author: L. W. Corkin, J.

text:
    MICHIGAN STATE EMPLOYEES ASSOCIATION v MICHIGAN EMPLOYMENT SECURITY COMMISSION
    Docket No. 78-4096.
    Submitted June 19, 1979, at Lansing.
    Decided January 9, 1980.
    Leave to appeal applied for.
    Plaintiff Michigan State Employees Association and plaintiffs Robert Rose, William T. Sebright and H. Carl Gower filed suit in the Ingham Circuit Court against defendants, Michigan Employment Security Commission, Michigan Department of Education and John W. Porter, Superintendent of Public Instruction, for a declaration as to the constitutionality of that portion of the Employment Security Act denying unemployment benefits to classified civil service employees employed in instructional, research, professional or principal administrative capacities at the State Technical Institute and Rehabilitation Center, the Michigan School for the Blind and the Michigan School for the Deaf for those periods of seasonal layoff when the institutions are closed. The named individual plaintiffs were all state employees denied benefits under the Act. The trial court, James T. Kallman, J., ruled that the provision did not violate constitutional equal protection guarantees and dismissed the complaint. Plaintiffs appeal. Held:

    The Constitution of 1963 affords the same equal protection rights as the U.S. Constitution. The Equal Protection Clause requires reasonableness in legislative classifications within socio-economic legislation, i.e., some rationality in the nature of the class singled out is required. The test of rationality is whether the classification is reasonable in light of the purpose of the classification. The standard applicable to legislation which significantly interferes with liberty, denies a benefit vital to the individual or employs a classification deemed to be sensitive is that the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. This standard requires a realistic, rather than merely a legitimate, state purpose which is substantially, rather than merely rationally, supported by the classification system in the legislation. Protecting the fiscal integrity of the unemployment fund is a legitimate concern of the state. The statutory classification and exclusion from benefits is constitutional under either standard.

      References for Points in Headnotes
    [1, 2, 5] 16A Am Jur 2d, Constitutional Law § 746 et seq.

       16A Am Jur 2d, Constitutional Law § 758.

       16 Am Jur 2d, Constitutional Law §§ 212 et seq., 749.

       16 Am Jur 2d, Constitutional Law §§ 13, 18.
    16A Am Jur 2d, Constitutional Law §§ 735-739.

       76 Am Jur 2d, Unemployment Compensation §§ 5, 38 et seq.

       76 Am Jur 2d, Unemployment Compensation § 2.

       76 Am Jur 2d, Unemployment Compensation § 42.
    Seasonal employees as entitled to unemployment compensation. 24 ALR2d 1400.

      Affirmed.
    1. Constitutional Law — Statutes — Classification — Equal Protection.
    The Equal Protection Clause requires reasonableness in legislative classifications within socio-economic legislation, i.e., some rationality in the nature of the class singled out is required; the test of rationality is whether the classification is reasonable in light of the purpose of the classification.
    2. Constitutional Law — Statutes — Classification — Equal Protection.
    A court should be willing to uphold a legislative classification upon a state of facts that reasonably can be conceived to constitute a distinction or difference in state policy.
    3. Constitutional Law — Statutes — Classification — Equal Protection — Standard.
    The Equal Protection Clause does not require mathematical nicety; because the problems of government are practical ones, solutions may justify, if not require, rough accommodations.
    4. Constitutional Law — Statutes — Classification — Equal Protection — Burden of Proof.
    The burden of proof, in an equal protection challenge, is upon the challenging party to show that the law has no reasonable basis; statutes come to the courts cloaked in a presumption of validity.
    5. Constitutional Law — Statutes — Classification — Equal Protection — Standard.
    The standard applicable to legislation which significantly interferes with liberty, denies a benefit vital to the individual or employs a classification deemed to be sensitive is that the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation; the standard requires a realistic, rather than merely a legitimate, state purpose which is substantially, rather than merely rationally, supported by the classification system in the legislation.
    6. Constitutional Law — Equal Protection — States — United States.
    The Constitution of 1963 affords the same equal protection rights as the U.S. Constitution.
    7. Unemployment Compensation — Statutes — Statutory Purpose.
    The purpose of the Michigan Employment Security Act is to provide benefits for persons who become involuntarily unemployed through no fault of their own, but the Legislature did not intend that all nonworking persons would be eligible for benefits.
    8. States — Proper State Concern — Fiscal Integrity — Unemployment Fund.
    Protecting the fiscal integrity of the unemployment fund is a legitimate concern of the state.
    9. Unemployment Compensation — Constitutional Law — Statutes — Equal Protection — Rational Basis Test — Substantial Relation Test.
    The provision of the Michigan Employment Security Act disqualifying classified civil service employees of the state employed in instructional, research, professional or principal administrative capacities at the State Technical Institute and Rehabilitation Center, the Michigan School for the Blind and the Michigan School for the Deaf from eligibility for unemployment benefits during the summer closedown of the institutions does not violate the constitutional guarantee of equal protection (US Const, Am XIV, Const 1963, art 1, § 2).

      Fraser, Trebilcock, Davis & Foster (by Michael E. Cavanaugh and C. Mark Hoover), for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and E. J. Setlock, Assistant Attorney General, for defendant.

      Before: Cynar, P.J., and Mackenzie, and L. W. Corkin, JJ.

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

   L. W. Corkin, J.

Plaintiffs-appellants appeal from an order entered September 15, 1978, by-Judge James T. Kallman of the Ingham County Circuit Court dismissing plaintiffs’ complaint seeking a declaratory judgment as to the constitutionality of § 27(i)(2) of the Michigan Employment Security Act (hereafter Act), MCL 421.27(i)(2); MSA 17.529(i)(2). Plaintiffs-appellants appeal as of right.

Essential facts relevant to the case were stipulated to prior to trial and served as a basis for the trial court’s decision. While the stipulation was not, for some unknown reason, made a part of the record on appeal all parties have accepted a summarization of the stipulated facts as set forth in plaintiffs-appellants’ brief on appeal, so this Court will adopt such summarization as a statement of essential facts for purposes of this opinion.

The individual plaintiffs are a class of employees described as classified civil service employees of the State of Michigan employed in instructional, research, professional or principal administrative capacities at the State Technical Institute and Rehabilitation Center, the Michigan School for the Blind and the Michigan School for the Deaf. They are normally employed 42 or 46 weeks per year, being laid off during the summer closedown of these institutions.

Plaintiffs sought to have portions of the Act declared unconstitutional as being in violation of the equal protection guarantees of the Fourteenth Amendment to the United States Constitution and art 1, § 2 of the Michigan Constitution of 1963. The statute being challenged, as amended in 1975, denies unemployment benefits to those serving in an instructional, research, professional or principal administrative capacity at state educational facilities during the summer vacation. MCL 421.27(i)(2); MSA 17.529(i)(2). This statute was again amended in 1977 and is now MCL 421.27(i)(l)(a) and (b); MSA 17.529(i)(l)(a) and (b). The 1977 amendment continues to deny to the individual plaintiffs’ class and also other employees of state educational facilities the right to collect unemployment benefits between academic years and during vacations.

State civil service employees are covered by § 42(8) of the Act and are entitled to unemployment compensation benefits when specifically qualified. However, the individual plaintiffs, who are employed for less than a 52 week per year period, are denied unemployment compensation benefits for seasonal or other layoffs, regardless of their classification as state civil service employees. Further, it would appear that many other state employees of other departments subject to seasonal layoffs are entitled to unemployment compensation benefits if they are in fact laid off.

In the private sector, employees in such industries as construction and transportation that are subject to seasonal layoffs are entitled to receive compensation benefits in the event of seasonal layoff. Also, MESC information tables reveal that eligibility for unemployment benefits is not determined by industry experiences for annual seasonal layoffs or rate of compensation.

Finally, while it is true that under the act in question plaintiffs are treated similarly to school teachers employed by municipalities, the record shows that there are some differences between the two classes with respect to employment contracts, governing regulations, compensation and fringe benefits.

It is undisputed that plaintiffs having the unemployment characteristics set forth above are denied benefits under § 27(i)(2) of the Act. MCL 421.27(i)(2); MSA 17.529(i)(2).

The statute in effect at the time of this challenge stated:

"Section 42(8). Service performed by an individual in a classified civil service of this state and service performed by an individual for a school district, a community college district, a school or education facility owned or operated by the state other than an institution of higher education * * * is employment subject to this act.” MCL 421.42(8); MSA 17.545(8).
"Section 27(i). Benefits based on service in employment described in section 42(8) * * * shall be payable in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other service subject to this act, except that:
"Benefits based on service for a school district, a community college district, a school or educational facility owned or operated by the state, or a school operated by a political subdivision of the state shall not be paid to an individual for a week of unemployment within a denial period, as defined in this subsection, if the individual normally would not perform services during that period. A requalification period, however, may be served during a denial period. This subdivision shall not deny benefits to an employee of the Michigan school for the blind, the Michigan school for the deaf, or the state technical institute and rehabilitation center, except for those serving in an instructional, research, professional, or principal administrative capacity. For the purpose of this subdivision service in a professional capacity means service in a position which requires a bachelor’s degree as an educational requirement.” MCL 421.27G); MSA 17.529(i).

Plaintiffs claim that the statute has the effect of granting unemployment compensation benefits to all civil service employees except them (i.e., iristructional/administrative type employees working at the above named state facilities), and that significant differences exist which, based on their civil service status, distinguishes the plaintiffs from all* other non-civil service instructional/administrative type persons.

Clearly the application of this statute results in the denial of benefits to a class of civil service employees who would be entitled to the benefits but for their status as instructional type personnel at the particular state facilities and the fact that they are employed for less than 52 weeks per year. Plaintiffs contend that by being denied such benefits their class is a victim of differential treatment not based upon substantial distinctions, but rather is arbitrary, capricious and unreasonable and results in a violation of the constitutional equal protection guarantees.

In dealing with challenges brought under the equal protection clause courts have adopted various "labels” which immediately attach to a subsequent analysis and serve as a standard of review. Not only is the standard chosen by the reviewing court frequently determinative of the ultimate resolution of the issue but, once announced, it is but a short step to apply it to the particular situation under review. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 665-666, 668; 232 NW2d 636 (1975).

The United States Supreme Court, when considering socio-economic legislation, has held that equal protection requires reasonableness in legislative classifications. Tribe, American Constitutional Law, § 16-2, pp 994-996 (1978). Some rationality in the nature of the class singled out is required. Rinaldi v Yeager, 384 US 305, 308-309; 86 S Ct 1497; 16 L Ed 2d 577 (1966). "Rationality” is tested by the classification’s ability to serve the purpose intended by the legislative enactment: the courts must reach and determine the question of whether f-"the classifications drawn in a statute are reasonable in light of its purpose * * *”. McLaughlin v Florida, 379 US 184, 191; 85 S Ct 283; 13 L Ed 2d 222 (1964). The Court has ordinarily been willing to uphold any classification based "upon a state of facts that reasonably can be conceived to constitute a distinction, or difference in state policy * * Allied Stores of Ohio, Inc v Bowers, 358 US 522, 530; 79 S Ct 437; 3 L Ed 2d 480 (1959). That the legislative solution may appear undesirable, unfair, unjust or inhumane does not of itself empower a court to override the legislature and substitute its own solution. Dandridge v Williams, 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970). Because "[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations”, Metropolis Theatre Co v Chicago, 228 US 61, 69; 33 S Ct 441; 57 L Ed 730 (1913); a demand for "mathematical nicety”, Lindsley v Natural Carbonic Gas Co, 220 US 61, 78; 31 S Ct 337; 55 L Ed 369 (1911), is implausible. Instead, the United States Constitution invalidates only that governmental choice which is "clearly wrong, a display of arbitrary power, not an exercise of judgment”. Mathews v De Castro, 429 US 181, 185; 97 S Ct 431; 50 L Ed 2d 389 (1976).

Thus, the "any rational basis” test has been applied principally to legislation dealing with social, economic, fiscal and regulatory matters. In applying this standard to cases challenging these types of statutes the Supreme Court has not only entertained a presumption of constitutionality, e.g., McGowan v Maryland, 366 US 420, 425-426; 81 S Ct 1101; 6 L Ed 2d 393 (1961), Madden v Kentucky, 309 US 83, 88; 60 S Ct 406; 84 L Ed 590; 125 ALR 1383 (1940), and placed the burden on the challenging party to show that the law has no reasonable basis, Lindsley v Natural Carbonic Gas Co, supra, but has in fact upheld the legislation in nearly every challenge brought under the equal protection clause. Note: Developments in the Law; Equal Protection, 82 Harv L Rev 1065, 1087 (1969). The standard of "minimal scrutiny” has been applied in recent years to uphold various economic and social legislation. Village of Belle Terre v Boraas, 416 US 1; 94 S Ct 1536; 39 L Ed 2d 797 (1974), United States Dep’t of Agriculture v Moreno, 413 US 528; 93 S Ct 2821; 37 L Ed 2d 782 (1973), Jefferson v Hackney, 406 US 535; 94 S Ct 1724; 32 L Ed 2d 285 (1972), Dandridge v Williams, supra, McGowan v Maryland, supra, Massachusetts Board of Retirement v Murgia, 427 US 307; 96 S Ct 2562; 49 L Ed 2d 520 (1976).

In the recent case of New Orleans v Dukes, 472 US 297, 303; 96 S Ct 2513; 49 L Ed 2d 511 (1976), the Court said:

"When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. * * * Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. * * * In short, the judiciary may not sit as a super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines * * (Citations omitted.)

Thus, the appropriate standard of review to apply in the instant case would be that calling for "minimal scrutiny”; if there is any conceivable rational basis upon which the statutory classification is based denying unemployment compensation benefits to the plaintiffs, then the legislation should be upheld.

As noted above the so-called "rational basis test” resulted in striking down nearly all challenges brought under the equal protection clause. However, there have been cases where a somewhat more stringent standard has been applied and it is this standard that plaintiffs urge this Court to apply. Plaintiffs cite Reed v Reed, 404 US 71, 76; 92 S Ct 251; 30 L Ed 2d 225 (1971), wherein the Court stated that for legislation to be upheld the classification "must be reasonable, not arbitrary, and must rest, upon some ground of difference having a fair and substantial relation to the object of the legislation”. This standard requires a "realistic”, rather than merely a "legitimate”, state purpose which is substantially, rather than merely rationally, supported by the classification system set by the legislature.

It is doubtful whether the Reed "intermediate” standard is applicable to the instant case. Reed and subsequent cases adopting the intermediate standard of review use it only in certain limited circumstances, i.e., if there is a significant interference with liberty, a denial of a benefit vital to the individual or the employment of a classification which is deemed to be sensitive (e.g. gender, illegitimacy). Tribe, supra, §§ 16-31, pp 1089-1092, and authorities cited therein. None of the necessary factors are present in this case, so it can be concluded that the U.S. Supreme Court would use minimal scrutiny and apply the rational basis as the appropriate standard of review to the challenged legislation in this case.

Support for this conclusion is found in Ohio Bureau of Employment Services v Hodory, 431 US 471, 489; 97 S Ct 1898; 52 L Ed 2d 513 (1977), where the Court upheld against an equal protection challenge a state scheme denying unemployment compensation to workers whose joblessness resulted from participation in a labor dispute. In the course of the opinion the Court held that since "[t]he statute does not involve any discernible fundamental interest or affect with particularity any protected class * * * the test of constitutionality, therefore, is whether the statute has a rational relation to a legitimate state interest”.

"[T]he legislature is not bound to occupy the whole field. It may strike at the [unemployment] evil where it is most felt, * * * or where it is most practicable to deal with it * * *. It may exclude others whose need is less, * * * or whose effective aid is attended by inconvenience which is greater * * *.” Carmichael v Southern Coal & Coke Co, 301 US 495, 519-520; 57 S Ct 868; 81 L Ed 1245; 109 ALR 1327 (1937). (Citations omitted.)

The Court noted that the Federal unemployment insurance scheme was not invalid due to its failure to provide benefits to agricultural laborers, domestics, seamen, insurance agents, close relatives of the employer or employees of charities, interstate railroads or governments. See also Geduldig v Aiello, 417 US 484; 94 S Ct 2485; 41 L Ed 2d 256 (1974).

It has been said that the equal protection clause of the Michigan Constitution affords "the same right as the Federal equal protection clause”. Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644 (1967). This proposition is supported by other appellate court decisions. Moore v Spangler, 401 Mich 360; 258 NW2d 34 (1977), Wolodzko v Wayne Circuit Judge, 382 Mich 528, 534; 170 NW2d 9 (1969), Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510; 104 NW2d 182 (1960), Naudzius v Lahr, 253 Mich 216, 222; 234 NW 581 (1931), Wahl v Brothers, 60 Mich App 66, 69-70; 230 NW2d 311 (1975). This being so, it must be concluded that the same standard of equal protection as announced by the United States Supreme Court in Hodory, supra, should apply in the instant case. Namely, the test of minimal scrutiny using "any rational basis” as the standard of review.

Plaintiffs contend that in the instant case the intermediate level of review be employed, which would require that the classification in question bear a substantial relation to the purpose of the statute. In support of their contention they cite Manistee Bank, supra, wherein Justice Levin speaking for a plurality, wrote:

"In my judgment, at least where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental, the substantial-relation-to-the-object test should be applied.” 394 Mich 655, 671.

It should be noted that neither of the two particular qualifications specified by Justice Levin is present in this case.

First, this case does not involve an exception to the common law, but rather a limitation on a legislative program relating to unemployment. Second, a review of the statute as a whole as well as the particular provision being considered reveals that the statutory exception is frequently revised and amended and should be considered as being still experimental in nature. See Larkin v Bay City Public Schools, 89 Mich App 199; 280 NW2d 483 (1979). Further, decisions subsequent to Manistee Bank, supra, have limited the application of the "substantial relation” test to the rather unique circumstances presented in that case. See Cruz v Chevrolet Grey Iron Division of General Motors Corp, 398 Mich 117; 247 NW2d 764 (1976), and McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414 (1977). In McAvoy, 453-454, the Supreme Court held:

"In the case at bar, it becomes immediately apparent the thrust of the legislation challenged is primarily social and economic. The legislation involved deals with property rights, not fundamental rights. Therefore, the burden is on the appellants to show the classification is arbitrary and does not bear a rational relation to the object of the legislation.”

Also see this Court’s opinions in Van Slooten v Larsen, 86 Mich App 437, 451; 272 NW2d 675 (1978), McDonald v Chrysler Corp, 68 Mich App 468; 242 NW2d 810 (1976), and Larkin v Bay City Public Schools, supra. In the Larkin opinion this Court declined to adopt the Manistee Bank standard when considering a challenge to a related application of the same section of the Act as being violative of equal protection guarantees, but rather concluded that the instant legislation was to be tested by the rational basis standard so that the classification should be sustained "if any state of facts reasonably can be conceived that would sustain it”. Larkin, supra 208.

It seems clear that under both the United States and Michigan Supreme Court standards for review this Court should determine whether or not there is any rational basis for the challenged classification created by § 27(i)(2) of the Act. See also Shavers v Attorney General, 402 Mich 554, 634; 267 NW2d 72 (1978).

It appears to be clear that the purpose of the Act is to provide benefits for persons who become involuntarily unemployed through no fault of their own. I M Dach Underwear Co v Employment Security Comm, 347 Mich 465; 80 NW2d 193 (1956), MCL 421.2; MSA 17.502. It is equally clear that the Legislature did not intend that all persons would be eligible for benefits regardless of their nonworking status. There are certain limits as to who can receive benefits, the maximum number of qualifying weeks to receive benefits, and the maximum amount of benefits receivable. Also there are other clearly delineated exceptions (MCL 421.43; MSA 17.547), and those that are not quite so clear (MCL 421.29[8]; MSA 17.531[8]), indicating a legislative intent not to protect all persons who might be in a position to claim involuntary unemployment. The Legislature chose to adopt a program denying benefits in certain instances and for certain reasons. The fact that the Legislature announced a program with sweeping objectives does not mean that statutory provisions resulting in clear exceptions to those goals cannot exist. Noblit v The Marmon Group, 386 Mich 652; 194 NW2d 324 (1972).

Without a clear statement by the Legislature of its intent in disqualifying plaintiffs from receiving unemployment compensation benefits it is impossible to say with certainty what the intent was. However, it is possible to articulate a significant reason for the statutory classification which denied benefits to the plaintiffs.

In Larkin v Bay City Public Schools, supra, this Court recently upheld a similar scheme against an equal protection challenge focusing on the disqualification of nonprofessional employees servicing local school districts. The Court found that protecting the fiscal integrity of the unemployment fund is a legitimate concern of the state. In citing Geduldig v Aiello, supra, and Ohio Bureau of Employment Services v Hodory, supra, this Court observed:

"The interest in maintaining a fiscally sound social welfare program by restricting the assessments which finance the system to reasonable levels has been upheld in recent years as a legitimate basis for the drawing of classifications resulting in the exclusion of various social services, including unemployment compensation.
"In the case at bar, the Legislature’s action was not arbitrary, but was rather designed to safeguard the stability of school district employment funds. We are unable to conclude that this classification bears no relationship to the ultimate function of the act of protecting the welfare of the people of Michigan.” Larkin, supra, 209, 210. (Footnote omitted, emphasis in original.)

The Court in Larkin went on to explain the distinction between nonprofessional employees of local school districts who are disqualified from receiving benefits and those same employees who are covered by the Act if they service the state schools for the blind or the deaf, or the State Technical Institute and Rehabilitation Center. Affirming that classification, this Court observed:

"* * * distinctions premised upon the greater taxing powers and broader financial resources of the state do not result in a denial of equal protection.” Larkin, supra, 210-211.

Clearly it would seem that this rationale is supportive of plaintiffs’ position since, in the case at bar, the plaintiffs are employees of the State of Michigan which possesses "greater taxing powers and broader financial resources” than the local school districts, thus minimizing the "fiscal integrity” argument. Nonetheless, there is no good reason why the state’s concern for the "fiscal integrity” of its own compensation plan is any less legitimate than its concern for the financial burden on local school districts. In fact, both Gedulig v Aiello, supra, and Ohio Bureau of Employment Services v Hodory, supra, involved situations in which the United States Supreme Court upheld the state’s interest in maintaining the fiscal integrity of a state disability insurance program and unemployment compensation benefit program, respectively.

The state’s failure to treat plaintiffs as it does other civil service employees who qualify for benefits during seasonal layoffs is not arbitrary and irrational. They are treated as are all other employees involved in the instruction and administration of local school and community college educational facilities. It appears that the Legislature has uniformly excluded some seasonal employees from unemployment benefits for the purpose of protecting the fiscal integrity of the compensation program and possibly because the Legislature held the opinion that employees know of the seasonal layoff well in advance (and may consider it an employment benefit) and are not faced with the same "economic crunch” as those who are unpredictably laid off during the year.

The challenged statutory provision meets not only the "rational basis” test, but also bears a "substantial relation” to the purpose of the law.

The trial court’s decision is affirmed.

Affirmed.


source: Caselaw Access Project

author: A. M. Bach, J.

license: Public Domain

text:
    GREAT LAKES STEEL DIVISION OF NATIONAL STEEL CORPORATION v PUBLIC SERVICE COMMISSION
    Docket No. 78-5424.
    Submitted November 14, 1979, at Lansing.—
    Decided January 9, 1980.
    Leave to appeal applied for.
    Great Lakes Steel Division of National Steel Corporation, General Motors Corporation, and the Michigan Energy Users Group are industrial energy customers of The Detroit Edison Company. The Michigan Public Service Commission granted Edison an interim revenue increase of $35 million to protect the public utility from unreasonable and irreparable losses which would be sustained if Edison had to await disposition of its request of $122.3 million as a permanent increase. In its opinion the commission declined to consider alterations in the rate structure to favor one group of consumers over others and concluded simply without explanation that a uniform surcharge of .96 mills per kwh was appropriate for all classes affected in view of the revenue deficiency. At the time of the commission’s interim order industrial users paid lower rates than residential customers. A flat surcharge of .96 mills meant that industrial users would be paying a greater proportion of the rate increase than if the surcharge were on a percentage increase of previous rates. The industrial customers attacked the commission’s method of surcharge as lacking support in the record, a requirement of the Administrative Procedures Act (APA). The commission believed that the rate design was discretionary, that the APA was not applicable to orders for partial and immediate relief and did not require specific findings and conclusions, that the surcharge was equitable and that the rate was based on substantial and material evidence in the record. Great Lakes, General Motors and Michigan Energy brought an action in Ingham Circuit Court seeking judicial review of the commission’s order. Detroit Edison intervened in this action. Jack W. Warren, J., affirmed the commission in a summary judgment and ruled further that the APA did not apply to orders for partial and immediate relief because such orders were not final. Plaintiffs appeal. Held:

      References for Points in Headnotes
    [1, 4] 64 Am Jur 2d, Public Utilities §§ 135, 273.

       64 Am Jur 2d, Public Utilities § 240.
    f3] 64 Am Jur 2d, Public Utilities § 240.

      The Administrative Procedures Act requires the public service commission to make findings of fact and conclusions of law when it issues a final decision or order concerning a public utility rate increase. A commission order for interim relief through a partial and immediate rate increase is final because it limits a utility’s revenue until a new and permanent rate structure is approved; therefore, a public service commission order for partial and immediate relief under the provisions of the statute providing for interim rate increases must conform to the findings of fact and conclusions of law requirements outlined for final decisions and orders of the APA. Neither the commission nor the circuit court applied the requirements of the APA in arriving at their conclusions. The case is remanded for compliance with the statute.
    Reversed and remanded with instructions.
    1. Public Service Commissions — Utilities — Rates — Contested Cases — Partial Increases — Final Orders — Statutes.
    A statute provides that a final decision or order of the Michigan Public Service Commission in a contested case shall be made within a reasonable period and shall include findings of fact and conclusions of law; a public utility’s request for relief in the form of a partial and immediate increase is a contested case and the statute applies where an order for interim relief can be characterized as final (MCL 24.285; MSA 3.560[185]).
    2. Public Service Commissions — Utilities — Rates — Discretion — Statutes.
    The Michigan Public Service Commission may, in its discretion, make a finding and enter an order granting a utility partial and immediate relief in the form of a rate increase (MCL 460.6a; MSA 22.13[6a]).
    3. Public Service Commissions — Rates — Retroactive Rates.
    The Michigan Public Service Commission may not establish retroactive rates thereby correcting any injustice caused by a delay in establishing necessary increased rates.
    4. Public Service Commissions — Utilities — Interim Rate Increases — Final Decisions and Orders — Statutes.
    A Michigan Public Service Commission order for interim relief through a rate increase can be considered final under the Administrative Procedures Act because it limits a utility’s revenue until a new permanent rate structure is approved; therefore, all Public Service Commission orders for partial and immediate relief under the provisions of the statute for interim rate increases must conform to the findings of fact and conclusions of law requirements outlined for final decisions and orders under the Administrative Procedures Act (MCL 24.285, 460.6a; MSA 3.560[185], 22.13[6a]).

      Hill, Lewis, Adams, Goodrich & Tait (by Robert A. W. Strong), for Great Lakes Steel Division.

      John M. Veale, for General Motors Corporation.

      Albert J. Thorburn, for Michigan Energy Users Group.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Arthur E. D’Hondt and Marvin L. Bromley, Assistant Attorneys General, for Michigan Public Service Commission.

      Fischer, Franklin, Ford, Simon & Hogg (by George Hogg, Jr., and Francis E. Bentley), for Detroit Edison Company.
    Before: T. M. Burns, P.J., and Cynar and A. M. Bach, JJ.

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

   A. M. Bach, J.

Plaintiffs, industrial energy customers, appeal from a decision of defendant Michigan Public Service Commission granting intervening defendant, The Detroit Edison Company, an interim rate increase in the form of a surcharge on electricity rates.

On July 20, 1977, Edison filed an application with the commission for a permanent rate increase of $122.3 million and for a partial and immediate revenue increase of $69.9 million, as provided by MCL 460.6a; MSA 22.13(6a). After conducting extensive hearings, the commission on February 17, 1978, allowed an interim revenue increase of $35 million. This interim rate hike, the commission found, would protect Edison from unreasonable and irreparable losses which would be sustained if Edison had to await disposition of its requests for a permanent increase.

In this initial opinion, the commission declined to consider alterations in the rate structure to favor one group of consumers over others. The commission refused the motion of intervenor Michigan Council of Senior Citizens’ Organizations to exempt from any surcharge the first 500 kwh per month for residential customers. At the end of the opinion on rate design, the commission concluded simply and without explanation:

"A uniform surcharge of .96 mills per kwh is appropriate for all classes affected, based on the revenue deficiency found herein.”

On March 8, 1978, plaintiffs as industrial users filed an application for rehearing and attacked the commission’s method of applying the rate surcharge. Under the rate structure in effect at the time of the interim order, plaintiffs paid lower rates than did residential customers. Therefore, a flat surcharge of .96 mills per kwh meant that plaintiffs would be assuming a greater proportion of the rate increase than if the surcharge were a percentage increase of previous rates. Plaintiffs attacked the commission’s method of surcharge as lacking support in the record, a requirement of § 85 of the Administrative Procedures Act (APA). MCL 24.285; MSA 3.560(185).

In response to plaintiffs’ application, the commission on April 10, 1978, denied rehearing. Although the commission’s staff had recommended that interim rate increases be spread on a percentage basis to each class of customers, the commission felt that rate design, especially for interim purposes, was a matter within its sole discretion, and that a surcharge per kwh was as equitable as any other interim design. The commission held that § 85 of the APA was not applicable to orders for partial and immediate relief and did not require specific findings and conclusions. But, in any event, the commission felt that the rate surcharge was based on substantial and material evidence in the record.

On December 13, 1978, the Ingham County Circuit Court affirmed the commission and ruled specifically that § 85 of the APA did not apply to orders for partial and immediate relief because such orders were not "final”. During the pendency of the circuit court action, the commission issued on Edison’s request a final order for a permanent rate increase.

Plaintiffs contend on appeal that § 85 of the APA does apply to interim rate increases and that the commission’s opinion in the present case does not conform to § 85 requirements. We agree.

Section 85 of the APA provides in part:

"A final decision or order of an agency in a contested case shall be made, within a reasonable period, in writing or stated in the record and shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. If a party submits proposed findings of fact which would control the decision or order, the decision or order shall include a ruling upon each proposed finding. Each conclusion of law shall be supported by authority or reasoned opinion. A decision or order shall not be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with the competent, material and substantial evidence.” MCL 24.285; MSA 3.560(185). (Emphasis supplied.)

Without question, a request for partial and immediate relief is a contested case. The applicability of § 85 therefore depends only on the characterization of an order for interim relief as "final”.

The statute authorizing an interim rate increase provides:

"[T]he commission * * * may in its discretion and upon written motion by such utility make a finding and enter an order granting partial and immediate relief, after first having given notice to the interested parties within the service area to be affected in the manner ordered by the commission, * * *.” MCL 460.6a; MSA 22.13(6a). (Emphasis supplied.)

The importance of such interim relief for utilities stems from the inability of the commission to award retroactive rate increases in a request for a permanent rate hike. The commission may not set a future rate to permit Edison to recover for a loss suffered in the past, as during the pendency of the permanent increase request. Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624; 209 NW2d 210 (1973), General Telephone Company of Michigan v Public Service Comm, 341 Mich 620; 67 NW2d 882 (1954), Michigan Bell Telephone Co v Public Service Comm, 315 Mich 533; 24 NW2d 200 (1946). In one sense, therefore, an order for interim relief is final because it limits the applicant’s revenue until a new permanent rate structure is approved.

In Attorney General v Public Service Comm, 392 Mich 660; 221 NW2d 299 (1974), this principle of finality was at least recognized when the Court ruled that a plaintiff requesting an interim rate increase may appeal as a matter of right to the Court of Appeals from a circuit court judgment under MCL 462.26; MSA 22.45. Compliance with § 85 of the APA by the commission will facilitate judicial review by insuring that the orders for interim rate increases are supported in fully reasoned opinions by evidence presented to, or principles considered and notified by, the commission.

The fact that in a permanent order the commission may at a later time adjust an interim rate and order the utility to make a refund does not suggest a contrary result. As explained in Michigan Bell Telephone Co v Public Service Comm, 85 Mich App 163, 166; 270 NW2d 546 (1978), if new rate determinations were to render moot contested issues in prior appeals, the entire review scheme would be rendered a nullity. The commission usually issues permanent rate orders prior to the conclusion of judicial review of the interim rate. For the sake of consistency, an interim order should not be final as against a utility which may not secure retroactive rates at a later date and not final for another aggrieved party which seeks relief. That haphazard application of § 85 would only confuse the commission’s operations. Section 85 of the APA must apply to all orders for partial and immediate relief under MCL 460.6a; MSA 22.13(6a).

Review of the record in the present case indicates that neither the commission nor the circuit court applied the requirements of § 85 in arriving at their conclusions. The cause must therefore be remanded for compliance with the APA.

On remand, the commission may, if necessary, hear further arguments on the question of the method of allocating the surcharge among different classes of users. Any conclusion must be supported by reasoned opinion. The commission need not, in making a determination on a request for partial and immediate relief, have before it the type of plenary, expert analysis which the staff prepares on an application for a permanent rate increase. That construction of § 85 would thoroughly undermine the commission’s authority under MCL 460.6a; MSA 22.13(6a) to act without delay in order to prevent irreparable harm to the utility. See Attorney General v Public Service Comm, 63 Mich App 69, 77; 234 NW2d 407 (1975). In deciding how to allocate the surcharge among classes of customers, the commission may notice and consider facts drawn from its expertise and from general knowledge, as well as evidence presented by the parties. Cf. St Paul Area Chamber of Commerce v Minnesota Public Service Comm, 251 NW2d 350, 355 (Minn, 1977).

In arriving at our conclusions on the applicability of § 85 of the APA, we decline to express an opinion on the merits of the surcharge of .96 mills per kwh. After reconsideration of the surcharge question, the commission is free to arrive at the same result as before, provided the opinion complies with § 85.

If plaintiffs are aggrieved by the commission’s new order, they may sue in Ingham County Circuit Court on the grounds that the rate is unlawful or unreasonable, or is not supported by competent, material, and substantial evidence on the whole record. MCL 462.26; MSA 22.45, Const 1963, art 6, §28.

The circuit court order of December 13, 1978, in this cause is reversed and the matter is remanded to the Public Service Commission for proceedings consistent with this opinion. No costs, a public question.

       In at least one prior decision of this Court the applicability of § 85 to interim rate increases was assumed but never stated. Attorney General v Public Service Comm, 63 Mich App 69, 76; 234 NW2d 407 (1975).

       An added consideration is that the doctrine of mootness does not control where issues of continuing public interest, and open to repetition, may never be subject to review. See Southern Pacific Terminal Co v Interstate Commerce Comm, 219 US 498; 31 S Ct 279; 55 L Ed 310 (1911).


author: Per Curiam.

text:
    CHOIKE v CITY OF DETROIT
    Docket No. 78-854.
    Submitted October 2, 1979, at Detroit.
    -Decided January 9, 1980.
    Leave to appeal applied for.
    Detroit city fire fighters James Choike, Larry McNeill, Donald Kirk and Robert Wiltsie had their positions in the Detroit Fire Department vacated by the Detroit Civil Service Commission for violating a residency requirement for Detroit fire fighters. The four fire fighters and Detroit Fire Fighters Association, Local 344, I.A.F.F., AFL-CIO, brought an action against the City of Detroit, the individual members of the Civil Service Commission of the City of Detroit, the Civil Service Commission of the City of Detroit and the Personnel Director of the City of Detroit seeking an order of superintending control ordering the reinstatement of the four fire fighters. Wayne Circuit Court, Harry J. Dingeman, Jr., J., denied the request as to plaintiffs Choike and McNeill, but ordered the reinstatement of plaintiffs Kirk and Wiltsie. Plaintiffs Choike, McNeill and Local 344 appeal the denial of reinstatement as to Choike and McNeill and the defendants cross-appeal from the order for the reinstatement of plaintiffs Kirk and Wiltsie. On appeal, the plaintiffs allege that 1) the Detroit Civil Service Commission lacked jurisdiction to vacate plaintiffs’ positions, 2) plaintiffs were denied due process because they were not given copies of the transcripts of the hearing or the hearing officer’s report until after the Civil Service Commission had reached its decision, and 3) the decision of the commission was based on an improper legal standard and was unsupported by competent, material and substantial evidence on the whole record. Held:

    1. According to case precedent the Detroit Civil Service Commission has the authority to declare the plaintiffs’ positions vacant for a failure to comply with the city’s residency requirement.
    2. The plaintiffs were given proper notice of all relevant proceedings and were allowed to present their cases fully before both the hearing officer and the full Civil Service Commission. The requirements of due process in the setting of an administrative hearing were satisfied.

      References for Points in Headnotes

       15A Am Jur 2d, Civil Service § 28.

       25 Am Jur 2d, Domicil § 24 et seq.

       25 Am Jur 2d, Domicil §§ 24 et seq., 85.

       25 Am Jur 2d, Domicil § 87.

      3. The burden of proof in a residency case rests with the city, not with the employee. The circuit court recognized the correct legal standard, but improperly concluded that the city had met its burden of proof with respect to Choike and McNeill. The evidence presented consisted mainly of hearsay. The record as a whole fails to establish by competent, material and substantial evidence that Choike was not a Detroit resident. The trial court erred in shifting the burden of proof to McNeill in light of the evidence presented on the issue of McNeill’s residency. The trial court correctly ruled that the city failed to establish that Kirk and Wiltsie had failed to comply with the residency requirement.
    Affirmed in part, reversed in part and remanded.
    1. Domicile — Residence — Residency Requirements — Civil Service Employment.
    The Detroit Civil Service Commission has the authority to declare vacant the position of a city fire fighter who fails to comply with the city’s residency requirement.
    2. Domicile — Residence — Intent.
    The determination of domicile or residence is essentially a question of intent which is to be decided after careful consideration of all relevant facts and circumstances.
    3. Domicile — Residence — Residence of Family — Married Men.
    The residence of one’s family is relevant to the determination of one’s residence but it is not the sole determining factor; it is possible for a married man to establish residence apart from that of his family.
    4. Domicile — Residence — Residency Requirements — Burden of Proof — Discharge of Employees.
    A city which seeks to discharge city employees for noncompliance with the city’s residency requirements has the burden of proof on the issue of residency, not the employee.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by Theodore Sachs and Kent G. Cprek), for plaintiffs.

      George G. Matish, Deputy Corporation Counsel, and Kenneth G. King, Assistant Corporation Counsel, for defendants.
    Before: T. M. Burns, P.J., and Bronson and R. M. Maher, JJ.
   Per Curiam.

Plaintiffs James Choike, Larry Mc-Neill and Detroit Fire Fighters Association, Local 344, I.A.F.F., AFL-CIO, appeal as of right an order of the circuit court denying their request for a writ of superintending control ordering defendant City of Detroit, through its Civil Service Commission, to reinstate plaintiffs Choike and McNeill in their former positions as Detroit city fire fighters. The defendants cross-appeal the trial court’s grant of superintending control ordering the city to reinstate two other fire fighters, Donald Kirk and Robert Wiltsie.

This case once again presents us with questions concerning the application of the City of Detroit’s residency requirement. Detroit Municipal Code, § 2-1-1.3. The individual plaintiffs’ positions in the Detroit Fire Department were vacated by the Detroit Civil Service Commission upon a finding that they were not residents of the City of Detroit. On appeal to the circuit court, the commission’s determinations as to plaintiffs Choike and McNeill were upheld. On appeal to this Court, these plaintiffs raise three issues.

Plaintiffs first allege that the Detroit Civil Service Commission lacked jurisdiction to vacate their positions. In Gantz v Detroit, 392 Mich 348; 220 NW2d 433 (1974), the Supreme Court construed the same Detroit residency ordinance with which we are involved in the instant case. After noting that the validity of the Detroit residency requirement had been upheld in Williams v Civil Service Comm of the City of Detroit, 383 Mich 507; 176 NW2d 593 (1970), the Court proceeded to deal with a question that had been left open in Williams; whether the commission also had the authority to enforce the requirement by declaring vacant the positions of offending employees. The Gantz Court held that it did, distinguishing the commission’s ability to determine whether an employee continues to be eligible for city employment from the hiring authority’s power to discharge an employee for disciplinary or other job-related problems. Plaintiffs in the instant case attempt to distinguish Gantz on the basis that it involved an employee in the city controller’s office, and would have us rely instead on the opinion of the circuit court in Grable v Detroit, Plaintiffs’ position that Grable is res judicata in all cases involving Detroit fire fighters is totally without merit. Gantz was decided more than two years after the circuit court’s opinion in Grable, and more than a year after this Court’s opinion. It is in no way limited to employees in the controller’s office. We hold that Gantz is controlling, and that the Detroit Civil Service Commission had the authority to declare the plaintiffs’ positions vacant for noncompliance with the residency requirement.

Plaintiffs next argue that they were denied due process because they were not given copies of the transcripts of the hearing, or the hearing officer’s report, until after the Civil Service Commission had reached its decision. This issue is also without merit. Plaintiffs were given notice of all relevant proceedings, and were allowed to present their cases fully before both the hearing officer and the full Civil Service Commission. The requirements of due process in the setting of an administrative hearing were satisfied. Napuche v Liquor Control Comm, 336 Mich 398; 58 NW2d 118 (1953).

Plaintiffs finally argue that the decision of the commission was based on an improper legal standard and was unsupported by competent, material, and substantial evidence on the whole record. See Const 1963, art 6, § 28, Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116; 223 NW2d 283 (1974). To the extent that the commission presumed the plaintiffs’ nonresidency based on the residency of their families, this was error. Grable v Detroit, 48 Mich App 368; 210 NW2d 379 (1973). The issue of a person’s domicile (which Detroit Municipal Code § 2-1-1.2 makes the equivalent of residency) is principally a question of intent, and is resolved by reference to all the facts and circumstances of the particular case. The domicile of a person’s family is only one factor to be considered, since it is possible for a person to be domiciled apart from his or her spouse and children. The burden of proof in a residency case rests with the city, and not the employee. Masters v Highland Park, 79 Mich App 77; 261 NW2d 215 (1977), aff'd 402 Mich 907 (1978).

The circuit court recognized the correct legal standard but, after analyzing the factors for and against each determination of nonresidency, concluded that the city had met its burden with respect to Choike and McNeill. The evidence presented consisted largely of hearsay. Concerning Choike, it tended to show that he owned a home with his wife in Lake Orion, where his wife and children reside. Choile stated that he rents a room from his sister and brother-in-law in Detroit, where he lives, is registered to vote, receives mail, and maintains a telephone. The evidence that most directly went to the issue of Choike’s domicile, "where he normally eats and sleeps and maintains his normal personal and household effects” consisted of an investigator’s report that on eight of 24 occasions of surveillance at the Lake Orion address, a person believed to be Choike was seen leaving in the morning. Furthermore, four of these eight days were Choike’s days off work. Choike stated that he does normally eat at his Detroit address, and that he keeps his personal belongings there. We hold that the record as a whole fails to establish by competent, material, and substantial evidence that Choike is not a Detroit resident, and that the trial court abused its discretion in holding that the city had met its burden of proof. The issue is where Choike is domiciled. The fact that he owns property outside of Detroit, and that his family is domiciled there, while relevant to the determination of this issue, does not and cannot alone establish that Choike is domiciled there. The investigator’s testimony concerning those occasions that a person believed to be Choike was observed at the Lake Orion address is insufficient to support the conclusion that Choike "normally” lives there.

Much of the evidence concerning McNeill is similar. His wife and children live in South Lyon, while he states that he lives with his mother in Detroit. Various licenses, registrations, and utilities list either the South Lyon or the Detroit address. McNeill’s case differs, however, in two essential respects. First, McNeill stated that from 1970 until February of 1975 he spent two nights a week on the job, two nights at his mother’s house, and the remaining three nights at the South Lyon Home. In February of 1975, McNeill’s wife filed for divorce, and he states that he moved his things to the Detroit address at that time, returning only occasionally to South Lyon to visit his children and to pursue a wallpapering job. The trial court held that under these circumstances, the burden had shifted to McNeill to show that he had reestablished his domicile in Detroit. Second, no surveillance was conducted at either the South Lyon or Detroit addresses.

.We hold that the trial court erred in shifting the burden to McNeill. McNeill stated that he left the South Lyon home to establish a domicile in Detroit in February of 1975, approximately a year and a half before the hearing on his residency. The purpose of the hearing was to determine his residency status at that time, and not at some previous time. The city had the burden of showing that, at the time of these proceedings, McNeill was not a Detroit resident. The evidence presented fails to establish that at the time of the hearing McNeill was not a resident since it fails to establish that he normally eats, sleeps, and keeps his personal belongings somewhere other than Detroit.

The trial court is affirmed as to Kirk and Wiltsie, and is reversed as to Choike and McNeill. This cause is remanded for entry of appropriate orders reinstating Choike and McNeill to their positions in the Detroit Fire Department.

Affirmed in part, reversed in part and remanded.

       Suit was filed in the circuit court on behalf of four fire fighters, each of whom had been determined to be nonresidents by the Detroit Civil Service Commission. The trial court affirmed the commission with respect to Choike and McNeill, but ordered Kirk and Wiltsie reinstated. While the city purports to be cross-appealing the reinstatement of Kirk and Wiltsie, only passing reference is made to them in the city’s brief. Failure to brief an allegation of error results in an abandonment of allegation. Mitcham v Detroit, 355 Mich 182, 202-203; 94 NW2d 388 (1959). In any event, we affirm the trial court’s order reinstating Kirk and Wiltsie.

       The ordinance states in part:
      "All police officers, appointees in the unclassified service, except the director of the zoo and superintendent of the House of Correction, and all persons working in any branch of the classified service of the city shall reside in the city.”
      "Residence” was defined in Detroit Municipal Code, § 2-1-1.2:
      "Residence shall be construed to be the actual domicile of the individual where he normally eats and sleeps and maintains his normal personal and household effects.”

        Gantz reached the Supreme Court a second time, but on the factual issue of plaintiffs residency. 399 Mich 649; 252 NW2d 764 (1977).

       On plaintiffs appeal to this Court, the issue of the commission’s authority to vacate the positions of nonresident employees was not decided. Grable v Detroit, 48 Mich App 368; 210 NW2d 379 (1973).


author: Per Curiam. R. M. Maher, P.J.

text:
    PEOPLE v BLACKBURN
    Docket No. 78-929.
    Submitted November 6, 1979, at Lansing.
    Decided January 9, 1980.
    William Blackburn was convicted of three counts of armed robbery, Oakland Circuit Court, Robert L. Templin, J. Defendant appeals, alleging that his right not to be placed in double jeopardy was violated because he had been tried earlier on the same charges in a trial which had ended when the trial court granted a defense motion for a mistrial after the jury failed to return a verdict. Held:

    1. In the first trial the jury requested that certain portions of the testimony be reread to them. This request was refused. When, after renewed deliberations, the jury failed to reach a verdict, defense counsel made a motion for a mistrial, which the court granted on the basis of manifest necessity. The grant of the motion on that basis was an abuse of discretion where the trial court had refused what appears to be a reasonable request from the jury.
    2. The second trial was not barred by double jeopardy, however, because the motion for a mistrial in the first trial was made by defense counsel, and consent by the defense to a mistrial effectively eliminates the bar of double jeopardy.
    Affirmed.
    R. M. Maher, P.J., dissented. He would hold that the waiver of double jeopardy protection requires the personal consent of a defendant, and that absent a manifestation in the record of such personal consent by the defendant, reprosecution is barred. He would reverse.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 176, 179, 180, 195.
    Propriety and effect as double jeopardy, of court’s grant of new trial on own motion in criminal ease. 85 ALR2d 486.

       21 Am Jur 2d, Criminal Law §§ 179, 180, 194. .

       21 Am Jur 2d, Criminal Law § 207.

       21 Am Jur 2d, Criminal Law § 195.
    What constitutes accused’s consent to court’s discharge of jury or to grant of state’s motion for mistrial which will constitute waiver of former jeopardy plea. 63 ALR2d 782.

      Opinion of the Court
    1. Criminal Law — Double Jeopardy.
    A defendant is placed in jeopardy once a jury is empaneled and sworn, and the defendant then has a right to have his guilt weighed finally by that tribunal; the state is precluded from bringing him to trial again for the same offense unless the defendant consents to the trial’s interruption or a mistrial occurs because of manifest necessity.
    2. Criminal Law — Mistrial — Manifest Necessity.
    A mistrial may be declared on the basis of manifest necessity when the trial judge, in his discretion, concludes that the ends of public justice would not be served by a continuation of the proceedings.
    3. Criminal Law — Mistrial — Manifest Necessity — Jury Deadlock.
    A trial court abused its discretion by declaring a mistrial on the basis of manifest necessity where the jury failed to reach a verdict after the court refused the jury’s request for certain portions of the testimony to be read back.
    4. Criminal Law — Mistrial — Double Jeopardy — Consent to Mistrial.
    A defense counsel’s concurrence in a prosecutor’s motion for a mistrial effectively eliminates the bar of double jeopardy against reprosecution of the defendant on the same charges, and the absence of the defendant’s personal consent does not necessarily reflect the absence of his primary control over the proceedings; therefore, a defendant was not placed in double jeopardy by being tried a second time where his first trial ended when the court granted a motion for mistrial made by defense counsel.
    Dissent by R. M. Maher, P.J.
    5. Criminal Law — Double Jeopardy — Waiver — Mistrial.

      Waiver of the protection against double jeopardy requires a personal manifestation of consent to such a waiver by the defendant; absent such a manifestation that a defendant consented to a motion for a mistrial made by defense counsel after the jury failed to reach a verdict, reprosecution of the defendant is barred by the prohibition against double jeopardy.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.

      John D. Lazar, for defendant on appeal.
    Before: R. M. Maher, P.J., and Mackenzie, and J. H. Piercey, JJ.

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

   Per Curiam.

Defendant was convicted of three counts of armed robbery, MCL 750.529; MSA 28.797, by an Oakland County Circuit Court jury. He was sentenced to 60 to 90 years imprisonment on one count and life imprisonment on each of the other two counts, the sentences to run concurrently. From these convictions and sentences, defendant appeals as of right.

The first trial on these charges was dismissed when the jury indicated that it could not reach unanimous agreement and defense counsel moved for a mistrial. Now, defendant argues that his double jeopardy rights were violated by the second trial. Defendant maintains that there was no manifest necessity for the mistrial; instead, the trial court forced it by refusing to honor a legitimate jury request for a rereading of the transcript. Further, defendant contends that the fact that defense counsel approved and/or requested a mistrial is of no significance since the record fails to indicate that defendant himself played any role in consenting to his counsel’s actions.

Once a jury is empaneled and sworn a defendant is placed in jeopardy. United States v Jorn, 400 US 470, 479; 91 S Ct 547, 554; 27 L Ed 2d 543, 553 (1971), People v Gardner, 37 Mich App 520; 195 NW2d 62 (1972). When a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. Unless he consents to the trial’s interruption, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976).

' The doctrine of manifest necessity allows a trial judge to declare a mistrial when a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v Dinitz, 424 US 600, 607; 96 S Ct 1075; 47 L Ed 2d 267 (1976), and People v Williams, 85 Mich App 258, 262-263; 271 NW2d 191 (1978). We review this trial court determination, then, under an abuse of discretion standard, People v Robertson, 87 Mich App 109; 273 NW2d 501 (1978).

The record of the first trial reveals that after deliberating for a short time the jury indicated they were "hopelessly deadlocked”. The trial judge urged agreement if at all possible, with due respect for the rights of the people and the defendant, and sent the jury back for further deliberation. Shortly thereafter, the jury returned with a request for a rereading of the testimony of certain witnesses. The court replied:

"The answer to that is to read back only certain portions of testimony is not allowed, it is improper and the reason is that emphasizes certain portions of testimony and might de-emphasize others. To get the entire transcript it would take as long to prepare that as it took to try the case. Obviously, the reporter would have to type it and take more than a week to do it. I cannot have just portions of the testimony transcribed.”

Thereafter, when the jury still could not reach agreement after a third round of deliberations, defense counsel moved for, and the trial court declared, a mistrial.

Reserving the question of the effect of defense counsel’s motion, we hold the trial court abused its discretion in declaring a mistrial on manifest necessity grounds. Although the failure of a jury to reach a verdict has been held sufficient to establish a manifest necessity in some circumstances, see United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824), such a ruling is not in order on the facts of this case.

In People v Howe, 392 Mich 670; 221 NW2d 350 (1974), a similar situation was presented. There, the jury requested that the testimony of two witnesses be read back. The trial judge refused this request on the basis that to give jurors bits of testimony puts too much emphasis on it. In reversing the trial court, the Supreme Court in Howe stated:

"A trial court must exercise its discretion to assure fairness and to refuse unreasonable requests; but, it cannot simply refuse to grant the jury’s request for fear of placing too much emphasis on the testimony of one or two witnesses.” 392 Mich at 676.

Just as in Howe, the instant trial judge did not indicate that he thought the request was unreasonable. Neither did he ask the jury to resume deliberations with the knowledge that their request would again be reviewed if the jury members continued to find it necessary to rehear certain testimony. Accordingly, just as in Howe, we find the trial judge abused his discretion by failing to properly consider what appears to have been a reasonable request on the part of the jury. See also People v Bloom, 76 Mich App 405, 409; 257 NW2d 105 (1977).

As stated above, however, this does not end our inquiry. The state is not barred from reprosecution when a mistrial is declared out of manifest necessity or upon defendant’s consent. See Alvin Johnson, supra, 431. Defendant now argues that he never personally consented to the motion for mistrial made in his behalf by defense counsel.

An identical claim was raised in People v Hoffman, 81 Mich App 288; 265 NW2d 94 (1978). The Hoffman Court surveyed the case law in this area and concluded that the concurrence by defense counsel in a prosecutorial motion for mistrial effectively eliminated the bar of double jeopardy. Moreover, in Hoffman, although this Court encouraged trial courts to elicit the express consent of defendants to mistrials, it did not believe that the absence of a defendant’s personal consent necessarily reflected the absence of his primary control over the proceedings. We are in accord with these conclusions. Accordingly, we find that defendant’s second trial was not barred by double jeopardy. The remaining allegations raised by defendant are of little merit and do not warrant our further consideration.

Affirmed.

R. M. Maher, P.J.

(dissenting). I must dissent from the result reached by the majority on the issue of double jeopardy. For the reasons stated in my concurring opinion in People v Hoffman, 81 Mich App 288; 265 NW2d 94 (1978), I read People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), to require a personal manifestation by the defendant that he or she consents to a waiver of the protection against double jeopardy. The record herein does not disclose a statement to that effect by the defendant, nor a demonstration that defense counsel consulted with his client prior to making his motion for a mistrial. I would therefore hold that reprosecution of the defendant is barred by the constitutional prohibition of double jeopardy.

I would reverse.


author: Per Curiam. Cynar, P.J.

text:
    PEOPLE v DUCKETT
    Docket No. 78-2842.
    Submitted October 3, 1979, at Grand Rapids.—
    Decided January 9, 1980.
    Defendant, Anthony L. Duckett, was convicted of armed robbery and felony-firearm in the Kalamazoo Circuit Court, C. H. Mullen, J. Defendant appeals, alleging that his convictions violate the constitutional double-jeopardy prohibition and that his felony-firearm conviction under the aiding and abetting statute was improper. Held:

    1. A defendant who is found to have committed a felony not excluded from the scope of the felony-firearm statute and then found guilty of possession of a firearm during the commission of that felony is not thereby subjected to double jeopardy.
    2. One not in possession of a firearm may be punished as an aider and abbetor to a felony-firearm offense since: 1) the purpose of the aider and abettor statute is to punish those who had counseled, aided or abetted in the commission of an offense in the same manner as if they had actually committed the offense, and such purpose is furthered by applying the statute to one who aids and abets the possession of a firearm in the course of a felony; 2) the aider and abettor statute applies to all offenses and is not limited in any way; 3) there is no indication that the Legislature intended to exclude the possibility of an aider and abettor to the crime of possession of a firearm during the course of a felony since it specifically excluded some other crimes from the scope of the statute; and 4) punishing aiders and abettors of the crime of felony-firearm is consistent with and would help to further the felony-firearm statute’s purpose of deterring the use of handguns during the course of felonies.
    Affirmed.
    Cynar, P.J., concurred, noting that the purposes of the felony-firearm statute are to deter the use of firearms during the course of a felony and punish those who possess firearms in the perpetration of a felony, thereby attempting to reduce the possibility of injury to victims, passersby and the police.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 182, 189.

       21 Am Jur 2d, Criminal Law §§ 120-124.

       79 Am Jur 2d, Weapons and Firearms § 8.

      Opinion op the Court
    1. Criminal Law •— Constitutional Law — Felony-Firearm — Double Jeopardy — Statutes.
    A defendant who is found to have committed a felony not excluded from the scope of the felony-firearm statute and then found guilty of possession of a firearm during the commission of that felony is not thereby subjected to double jeopardy (MCL 750.227b; MSA 28.424[2]).
    2. Criminal Law — Aiding and Abetting — Felony-Firearm — Possession op Firearm — Statutes.
    One not in possession of a firearm may be punished as an aider and abettor to a felony-firearm offense since: 1) the purpose of the aider and abettor statute is to punish those who had counseled, aided or abetted in the commission of an offense in the same manner as if they had actually committed the offense, and such purpose is furthered by applying the statute to one who aids and abets the possession of a firearm in the course of a felony; 2) the aider and abettor statute applies to all offenses and is not limited in any way; 3) there is no indication that the Legislature intended to exclude the possibility of an aider and abettor to the crime of possession of a firearm during the course of a felony since it specifically excluded some other crimes from the scope of the statute; and 4) punishing aiders and abettors of the crime of felony-firearm is consistent with and would help to further the felony-firearm statute’s purpose of deterring the use of handguns during the course of felonies (MCL 750.227b, 767.39; MSA 28.424[2], 28.979).
    Concurrence by Cynar, P.J.
    3. Criminal Law ■— Felony-Firearm — Purpose of Statute —• Underlying Felonies — Statutes.

      The purpose of the felony-ñrearm statute is to deter the use of handguns during the course of a felony and to assure the punishment of persons who possess handguns during the perpetration of a felony; the statute as written may act to deter the underlying felony itself by punishing the possession as opposed to the use of a Brearm during the commission of the felony; the statute’s goal of deterrence, which is essentially directed toward the use of Brearms during felonies, may extend to the underlying felony itself, by virtue of the prohibition against the

      possession of a firearm during the course of a felony (MCL 750.227b; MSA 28.424.[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judy A. Hughes, Assistant Prosecuting Attorney, for the people.

      Kenneth V. Miller, for defendant.
    Before: Cynar, P.J., and D. F. Walsh and L. B. Bebeau, JJ.

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

   Per Curiam.

Defendant was convicted by jury on May 18, 1978, of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On June 19, 1978, defendant was sentenced to prison terms of one to five years for armed robbery and two years on the felony-firearm count, and now appeals of right.

Defendant’s allegation that his felony-firearm conviction violates the Michigan and United States constitutional prohibitions against being twice placed in jeopardy for the same offense (Const 1963, art 1, § 15; US Const, Am V) is without merit. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Defendant next maintains that his felony-firearm conviction under the aiding and abetting statute, MCL 767.39; MSA 28.979, was improper because application of the felony-firearm statute should be limited to the person who actually possessed the firearm. In the case at bar it is undisputed that only defendant’s accomplice wielded the firearm used during commission of the crime.

This Court is presently not in harmony on the question of whether one not in actual possession of a firearm during commission of a felony may properly be convicted of the crime of "felony-firearm” as an aider and abettor. In People v Walter Johnson, 85 Mich App 654, 658; 272 NW2d 605 (1978), the majority opinion interpreted the felony-firearm statute "to require that a defendant personally carry or have in his possession a firearm” in order to justify a conviction under the felony-firearm statute. (Emphasis in original.) Judge N. J. Kaufman, dissenting, recognized no impropriety in applying the theory of accessory liability to an individual who does not actually possess a firearm utilized in an armed robbery.

This Court in People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), noted with approval that part of Judge Kaufman’s dissenting opinion, and then adduced further reasons of its own in support of its conclusion that one who does not actually possess the firearm utilized during commission of a felony may nevertheless validly be convicted of "felony-firearm” as an aider and abettor.

After carefully evaluating the Walter Johnson and Tavolacci opinions, we accept as more persuasive the legal reasoning enunciated in Tavolacci and in the dissenting opinion in Walter Johnson. We perceive no legal impropriety in the application to defendant of accessory liability under the felony-firearm statute.

Affirmed.

Cynar, P.J.

(concurring). While concurring, I feel the following additional observations are appropriate. This writer, in People v Elowe, 85 Mich App 744, 748; 272 NW2d 596 (1978), wrote for affirmance of a conviction where the defendant, who was involved in a delivery of a controlled substance, did not use but did possess a firearm on his person during the commission of that felony. It was pointed out in Elowe that the purposes of the felony-firearm statute are to deter the use of firearms during the course of a felony and to punish those who possess firearms in the perpetration of a felony, thereby attempting to reduce the possibility of injury to victims, passersby and police officers.

Further, when based upon a sufficient factual basis, one not in possession of a firearm may be convicted as an aider and abettor to a felony-firearm offense. See my opinion in People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979).

Finally in People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), my dissent supports affirmance of convictions for armed robbery, MCL 750.529; MSA 28.797, and for possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). There was a substantial factual basis in Powell to support the acceptance of a guilty plea to aiding and abetting the offense of felony firearm.

The purpose of the firearm legislation is the same whether it involves use, possession, or aiding and abetting. The purpose is to deter criminal activity which so often causes injury and death to people who are victims of crime or otherwise innocent of any wrongdoing.


text:
    PEOPLE v BRIGGS
    Docket No. 78-3045.
    Submitted June 11, 1979, at Grand Rapids.—
    Decided January 9, 1980.
    Jerome Briggs was charged with assault with intent to do great bodily harm less than murder, armed robbery and possession of a firearm during the commission of a felony. Defendant entered into a plea bargain agreement whereby, in exchange for his guilty plea to the armed robbery charge, the assault and firearm charges would be dropped, the prosecutor would recommend that the prison sentence would not exceed 12 to 25 years and the prosecutor would not bring a habitual offender charge against defendant. Defendant thereafter offered his plea of guilty to armed robbery in Calhoun Circuit Court, Creighton R. Coleman, J. At the sentencing hearing, the judge advised defendant that he had not agreed to the prosecutor’s sentence recommendation and ultimately sentenced defendant to a prison term of from 20 to 40 years. Defendant appeals raising four assignments of error, arguing: that the prosecutor had no authority to incorporate into the plea bargain an agreement not to charge defendant as a habitual offender, that he should have been given an opportunity to withdraw his guilty plea when the judge decided not to follow the prosecutor’s sentence recommendation, that error arose out of an in-chambers conference between defense counsel and the judge and that he was denied his right to allocution prior to sentencing. Held:

    1. A plea bargain may properly include an agreement by the prosecutor not to charge defendant as a habitual offender. No error results from the inclusion of such an agreement, particularly where there is no evidence in the record that the prosecutor threatened to charge defendant as a habitual offender if defendant exercised his right to a trial and was convicted.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 484 et seq.

    Right to withdraw guilty plea in state criminal proceedings where court refuses to grant concession contemplated by plea bargain. 66 ALR3d 902.

       21 Am Jur 2d, Criminal Law § 503 et seq.

       21 Am Jur 2d, Criminal Law §§ 290, 303.

       21 Am Jur 2d, Criminal Law § 530.

      2. Principles of fairness dictate that the defendant should have been given an opportunity to withdraw his guilty plea upon learning that the judge did not intend to adopt the prosecutor’s sentence recommendation. The failure of the trial court to permit defendant the opportunity to withdraw his guilty plea upon informing the defendant that the sentence recommendation by the prosecutor was not going to be followed mandates remand to the circuit court, where the defendant shall be given the opportunity to either affirm or withdraw his guilty plea.
    3. A sentencing conference between defense counsel and the sentencing judge is not a critical stage in the criminal proceedings at which defendant has a right to be present.
    4. Remand for resentencing is mandated where the record supports the assertion that the defendant was denied his right to allocution prior to sentencing.
    Remanded.
    1. Criminal Law — Plea of Guilty — Habitual Offenders — Guilty Plea Agreement.
    A plea bargain between a defendant and the prosecution may properly contain a provision whereby the prosecution agrees not to charge the defendant as a habitual offender.
    2. Criminal Law — Plea of Guilty — Agreement as to Sentence — Withdrawal of Plea — Inducement of Plea.
    A criminal defendant must be given the opportunity to withdraw his plea of guilty where the sentencing judge determines that he will not follow the prosecution’s sentence recommendation which was part of the plea agreement which induced the guilty plea.
    3. Criminal Law — Sentences — Sentencing Conference •— Critical Stage.
    A criminal defendant need not be present at a conference held between defense counsel and the sentencing judge prior to the sentencing hearing, since such a conference is not a critical stage in the criminal proceedings.
    4. Criminal Law — Sentences — Right of Allocution — Court Rules.
    Remand for resentencing is mandated where the record supports the assertion that a defendant was denied his right to allocution prior to sentencing.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James D. Norlander, Prosecuting Attorney, Ronald A. Lebeuf, Chief Assistant Prosecuting Attorney, for the people.

      Dominick Sorise, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

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

   Per Curiam.

Defendant appeals his plea-based conviction of armed robbery, MCL 750.529; MSA 28.797. He was sentenced, on May 31, 1978, to a prison term of 20 to 40 years.

Defendant was originally charged with assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during commission of a felony, MCL 750.227b; MSA 28.424(2). On May 3, 1978, he entered a plea of guilty to the charge of armed robbery in exchange for: (1) dismissal of the assault and firearm charges, (2) the prosecutor’s recommendation of a prison sentence not to exceed 12 to 25 years, and (3) the prosecutor’s agreement not to bring an habitual offender charge against defendant.

On appeal defendant challenges the prosecutor’s authority to incorporate into the plea bargain an agreement not to charge defendant as an habitual offender. We find no error. Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978), People v Roderick Johnson, 86 Mich App 77; 272 NW2d 200 (1978). Moreover, there is no evidence in 'the record that the prosecutor threatened to charge defendant as an habitual offender if he exercised his right to a trial and was convicted. See People v John Alexander, 82 Mich App 486; 266 NW2d 489 (1978).

At the sentencing hearing, the judge advised defendant that he had not agreed to the prosecutor’s sentence recommendation. Ultimately the judge chose not to follow the recommendation of a 12 to 25 year sentence and sentenced defendant to a prison term of 20 to 40 years. On appeal defendant contends that he should have been given an opportunity to withdraw his guilty plea when the judge decided not to follow the prosecutor’s sentence recommendation. We agree.

We see no significant distinction between the instant situation and a case in which the judge specifically indicates to the defendant at the plea-taking proceeding that he will follow the sentence recommendation only if the presentence report does not convince him otherwise. It has been recommended that, in the latter situation, the judge who ultimately decides not to follow the sentence recommendation shall "call upon the defendant to either affirm or withdraw his plea of guilty”. ABA Standards, Pleas of Guilty, § 3.3(b) (Approved Draft, 1968). In both situations, principles of fairness dictate that the defendant be given an opportunity to withdraw his plea upon learning that the sentence recommendation, which played at least a partial role in his decision to forego trial and plead guilty, will not be followed. From the defendant’s viewpoint, the degree of perceived unfairness does not hinge on subtle distinctions concerning the precise nature of the judge’s conditional concurrence in the plea bargain. We, therefore, remand this matter to the circuit court, where defendant will be given an opportunity to either affirm or withdraw his guilty plea.

Defendant also maintains on appeal that the sentencing procedure was defective because he was absent from a conference held in chambers, prior to sentencing, between the judge and defense counsel. Defendant cites no authority supporting his contention that a sentence conference between his counsel and the sentencing judge is a critical stage in the criminal proceeding at which he has a right to be present nor are we aware of any authority in support of that contention. We find no error.

Closely connected with this argument is defendant’s assertion that he was denied his right of allocution prior to sentencing. GCR 1963, 785.8(2). The record supports that assertion. GCR 1963, 785.9. Therefore, in the event defendant does not choose to withdraw his guilty plea, he shall be resentenced after being given an opportunity to advise the court of any circumstances he feels the court should consider in imposing sentence. People v Jordan, 85 Mich App 459; 271 NW2d 275 (1978).

Remanded for proceedings consistent with this opinion. If defendant chooses not to withdraw his guilty plea, he shall be resentenced after his right of allocution is observed.

       This standard was recently cited with approval in People v Hagewood, 88 Mich App 35, 38; 276 NW2d 585 (1979).

       We believe the rule enunciated in this case will foster a sentence bargain practice which need not involve the court as one of the participants in the agreement. Rather the prosecutor will agree to recommend a certain sentence and the defendant will agree to plead with the understanding that the plea can be withdrawn if the court does not accept and follow the recommendation. In our judgment this procedure is far preferable to the often criticized practice of having the court bargain with the defendant as to sentence before the preparation of a presentence report.

       Because of our disposition of this issue, we need not determine if reversible error occurred as a result of the judge’s failure to inform defendant that he could not be placed on probation. GCR 1963, 785.7(l)(f). See People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), People v Lendzian, 80 Mich App 323; 263 NW2d 360 (1977).