will participation of counsel in the dual role constitute a violation of due process.” 87 Mich App at 652.

The present case concerns a situation even more attenuated than Arnold', where the board’s legal advisor also prosecuted the case before it. Here, the Commission’s legal advisor was only an associate of the attorney who prosecuted the suit. Moreover, plaintiff has not presented any evidence below or on appeal of actual bias. At the time of plaintiffs objection to the Commission, counsel indicated that there was no contact during or outside of the proceedings in regard to "this particular case or any cases before the Act 78 Board”.

Plaintiffs reliance on Crampton v Dep’t of State, 395 Mich 347; 235 NW2d 352 (1975), and City of Mishawaka v Stewart, 261 Ind 670; 310 NE2d 65 (1974), is misplaced, as those cases addressed factual settings where a party whose interests opposed plaintiffs actually sat as a member of the hearing tribunal. Those concerns are not present here.

Finally, in holding that, under Crestwood, the instant facts do not result in a constitutionally intolerable predicament, we note that plaintiffs argument was not raised before the Commission until after seven days of hearing and testimony on all but the final charges. Under these circumstances, we find no error.

Next, plaintiff decries the procedural basis of his dismissal, maintaining that under § 14 of 1935 PA 78 (Act 78) (fireman and policeman’s civil service act), MCL 38.514; MSA 5.3364, only the Commission can lawfully terminate an officer’s employment, and therefore, his discharge by the city manager prior to the Commission hearings was erroneous. Defendant counters that § 14 allows an officer to hold office only during good behavior and efficient service and that, while the statute mandates review of any discharge, this may occur after the officer’s discharge by the city.

In pertinent part, § 13 of Act 78 states that in cases of reductions, layoffs or suspensions, an employee or subordinate shall be provided a copy of reasons and shall be entitled to a hearing before the Commission as provided in § 14. In addition:

"Nothing in this act contained shall limit the power of an appointing officer to suspend without pay, for purposes of discipline, an employee or subordinate for a reasonable period, not exceeding 30 days: Provided, however, That successive suspensions shall not be allowed, and after such suspension, employees shall be entitled to a hearing as provided for in this section and in section 14”.

Section 14 mandates that:

"The tenure of every one holding an office, place, position or employment under the provisions of this act shall be only during good behavior and efficient service; and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office: Provided, however, No member of any fire or police department within the terms of this act shall be removed, discharged, reduced in rank or pay, suspended or otherwise punished except for cause, and in no event until he shall have been furnished with a written statement of the charges and the reasons for such actions, * * * If the person sought to be removed or reduced shall demand it, the civil service commission shall grant him a public hearing, which hearing shall be held within a period of 10 days from the filing of the charges in writing and a written answer thereto. Pending the period between the making of the charges as a basis for removal and the decision thereon by the commission the member shall remain in office. * * * In the event that the civil service commission fails to justify the action of the removing officer then the person sought to be removed shall be reinstated with full pay for the entire period during which he may have been prevented from performing his usual employment, * * * In the event that the civil service commission shall sustain the action of the removing officer, the person removed shall have an immediate right of appeal to the circuit court”.

Section 13 permits suspension, without pay, of an officer "for a reasonable period, not exceeding 30 days”. However, successive suspensions are impermissible. Furthermore, the § 14 hearing occurs after suspension.

Section 14 outlines the basis for either the suspension or discharge of an officer. Where a discharge is involved, it permits a hearing before the civil service commission if requested by the "person sought to be removed”. This language would indicate that the Legislature did not intend for the officer to be discharged before the Commission hearing. This conclusion is supported by the sentence immediately following: "Pending the period between the making of the charges as a basis for removal and the decision thereon by the commission, the member shall remain in office. ” (Emphasis supplied.) It goes on to say that "[i]n the event that the civil service commission fails to justify the action of the removing officer then the person sought to be removed shall be reinstated with full pay for the entire period during which he may have been prevented from performing his usual employment”. (Emphasis supplied.) The emphasized language is significant especially in light of the Legislature’s designation of the officer charged with misconduct as a "person removed” only after the civil service commission has sustained the action of the removing officer. Nor is the language concerning reinstatement "with full pay for the entire period during which he may have been prevented from performing his usual employment” necessarily to the contrary. Since § 14 applies to suspension as well as discharge hearings, this language merely provides for the possibility that the officer was suspended prior to the hearing. As will be recalled, § 13 specifically permits suspension prior to a civil service hearing. Obviously, if the commission found the suspension to be unwarranted, then the officer would be reinstated with full pay.

This interpretation of an officer’s right to remain in office until discharged by a decision of the Commission was sustained in Core v Traverse City, 89 Mich App 492, 501-503; 280 NW2d 569 (1979). See also Solomon v Highland Park Civil Service Comm, 47 Mich App 536, 541; 209 NW2d 698 (1973).

In the case at bar, it would appear that from the memorandums of September 16 and November 1, 1976, plaintiff was in effect discharged as of those dates, i.e., no longer employed or paid by defendant. While it is true that defendant could suspend the plaintiff pursuant to § 13, that power is restricted in the following ways: (1) successive suspensions are not permitted and (2) no suspension can exceed 30 days. Plaintiff was given three separate suspensions on the. same day; one of the 3 days, another of 15 and the last for 30 days. If the suspensions were not concurrent, two of them must be disallowed. This would leave the 30-day suspension which the Commission reduced to 21 days. At the end of the 21-day period, plaintiff should have been reinstated pending the Commission hearing. Hence, plaintiff was improperly denied reinstatement and departmental salary from approximately October 8, 1976. A remand to the circuit court is necessary to determine when, in fact, plaintiff was discharged, whether the punishments were concurrent, and when the 21-day suspension would have ended. Payment should be made at plaintiffs regular salary for the interim between the conclusion of the 21-day period and the date of the Commission’s final order.

The second (15-day suspension) and the fourth (first discharge) charges against plaintiff concerned a disputed transfer of plaintiff by defendant from the midnight to afternoon shift. Plaintiff contended before the court below that the police department neglected to comply with its own regulations regarding the issuance of personnel orders, reasoning that he could not be disciplined for failure to obey an invalid transfer. The court ruled for defendant, basing its decision on Hunn v Madison Heights, 60 Mich App 326; 230 NW2d 414 (1975), and concluding that its review of the matter was limited to a determination whether "there is evidence upon which the Madison Heights Civil Service Commission could rely upon which would justify its finding”.

Despite this general rule, it is also clear that the Commission’s decision may not be contrary to law. Hunn, supra at 335. A police order, PR 2.01, was issued on January 1, 1976, by the Madison Heights police chief and stated in pertinent part:

"II. AUTHORITY TO ISSUE:
"A. All department-wide publication shall be issued only on the authority of the CHIEF OF POLICE. General, Special, Personnel Orders; Procedures, and Policies shall bear the authority 'By order of the Chief of Police’ unless signed by him. Only the Chief of Police may issue or sign General, Special Orders; Procedures and Policies, however, Division Commanders specifically designated by the Chief of Police may sign other Department-wide publications.”

Defendant asserts that the second sentence authorizes division commanders to promulgate personnel orders. That authority is apparently modified by the requirement that "Personnel Orders * * * shall bear the authority 'by Order of the Chief of Police’ unless signed by him.” Hence, while division commanders may issue personnel orders, it would seem they may do so only by order of the police chief. An examination of the transfer order herein issued shows that it lacked that authorization.

Where an agency issues rules and regulations to govern its activity, it may not violate them. Brown v Dep’t of State Police, 392 Mich 811 (1974). See Peterson v Dep’t of Natural Resources, 392 Mich 68, 75-76; 219 NW2d 34 (1974). Thus, plaintiff’s contention above may not be said to lack merit. Since the lower court failed to address whether, in fact, department regulations were ever violated, the issue must be remanded. On remand, the court should ascertain the specific departmental policy regarding personnel orders and whether the disputed transfer order complied with them. A negative finding would necessitate reversal of the Commission as to the relevant portions of charges two and four.

Plaintiff further claims that the police department’s failure to follow additional internal regulations concerning progressive levels of discipline resulted in excessive and unjustified punishment. Again, the circuit court’s erroneous supposition that it lacked authority to address the issue compels a remand for additional proceedings.

Section IIA of a police order, PR 12.01, issued January 1, 1976, described procedures concerning disciplinary action as follows:

"II. PROCEDURE
"A. The degree of disciplinary action will depend on the offense, mitigating circumstances surrounding the offense, and prior record. Final disposition will result in one or more of the following:
"1. Oral reprimand 2. Written reprimand
3. Suspension up to 30 days
a. First offense 3 days
b. Second " 10 days
c. Third " 30 days
4. Demotion
5. Removal from service”

Procedures relating to suspensions which cannot be corrected by oral or written reprimands involve, inter alia, submission of the violations to the division commander, chief of police, and city administrator who "shall” review the charges and reports and conduct an interview with the officer involved.

It is not clear that defendant adhered to this procedure. For example, plaintiff insists that he was never interviewed by his superiors, including the chief of police and city manager. Defendant does not deny this assertion.

Section IV of that same order establishes progressive penalties for specific disciplinary infractions, and opens with the following explanatory paragraph:

"To provide some guidance to members of this department as to what can be expected for the violation of rules, procedures and orders, the following list of possible offenses are given along with the corrective discipline that will be imposed.”

Insofar as they are relevant, the specific offenses and their penalties are:

"Insubordination (i.e., 'The willful countermand of an order issued by a superior officer to a subordinate or any disrespectful, insolent, or abusive language or behavior directed toward a superior’)
"First offense — First suspension
Second offense — Second suspension
Third offense — Third suspension
Fourth offense — Discharge”
"Dereliction of duty (i.e., 'The execution of assignments and/or delegated duties improperly, inaccurately, or negligently’)
"First offense — Written reprimand
Second offense — . First suspension
Third offense — Second suspension
Fourth offense — Third suspension”
"Conduct unbecoming a police officer
"First offense — First suspension
Second offense — Second suspension
Third offense — Third suspension
Fourth offense — Discharge”
"Failure to properly follow arrest, search, and reporting procedures:
"First offense Oral
Second offense Written
Third offense First suspension
Fourth offense Second suspension”

Plaintiff’s written reprimand for failure to return a traffic ticket was subsequently reduced to an oral reprimand by the Commission. This appears to correspond to failure to properly follow arrest, search and reporting procedures. The first charge of September 16, 1976 (abusive and discourteous treatment of a motorist) resulted in a 3-day suspension. It appears to correspond to the category for conduct unbecoming an officer. The penalty for the first offense is a 3-day suspension. The second charge (deliberate refusal and neglect to report to his assigned platoon), which resulted in 15 days suspension, would seem to be an act of insubordination. As it was apparently plaintiff’s first charge on that basis, the appropriate penalty was a first suspension. The third charge (neglect of duty, failure to properly inspect a building and ticketing an individual who failed to produce a driver’s license while in police headquarters) resulted in 30 days suspension, later reduced to 21 days. However, as a first offense under dereliction of duty, plaintiff was entitled only to a written reprimand. The fourth charge (improperly reporting to a shift to which he was not assigned on at least four occasions) resulted in discharge. This could have been found to be his second offense of insubordination (requiring a second suspension), or a second offense of dereliction of duty (requiring a first suspension), or his second offense of conduct unbecoming an officer (requiring a second suspension). Finally, the fifth charge of November 1, 1976 (harassment of a civilian) produced a second discharge. As his third offense of conduct unbecoming an officer (as characterized by the November 1, 1976, letter) plaintiff was entitled only to his second or third suspension. Thus, it appears that the department did not follow its own procedures with regard to at least one of the suspensions and both of the discharges.

Defendant argues that the following language contained in the same order relied upon by plaintiff permitted commanding officers to relieve officers for insubordination.

"Commanding Officers or supervisors have the authority to relieve officers under their command for the following reasons:
"5. Insubordination.”

It is not clear that the power to relieve officers is equivalent, on the face of it, to discharge. It could also mean suspension. And even assuming, arguendo, it is equivalent to discharge, it would be reconcilable with the penalty specified under insubordination where it was the officer’s fourth offense, not as here, his second.

The circuit court did not consider this matter, as it felt it was without authority. Therefore, a re-' mand on this basis is also mandated. In doing so, we do not mean to suggest that a police department may not establish a horizontal, transcategorical procedure of disciplinary punishment based upon improper conduct (according to either numerical or subject matter criteria) despite a patrolman’s failure to accumulate the most serious punishment (discharge) for a particular classification. Clearly, it could have been accomplished in the present case. Absent authority to do so, however, in the cited rules or other regulations, the imposition of such escalated punishment would be in violation of the defendant’s own policy. If, on remand, it be so determined by the court, it should, in turn, remand the case to the Commission for more appropriate punishment. See Brown, supra, Konyha v Mount Clemens Civil Service Comm, 393 Mich 422; 224 NW2d 833 (1975).

Finally, plaintiff argues that the charge of "conduct unbecoming an officer” as contained in the November 1, 1976, discharge letter, is unconstitutionally vague. The trial judge, having examined the discharge letter, found for the defendant because the letter "sets forth, with sufficient exactness, the particular acts of the officer that the City claims precipitated the City Manager’s actions”.

A review of the record discloses that plaintiff raised the question before the circuit court but did not argue the same to the Commission. As a general rule, administrative boards or commissions do not consider constitutional questions. Dation v Ford Motor Co, 314 Mich 152, 159; 22 NW2d 252 (1946), and cases cited therein. Thus, contrary to defendant’s advocation, plaintiffs omission did not serve to preclude his claim for appellate review. See also Falk v Civil Service Comm of Macomb County, 57 Mich App 134, 137-138; 225 NW2d 713 (1974), where plaintiffs allegation was not preserved due to the failure to raise it both before the Commission and the circuit court.

With regard to the lower court’s justification upholding the dismissal, we would note that the vagueness doctrine relates to the adequacy of notice regarding the type of conduct proscribed antecedent the occurrence in issue, rather than, as in this instance, the specificity or clarity of the after-the-fact reasons underlying the imposition of disciplinary punishment.

In Sponick v Detroit Police Dep’t, 49 Mich App 162, 174-175; 211 NW2d 674 (1973), plaintiff was found to have violated a departmental rule of conduct similar to the one in the case at bar. The Court found the rule to be unconstitutionally vague based on Avrech v Secretary of the Navy, 155 US App DC 352, 355-356; 477 F2d 1237 (1973), which held that Article 134 of the Uniform Code of Military Justice, 10 USCA 934, imposing criminal sanctions for "disorders and neglects” and "conduct” prejudicing or discrediting the armed forces, was invalid because it "gives no fair warning of the conduct it proscribes and fails to provide any ascertainable standard of guilt to circumscribe the discretion of the enforcing authorities”. 49 Mich App at 175.

The same issue was faced in Rinaldi v Livonia, 69 Mich App 58; 244 NW2d 609 (1976). There, a police officer who had fled the scene of an accident while off duty was charged with "conduct unbecoming an officer”. The Court noted that the constitutional underpinnings of Avrech and Sponick, supra, had been substantially removed by the opinion in Parker v Levy, 417 US 733; 94 S Ct 2547; 41 L Ed 2d 439 (1974), which upheld the court martial of an army physician for "conduct unbecoming an officer and gentleman”. The Rinaldi panel found significant Levy’s emphasis of three characteristics pertinent to that case in rejecting the vagueness challenge:

"(1) Prior construction of the regulation narrowed its scope and supplied 'considerable specificity by way of examples of the conduct’. 417 US 754; 94 S Ct 2561; 41 L Ed 2d 456. (2) The regulations 'by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain’. 417 US 755-756; 94 S Ct 2561; 41 L Ed 2d 457. (3) Because of the 'reasons which differentiate military society from civilian society, * * * Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the later’. 417 US 756; 94 S Ct 2561-2562; 41 L Ed 2d 458.” 69 Mich App at 66.

Of the three, Rinaldi determined the second to be clearly present in the case before it, and further stated that, as in the military, a police force may require a more stringent standard of conduct than that permissible in the civilian sphere. 69 Mich App at 66-67. In so holding, the Court specifically limited its ruling to the circumstances before it, stating that "[w]e make no comment on future factual situations; we hold only that the present plaintiffs conduct was clearly conduct unbecoming an officer”. 69 Mich App at 67.

In the present case, there is no indication of previous construction of the regulation. In addition, we are not constrained to say that it applies without question to this type of behavior. The incident in question involved the stopping of a motorist with an intoxicated companion, and argument with one of the vehicle’s occupants regarding a previous encounter with the officer, the emptying of beer on the pavement at plaintiffs order and a determination that the driver of the automobile was not intoxicated. Such a situation would require a sizable degree of discretion on the part of the police officer. Moreover, it would not appear that plaintiff could have known at the time that a judgmental mistake on his part would constitute conduct unbecoming an officer.

Nor do we find Levy’s third criteria applicable. As a quasi-military organization, it is undoubtedly true that police departments may exact a more elevated standard of conduct from their officers. Yet the rules effecting such a standard must nevertheless clearly delineate what is forbidden, otherwise, they fail their stated purpose and goal. As the Supreme Court explained, this latter characteristic requires "that criminal responsibility should not attach where one could not reasonably understand that his conduct is proscribed”. Levy, supra at 417 US 757; 94 S Ct 2562; 41 L Ed 2d 458. Consistent therewith, on these facts, plaintiff’s second discharge based on conduct unbecoming an officer is dismissed; since the rule as applied to the cited conduct lacks the requisite prior notice and, thus, is constitutionally infirm.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. No costs, neither party having prevailed in full.

       MCL 38.514; MSA 5.3364.

       See English v North East Board of Education, 22 Pa Comm 240; 348 A2d 494 (1975), Horn v Twp of Hilltown, 461 Pa 745; 337 A2d 858 (1975).

       "A police officer, intent on retaining his position on the force, can expect that he will be held to a higher standard of conduct regarding obedience to the laws and ordinances of this state than would a common civilian. The police officer has greater familiarity with the obligations of a motorist to remain at the scene of the accident. He must contemplate loss of employment for the conduct evidenced here.” Rinaldi v Livonia, 69 Mich App 58, 67; 244 NW2d 609 (1976).


author: M. F. Cavanagh, J.

text:
    COLOMBINI v DEPARTMENT OF SOCIAL SERVICES
    Docket No. 78-844.
    Submitted February 15, 1979, at Lansing.
    Decided October 16, 1979.
    Theresa Colombini and others brought an action in November, 1977, in Ingham Circuit Court, to enjoin the Department of Social Services (DSS) from operating its client reporting system (CRS) in 11 Michigan counties, alleging that § 59 of the annual DSS appropriations act (1977 PA 105) terminated the CRS program after December 1, 1977, absent proof of cost-effectiveness and approval from the Senate and House appropriations committees. The plaintiffs also attacked the DSS’s implementation of CRS as an attempt to avoid the rule-making procedures of the Administrative Procedures Act (APA).
    The defendant opposed the injunction, arguing that § 59 of the appropriations act was unconstitutional because it violated the title-object clause of the Michigan Constitution, constituted an attempt to amend sections of the Social Welfare Act without reenacting and republishing the entire amended act and impermissibly infringed on the executive branch’s power contrary to the Michigan Constitution. The DSS further contended that its promulgation of the CRS program qualified for an exemption to the APA rule-making procedures.
    The Ingham Circuit Court, Thomas L. Brown, J., upheld the constitutionality of § 59 of the DSS appropriations act. It also ruled that the CRS program was excluded from the definition of a rule by a provision of the APA. The court then issued an injunction against the implementation of the CRS program until the end of the fiscal year which commenced October 1, 1977, or until seven days after plaintiffs counsel had been served with notice of legislative approval for further implementation, whichever should occur first.
    The defendant appeals and plaintiffs cross-appeal. On October 31, 1978, the plaintiffs moved to dismiss the defendant’s appeal as moot, since neither the trial court’s order nor the legislation on which it was based was in effect due to the passage of time. Held:

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 768.
    [2] 73 Am Jur 2d, Statutes §§ 99, 145, 146.
    [3] 73 Am Jur 2d, Statutes §§ 99, 102, 122.
    [4] 73 Am Jur 2d, Statutes § 139.
    [5] 1 Am Jur 2d, Administrative Law § 46.

      1. While the issue may be technically moot, it is of public significance and is likely to recur. The Court of Appeals will consider the issue since the DSS appropriations act for the fiscal year commencing Oct 1, 1978, had a provision (§ 65 of 1978 PA 401) similar to the one in question for the preceding year.
    2. § 65 of the 1978 appropriations act does not conflict with the title-object clause of the Constitution. The provision limits or forbids expenditures of appropriated funds and is directly related to the object of the act as stated in its title.
    3. § 65 is not an unconstitutional attempt by the Legislature to usurp powers of the executive branch. This provision merely eliminates funding for one method of determining eligibility for public assistance, the costs of which outweigh its benefits.
    4. It is unnecessary to rule on the defendant’s allegation that the Legislature impliedly or directly amended the Social Welfare Act by terminating funding for CRS without republication and reenactment of the entire amended act. Failure to appropriate money for a particular program cannot logically be construed as a repeal or amendment of prior substantive laws requiring reenactment and republication. Secondly, the Legislature has retained the statutory power to make all substantive legislative enactments subject to its appropriations decisions.
    5. The trial court improperly found the CRS to be exempt from the APA’s rule-making requirements under the provision of the APA which exempts instructions concerning completion of a simple form. However, the CRS does qualify for such an exemption as an exercise of a permissive statutory power.
    Affirmed.
    1. Appeal and Error — Mootness — Technically Moot Issues — Recurring Issues — Public Significance.
    Appellate courts of this state will consider the merits of technically moot issues if the issues are of public significance and are likely to recur.
    2. Constitutional Law — Title-Object Clause — Purpose.
    The goal of the title-object clause of the Michigan Constitution is to insure that the legislators and the public have proper notice of an act’s legislative content; consistent with this constitutional purpose, an act may contain all matters germane to its object, and any provisions which directly relate to, carry out and implement the principal object (Const 1963, art 4, § 24).
    3. Constitutional Law — Title-Object Clause — Appropriations Act — Limitation on Expenditures.
    A provision in an act appropriating funds for the Department of Social Services which limits or forbids expenditures of funds appropriated by the act is directly related to the object of the act and does not violate the title-object clause of the Michigan Constitution where the object of the act, as stated in its title, is to make appropriations for the Department of Social Services and to provide for the expenditure of those appropriations (Const 1963, art 4, § 24).
    4. Constitutional Law — Amended Acts — Republication — Reenactment — Appropriations Act.
    The failure of the Legislature to appropriate money for a particular program cannot logically be construed as a repeal or amendment of prior substantive laws so as to require compliance with the provision of the Michigan Constitution which prohibits the amendment of an act without reenacting and republishing the entire amended act (Const 1963, art 4, § 25).
    5. Administrative Law — Agency Policy — Permissive Statutory Power.
    A policy of a state agency is an exercise of a permissive statutory power and is not a rule requiring formal adoption if the agency policy follows from the statutory authority of the agency.

      Edward J. Hoort, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Janis Meija, William K Basinger and Erica Weiss, Assistants Attorney General, for defendant.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   M. F. Cavanagh, J.

Plaintiffs-appellees filed suit in November, 1977, to enjoin the Department of Social Services (DSS) from operating its client reporting system (CRS) in 11 Michigan counties. In their complaint, plaintiffs alleged that § 59 of the annual DSS appropriations act (1977 PA 105) terminated the CRS program after December 1, 1977, absent proof of cost-effectiveness and approval from the Senate and House appropriations committees. Plaintiffs contended that because this approval had been obtained for only two of the 11 counties, continued DSS expenditures for CRS in the remainder were illegal. Finally, they also attacked the DSS’s implementation of CRS as an attempt to avoid the rule-making procedures of the Administrative Procedures Act.

Defendant opposed the injunction on the grounds that § 59 of 1977 PA 105 was unconstitutional, claiming it violated Const 1963, art 4, § 24 (the title-object clause), constituted an attempt to amend sections of the Social Welfare Act, MCL 400.1 et seq.; MSA 16.401 et seq., without reenacting and republishing the entire amended act (Const 1963, art 4, § 25) and impermissibly infringed on the executive branch’s power contrary to Const 1963, art 3, § 2. DSS further contended that its promulgation of the CRS program qualified for an exemption to APA rule-making under MCL 24.207; MSA 3.560(107).

After hearing and argument, the trial court upheld the constitutionality of § 59. It also ruled that the DSS’s CRS program was excluded from the definition of a rule by § 7(h) of the Administrative Procedures Act. MCL 24.207(h); MSA 3.560(107)(h). The court then issued a permanent injunction against defendant, as follows:

"IT IS FURTHER ORDERED that defendants be, and hereby are, permanently ENJOINED, until October 1, 1978 or until seven (7) days after the service upon counsel for Plaintiffs of evidence of approval of the further implementation of the CRS system by state House and Senate appropriations committees, whichever first occurs, from implementing the CRS system in counties other than Ingham and Genesee and that the above-titled cause be, and the same hereby is, DISMISSED.” (Emphasis added.)

Defendant appeals from this order. On October 31, 1978, plaintiffs moved to dismiss the appeal as moot, since neither the court’s order nor the legislation on which it was based was in effect due to passage of time.

1977 PA 105 expired with the end of the fiscal year in September, 1978. It has since been replaced by 1978 PA 401. However, § 65 of the 1978 appropriations act prohibits all expenditures of DSS funds for the CRS program in all counties.

Despite differences in language from § 59 of the 1977 act, § 65 also has the effect of terminating the CRS program. Therefore, defendant argues that in spite of technical mootness, the issues raised continue to warrant judicial scrutiny.

Courts in this state have indicated their willingness to consider the merits of technically moot issues, if they are "of public significance and [are] likely to recur”. Regents of the University of Michigan v Michigan, 47 Mich App 23, 27; 208 NW2d 871 (1973), aff'd 395 Mich 52; 235 NW2d 1 (1975). Milford v People’s Community Hospital Authority, 380 Mich 49; 155 NW2d 835 (1968), General Telephone Co of Michigan v Public Service Commission, 78 Mich App 528, 534; 260 NW2d 874 (1977), lv den 402 Mich 901 (1978).

The Legislature’s ability to control the continuance of substantive programs through control of appropriations and the alleged importance of CRS to efficient administration of public assistance present questions of self-evident public significance. Nevertheless, the automatic expiration of each appropriations act means that these legitimate questions may recur yearly and yet evade judicial review despite their importance. We therefore decline to dismiss the present appeal for mootness.

Prior to discussing the specific constitutional infirmities defendant raised to the Legislature’s use of an appropriations provision effectively to terminate a substantive program, the distinct difference in the wording of § 65 of the 1978 act and § 59 of the 1977 act must be noted. Section 59, 1977 PA 105 provided as follows:

"The client reporting pilot program, which evaluates on a monthly basis, the income and resources of aid to families with dependent children recipients, shall terminate effective December 1, 1977. The client reporting system shall only be continued and implemented in other counties when the department of social services documents its cost effectiveness and the implementation is approved by the senate and house appropriations committees. (Emphasis added.)

In contrast to § 59’s explicit termination of CRS, § 65(1) clearly involves only a straight-forward spending limitation:

"Funds shall not be expended by the department of social services after October 1, 1978, for the pilot program of monthly client reporting in Genesee and Ingham counties, and funds shall not be expended by the department to resume or implement any system of monthly client reporting without the approval of the house and senate appropriations committees. (Emphasis added.)

This change in language effectively disposes of the alleged title-object violation by the provision in the 1977 act. The goal of the title-object clause is to insure that the legislators and the public have proper notice of an act’s legislative content. Consistent with this constitutional purpose, an act may contain all matters germane to its object, and any provisions which "directly relate to, carry out and implement the principal object”. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465-467; 208 NW2d 469 (1973), and the cases cited therein. Clearly, a provision which limits or forbids expenditures of appropriated funds is directly related to 1978 PA 401’s object, as stated in its title, to "make appropriations for the department of social services * * *; to provide for the expenditure of those appropriations”. We thus find no constitutional infirmities in § 65 of 1978 PA 401 on these grounds.

We also find no unconstitutional attempt by the Legislature in § 65 to usurp executive branch powers. This provision merely eliminates funding for one method of determining eligibility for public assistance costs of which outweigh its benefits. It does not subject the daily administration of social welfare programs to legislative oversight. Likewise, the requirement of cost-effectiveness studies on CRS from the DSS before reimplementation of the program will be allowed involves a proper legislative attempt to insure the effective spending of public monies.

Finally, we do not find it necessary to rule on the defendant’s allegation that the Legislature impliedly or directly amended the Social Welfare Act by terminating funding for CRS without republication and reenactment contrary to Const 1963, art 4, § 25.

In the first place, failure to appropriate money for a particular program cannot logically be construed as a repeal or amendment of prior substantive laws requiring compliance with art 4, § 25. The DSS still retains its authority under the Social Welfare Act to conduct eligibility reviews even on a monthly basis. The Legislature has simply indicated in § 65 that it will not pay for one method of review until convinced of its cost effectiveness. As such, its decision is essentially a political one.

Secondly, the Legislature has retained the statutory power to make all substantive legislative enactments subject to its appropriations decisions. MCL 21.9; MSA 3.289 (enacted prior to the Social Welfare Act), forbids payments from the state treasury for any program in the absence of a specific appropriation. Section 65 is a reflection of this retained power.

We next consider the issue raised by plaintiff on cross-appeal, challenging the trial court’s ruling that the CRS is exempted by § 7(h) from the definition of a "rule” and thus not subject to the APA’s rule-making requirements. MCL 24.207(h); MSA 3.560(107)(h), relied on by the trial court, exempts

"A form with instructions, an interpretative statement, a guideline, an informational pamphlet or other material which in itself does not have the force and effect of law but is merely explanatory.”

We disagree with the trial court’s finding that this exemption applies to the CRS system. It is apparent that the reporting system involved more than instructions concerning completion of a simple form; a client who failed to comply with the instructions clearly risked termination of public assistance. However, we decline to reverse the trial court’s decision, since we are persuaded that the CRS qualifies for exemption under § 7(j) of the APA, MCL 24.207(j); MSA 3.560(107)(j), as involving

"A decision by an agency to exercise or not to exercise a permissive statutory power, although private rights and interests are affected thereby.”

As explained in Village of Wolverine Lake v State Boundary Comm, 79 Mich App 56, 59; 261 NW2d 206 (1977), if an agency policy follows from its statutory authority, the policy is an exercise of a permissive statutory power and not a rule requiring formal adoption. Given our decision that 1978 PA 401, § 65 is a mere funding limitation, and not a limit on the DSS’s authority to review eligibility for assistance, under MCL 400.43; MSA 16.443, the DSS’s implementation of its review authority by the CRS program falls squarely within the rule enunciated in Wolverine Lake, supra.

The decision of the trial court is therefore affirmed.


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

text:
    BROOKS v REED
    Docket No. 78-3254.
    Submitted August 28, 1979, at Detroit.
    Decided October 16, 1979.
    Leave to appeal applied for.
    John Brooks and his wife Beverly Brooks brought an action against William S. Reed and the Hertz Corporation alleging that Reed was operating a Hertz automobile in a negligent fashion when he collided with a vehicle driven by John Brooks and due to such negligence Brooks sustained injuries which resulted in a serious impairment of body function. Defendants filed a motion for summary judgment on the ground that plaintiffs failed to establish serious impairment. An affidavit of defendants’ joint counsel averred that an examination of medical records revealed that Brooks had only seen his doctor, a chiropractor, on four occasions immediately following the accident and that he was able to carry out his normal functions without seeing any physicians thereafter. Plaintiffs filed an opposing affidavit of Dr. David Eisman, a chiropractic physician, who described Brooks’ injuries as causally related to the automobile collision and that in his opinion the injuries constituted a serious impairment of body function. Wayne Circuit Court, Charles S. Farmer, J., granted summary judgment to defendants indicating that the facts plaintiffs relied upon to satisfy the no-fault act’s threshold requirements were insufficient as a matter of law. Plaintiffs appeal this ruling and further allege that the trial court erred because the affidavit in support of defendants’ motion did not state that the affiant, if sworn as a witness, could testify competently to the facts contained therein. Held:

    1. There are cases in which a trial court can rule, as a matter of law, that a plaintiffs injury is so minor that it fails to reach the threshold of a serious impairment. The question of serious impairment is one of law where it can be said with certainty that no reasonable jury could view a plaintiffs impairment as serious. Nothing in the record discloses that John Brooks suffered any impairment which reasonable persons could view as serious. The degree of injury was insufficient to meet the minimum threshold requirement and the trial court’s determination that the injuries claimed did not constitute serious impairment was without error.

      References for Points in Headnotes
    [1, 2, 5, 11] 73 Am Jur 2d, Summary Judgment §§ 26, 27.
    [3, 12] Am Jur 2d New Topic Service, No Fault Insurance § 14.
    [4] Am Jur 2d New Topic Service, No Fault Insurance § 1.
    [6-9] 73 Am Jur 2d, Summary Judgment §§ 18, 22-25.
    [10] [No Reference]

      2. Generally, affidavits in support of a motion for summary judgment must be based upon the personal knowledge of the affiant. It was impossible for defendants’ joint counsel to have personal knowledge of Brooks’ injuries because his injuries and treatment were within the personal knowledge of Brooks and Dr. Eisman, and it is unlikely that either of them would cooperate. A trial court has the authority to excuse a party from presenting material facts where such facts are known only to persons whose affidavits he cannot procure.
    Affirmed.
    N. J. Kaufman, J., dissented. He would reverse the trial court’s grant of summary judgment. Dr. Eisman’s affidavit indicated Brooks did suffer a serious impairment of body function and this created a genuine issue as to this material fact upon which the fact-finders could have gone either way. The question of serious impairment was one of fact, not of law.
    Opinion of the Court
    1. Judgment •— Summary Judgment — Motions —■ Genuine Issue of Material Fact — Standard of Determination — Court Rules.
    A motion for summary judgment on the ground that there is no genuine issue as to any material fact is designed to test whether there is factual support for a claim; the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it and before judgment may properly be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial (GCR 1963, 117.2[3]).
    2. Judgment — Summary Judgment — Motions — Genuine Issue of Material Fact — Judicial Fact Finding.
    A motion for summary judgment has the limited function of determining whether a material issue of fact exists where the motion is based on a claim that there is no genuine issue as to any material fact; the trial court must carefully avoid making a finding of fact under the guise of determining that no issue of material fact exists.

      3. Insurance — No-Fault Insurance — Automobiles — Serious Body Impairment — Jury Question — Legal Question.
    The question of whether a particular impairment satisfies the threshold requirement of the automobile no-fault act for serious impairment of body function is not always a question for the trier of fact; a trial court can rule, as a matter of law in certain cases, that a plaintiffs injury is so minor that it fails to reach the threshold of a serious impairment; serious impairment is a question of law where it can be said with certainty that no reasonable jury could view a plaintiffs impairment as serious.
    4. Insurance — No-Fault Insurance — Automobiles — Noneconomic Damages — Elimination of Lawsuits.
    The automobile no-fault insurance statute’s elimination of tort liability for noneconomic damages is inherently directed toward a reduction in the number of litigated suits.
    5. Judgment — Summary Judgment — Fact Issues — Right to Trial.
    Generally, courts are very liberal in finding that a genuine issue of fact does exist in order not to infringe on a party’s right to trial.
    6. Judgment — Summary Judgment — Motions — Genuine Issue of Material Fact — Affidavits — Personal Knowledge — Court Rules.
    A motion for summary judgment on the ground that there is no genuine issue as to any material fact must be supported by affidavits and these affidavits must be on personal knowledge and show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts contained therein (GCR 1963, 116.4, 117.2[3]).
    7. Judgment — Summary Judgment — Motions — Affidavits — Personal Knowledge Requirement.
    Affidavits in support of a motion for summary judgment on the ground that there is no genuine issue as to any material fact must be based upon the personal knowledge of the affiant; therefore, affidavits that allegations are true to the best of the affiant’s knowledge and belief are generally insufficient.
    8. Judgment — Summary Judgment — Motions — Affidavits — Function of Affidavits — Evidentiary Proof.
    The function of an affidavit by a defendant, in support of a motion for summary judgment on the ground that there is no genuine issue as to any material fact, is to establish affirmatively that there is no basis in fact to support the plaintiffs claim; to that end, the defendant must come forward with some evidentiary proof—some statement of specific fact.
    9. Judgment — Summary Judgment — Motions — Affidavits — Material Facts — Procurement.
    A trial court has the authority to excuse a party from presenting material facts in support of a motion for summary judgment where he cannot present the material facts essential to justify his position because such facts are known only to persons whose affidavits he cannot procure (GCR 1963, 116.6).
    Dissent by N. J. Kaufman, J.
    10. Judgment — Summary Judgment — Motions — Summary Judgment Rule — Subrules — Rule Identification — Appeal and Error.

      Failure to indicate, either in a motion for summary judgment or in the judgment entered by the trial court, which subrule of the summary judgment rule was relied on is a practice that has been looked upon with disfavor by the Court of Appeals; unless the applicable subrule under which a party is proceeding is identified, the trial court’s job of deciding the motion and the review on appeal become much more difficult.

    11. Judgment — Summary Judgment — Motions — Material Facts — Court Rules.

      Motions for summary judgment on the ground that there is no genuine issue as to any material fact should not be granted unless no genuine issue as to any material fact remains; in passing on the motion, beneñt of every reasonable doubt must be given to the party opposing the motion (GCR 1963, 117.2[3j).

    12. Insurance — No-Fault Insurance — Automobiles — Serious Body Impairment — Jury Question — Legal Question.

      Generally, the question of serious impairment of body function under the automobile no-fault act is submitted to a jury; it is a question of law only where it could be said with certainty that no reasonable jury could view the plaintiff’s impairment as serious; where an affidavit creates a genuine issue as to a material fact upon which fact-finders could have gone either way, the fact of serious impairment is for the jury.

      Rader, Eisenberg & Feldman, P.C., for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk &

      Pedersen, P.C. (by James S. O’Leary and Christine D. Oldani), for defendants.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   J. H. Gillis, P.J.

This is an automobile no-fault case. Plaintiffs appeal from a grant of summary judgment in favor of the defendants. The background facts are fully set forth in the dissenting opinion.

A motion for summary judgment which is based on GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972).

When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Before the judgment may properly be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. The motion has the limited function of determining whether a material issue of fact exists. The trial court must carefully avoid making a finding of fact under the guise of determining that no issue of material fact exists. Partrich v Muscat, 84 Mich App 724, 730-731; 270 NW2d 506 (1978).

The defendants contend that there was no issue as to a material fact since the injuries claimed did not constitute "serious impairment of body function” so as to meet the threshold tort requirements of the no-fault act. MCL 500.3135(1); MSA 24.13135(1).

The question of whether a particular impairment satisfies the threshold requirement of the no-fault act for serious impairment of body function is not always a question for the trier of fact. There are cases in which the trial court can rule, as a matter of law, that a plaintiffs injury is so minor that it fails to reach the threshold of a serious impairment. Cassidy v McGovern, 86 Mich App 321, 325-326; 272 NW2d 644 (1978), Vitale v Danylak, 74 Mich App 615, 619; 254 NW2d 593 (1977), lv den 403 Mich 848 (1978), McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976). The question of serious impairment is one of law where it can be said with certainty that no reasonable jury could view a plaintiff’s impairment as serious. Such question must be approached on a case-by-case basis. Harris v McVickers, 88 Mich App 508; 276 NW2d 629 (1979).

The no-fault statute’s elimination of tort liability for noneconomic damages, except where the enumerated conditions result, is inherently directed toward a reduction in the number of litigated suits. Vitale, supra, at 619. With this policy objective in mind, we must examine the facts with respect to plaintiffs injuries in order to determine whether a reasonable jury could view such injuries as constituting a serious impairment of body function.

At the time of the accident, plaintiff told the police that his arms and wrists had been injured. Plaintiff declined to go to the hospital at that time. Furthermore, plaintiff stated that he never visited a hospital in connection with the injuries in question. Approximately four weeks later, in November, 1973, the plaintiff visited and was treated by Dr. David Eisman, a chiropractor. Plaintiff was given a heat treatment and medication. He thereafter visited Dr. Eisman three times at intervals of three to four weeks. Plaintiff did not visit Dr. Eisman or any other doctor after January 16, 1974.

Although fully cognizant of the fact that courts are very liberal in finding that a genuine issue of fact does exist so as to preclude summary judgment in order not to infringe on a party’s right to trial, Bob v Holmes, 78 Mich App 205; 259 NW2d 427 (1977), we find that nothing in the record discloses that the plaintiff suffered any impairment which reasonable persons could view as serious. The degree of injury in this case is insufficient to meet the minimum threshold requirement.

We arrive at this conclusion notwithstanding the affidavit of plaintiff’s doctor which opined to the contrary. The affidavit is simply one piece of evidence which must be considered in determining whether a material issue of fact exists. Rizzo v Kretschmer, supra. We are disinclined to hold that a doctor’s affidavit which opines that a plaintiff has suffered a serious impairment of body function creates a genuine issue of material fact, when an objective consideration of all the available evidence requires the opposite conclusion. The soundness of the doctor’s opinion is always open to question.

The lower court’s determination that there existed no issue as to a material fact since the injuries claimed did not constitute a serious impairment of body function was without error.

Plaintiffs’ second claim of error represents a challenge to the affidavit defendants offered in support of their summary judgment motion.

Plaintiffs contend that the trial court erred in granting summary judgment in the defendants’ favor because the affidavit in support of the motion did not aver that the affiant, if sworn as a witness, could testify competently to the facts contained therein.

A review of the record discloses that the affidavit in question was signed by defense counsel and merely states that the contents of the motion and the brief in support thereof "are true and accurate to the best of the deponent’s [sic] present information and knowledge”. Furthermore, no pleadings were ever filed which were sworn to by any person with personal knowledge of the facts set forth therein.

At this point, it should be noted that the affidavit states it is made upon defense counsel’s information and knowledge. The facts contained in the motion and the brief in support thereof relate to the extent of the medical treatment received by the plaintiff as a result of the accident. It is not contended that defense counsel could have testified upon personal knowledge of the facts contained, by reference, in his affidavit. In fact, no averment that he could so testify was made in the affidavit. There being an absence of personal knowledge on the part of the affiant, the affidavit is properly treated as one made upon information and belief.

A motion for summary judgment made pursuant to GCR 1963, 117.2(3) "shall be supported by affidavits”. GCR 1963, 117.3. Such affidavits must be on "personal knowledge” and "show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts contained therein”. GCR 1963, 116.4. Durant v Stahlin, 375 Mich 628, 640; 135 NW2d 392 (1965), 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1978 Supp, pp 128-129.

Since the supporting affidavit must be based upon the personal knowledge of the affiant, affidavits that allegations are true to the best of the affiant’s knowledge and belief are generally insufficient. Jones v Shek, 48 Mich App 530, 532-533; 210 NW2d 808 (1973), Sun Insurance Office, Limited v Keller, 46 Mich App 761; 208 NW2d 525 (1973), Huron School Dist v Huron Twp, 42 Mich App 590, 592-593; 202 NW2d 491 (1972), lv den 388 Mich 789 (1972), 73 Am Jur 2d, Summary Judgment, § 17, p 740. As a result of the insufficiency, the above cited cases held that the motion for summary judgment was never properly before the trial court. The granting of the motion was deemed reversible error.

The same result is not mandated here. In a summary judgment proceeding, an affidavit is employed as a voluntary statement made ex parte. 3 Am Jur 2d, Affidavits, § 1, p 380. The function of an affidavit by the defendant is to establish affirmatively that there is no basis in fact to support plaintiffs claim. To that end, the defendant must come forward with some evidentiary proof—some statement of specific fact. Durant v Stahlin, supra, Doornbos v Nordman, 26 Mich App 278, 281; 182 NW2d 362 (1970). In the present case, the specific evidential facts (see Simerka v Pridemore, 380 Mich 250, 275; 156 NW2d 509 [1968]) concerning the nature of plaintiffs injuries and treatment were within the personal knowledge of only the plaintiff and Dr. Eisman. It is unlikely that either of them would have provided the defendants with a voluntary statement and affidavit.

Under such circumstance, the trial court has the authority to excuse the defendant from presenting the material facts in the affidavit. GCR 1963, 116.6. The affidavit is then supplemented by depositions or answers to interrogatories. Although the lower court did not expressly rely on this court rule in granting the defendants’ motion, the availability of the rule as an exception to the affidavit requirements of GCR 1963, 116.4 prevents the insufficiency of the defendants’ affidavit from rendering the grant of summary judgment reversibly erroneous.

Affirmed.

R. B. Burns, J., concurred.

N. J. Kaufman, J.

(dissenting). Plaintiffs commenced this action against defendants under the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. The complaint alleged that defendant Reed was operating an automobile owned by defendant Hertz Corporation in a negligent fashion when he collided with a vehicle driven by plaintiff John Brooks. And, due to such negligence, plaintiff Brooks sustained injuries which resulted in a serious impairment of body function.

The defendants responded to plaintiffs’ complaint through an answer and a motion for summary judgment. The defendants based this motion on the theory that, as a matter of law, plaintiffs did not establish a serious impairment of a body function and, therefore, their complaint should be dismissed, MCL 500.3135; MSA 24.13135. In support of this assertion, defendants presented an affidavit of their joint counsel, who averred that an examination of medical records revealed that plaintiff Brooks had only seen his doctor, a chiropractor, on four occasions immediately following the incident, and that he was able to carry out his normal functions without seeing any physicians thereafter.

The plaintiffs, in turn, filed an opposing affidavit of one Dr. David Eisman, a chiropractic physician. In this statement, Doctor Eisman described plaintiff’s injuries in medical terms, indicated that these injuries were causally related to the automobile collision, and averred that, in his opinion, the plaintiffs injuries constituted a serious impairment of body function.

The court granted defendants’ summary judgment motion indicating that the facts plaintiffs relied upon to satisfy no-fault’s threshold requirements were insufficient as a matter of law. The trial court based its decision solely on the pleadings and the aforementioned affidavits. Doctor Eisman was never deposed in this matter. Plaintiffs appeal as of right from this adverse determination.

At the outset, it must be noted that nowhere in the lower court record, either in the motion presented by defendants or the judgment entered by the court, is there any indication of which subrule of the summary judgment rule was being relied on. This is a practice that has been looked upon with disfavor by this Court in the past. See Partrich v Muscat, 84 Mich App 724; 270 NW2d 506 (1978). Unless the applicable subrule under which a party is proceeding is identified, the trial court’s job of deciding the motion and the review on appeal become much more difficult. See, Bashara, The Illusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397, 400.

Nevertheless, since the trial court used "factual sufficiency” terms in its decision and since this decision was rendered following consideration of affidavits and depositions, rather than upon the pleadings alone, I will review the matter under GCR 1963, 117.2(3). See Rizzo v Kretschmer, 389 Mich 363, 371; 207 NW2d 316 (1973).

Motions for summary judgment under GCR 1963, 117.2(3) are not proper unless no genuine issue as to any material fact remains. In passing on the motion, benefit of every reasonable doubt must be given to the party opposing the motion. Summary judgment under this provision is designed to test whether factual support exists for the claim made. Affidavits, pleadings, depositions, admissions, and other documentary evidence must be considered by the court. Courts are liberal in finding that a genuine issue does exist, in order not to infringe upon a party’s right to trial of disputed factual issues, Rizzo, supra at 370-374; Sullivan v The Thomas Organization, PC, 88 Mich App 77, 85-86; 276 NW2d 522 (1979).

In granting summary judgment to defendants then, the trial court ruled that plaintiffs alleged insufficient facts to satisfy the threshold requirement for serious impairment of a body function in MCL 500.3135(1); MSA 24.13135(1). In Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 477-478; 208 NW2d 469 (1973), the Supreme Court indicated that the question of serious impairment should in most instances be submitted to the jury as triers of fact. "Only when interpretation approaches or breaches permissible limits does it become a question of law for the court”. Moreover, each case must be considered individually to reach this determination.

Permissible limits were found to have been approached in Cassidy v McGovern, 86 Mich App 321, 325-326; 272 NW2d 644 (1978), Vitale v Danylak, 74 Mich App 615, 619; 254 NW2d 593 (1977), lv den 403 Mich 848 (1978), and McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976). In McKendrick, supra at 212, the trial court’s role was limited to those cases where it could be said with certainty that no reasonable jury could view the plaintiffs impairment as serious.

Applying this standard to the instant factual situation, I find it necessary to reverse the trial court’s determination. The affidavit of Dr. Eisman, which indicated plaintiff Brooks did suffer a serious impairment of body function, created a genuine issue as to this material fact upon which the fact-finders could have gone either way.

I would reverse and remand for proceedings in conformity with this opinion.