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

text:
    ROBERTSON v LOCAL DIVISION 26, AMALGAMATED TRANSIT UNION
    Docket No. 78-3683.
    Submitted June 21, 1979, at Detroit.
    Decided July 23, 1979.
    Eddie Robertson filed with the Michigan Employment Relations Commission charges against his bargaining unit, Local Division 26, Amalgamated Transit Union, alleging unfair representation by the union in bargaining for a new contract and the union’s failure to support Robertson’s personal concerns. The charges were brought under the public employment relations act. Following a hearing, the administrative law judge issued a recommended order dismissing the charges. The commission adopted that order after the period for taking exceptions to the recommended order had expired without either side having filed any exceptions. Robertson appeals. Held:

    Failure by a party timely to file exceptions to a proposed order issued pursuant to the Michigan Public Employment Relations Act constitutes a waiver of any objections to that order and is a bar to an appeal in the absence of a showing of good cause for the failure timely to file the exceptions.
    Appeal dismissed.
    Labor Relations — Public Employment Relations Act — Proposed Order — Exceptions — Waiver — Review — Statutes.
    Failure by a party timely to file exceptions to a proposed order issued pursuant to the Michigan public employment relations act constitutes a waiver of any objections to that order and is a bar to an appeal in the absence of a showing of good cause for the failure timely to file the exceptions (MCL 423.216[b], [d]; MSA 17.455[16][b], [d]).
    References for Points in Headnote
    48A Am Jur 2d, Labor and Labor Relations §§ 1649, 1650.
    5 Am Jur 2d, Appeal and Review § 558.

      Eddie Robertson, in propria persona.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, and Jon M. DeHorn, Assistant Attorney General, for the Michigan Employment Relations Commission.

      Farber & Downs, P.C., for respondent union.
    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.

   N. J. Kaufman, P.J.

On December 28, 1977, appellant filed charges with the Michigan Employment Relations Commission (hereinafter MERC) against his bargaining unit. The charges involved the union’s duty of fair representation in bargaining for a new contract and the union’s failure to support appellant’s personal concerns. The charges were brought under the public employment relations act (hereinafter PERA). After a hearing, the administrative law judge issued a recommended order that the charges be dismissed. MERC adopted that order on July 24, 1978, after the period for taking exceptions to the administrative law judge’s recommendation had expired without either side filing any exceptions. The charging party now appeals.

We conclude that appellant’s failure timely to file exceptions to the administrative law judge’s proposed order constitutes a waiver of any objections and bars this appeal.

MCL 423.216(b); MSA 17.455(16)(b) provides in part:

"If the evidence is presented before a commissioner of the commission, or before examiners thereof, the commissioner, or examiners shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the commission, and if an exception is not filed within 20 days after service thereof upon the parties, or within such further period as the commission may authorize, the recommended order shall become the order of the commission and become effective as prescribed in the order.”

MCL 423.216(d); MSA 17.455(16)(d) states in part:

"No objection that has not been urged before the commission, its commissioner or agent, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances.”

We have not found any Michigan cases construing the above language. However, in the absence of governing Michigan law, we may rely on similar sections of the National Labor Relations Act when construing provisions of PERA. Michigan Employment Relations Comm v Reeths-Puffer School Dist, 391 Mich 253, 260; 215 NW2d 672 (1974).

The National Labor Relations Act contains provisions substantially identical to the PERA provisions quoted above. 29 USC 160(c), provides in part:

"In case the evidence is presented before a member of the Board, or before an examiner or examiners thereof, such member, or such examiner or examiners as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become effective as therein prescribed.”

29 USC 160(e) states in part:

"No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”

Several Federal courts of appeal have construed these provisions and held that objections not raised before the NLRB are waived. See National Labor Relations Board v International Union of Operating Engineers, Local 66, 357 F2d 841, 845-847 (CA 3, 1966), and cases cited therein. In National Labor Relations Board v Pugh & Barr, Inc, 194 F2d 217 (CA 4, 1952), a trial examiner’s recommended order was adopted by the NLRB after the respondent failed to file exceptions to the order. When the NLRB petitioned the Court for enforcement of the order, respondent, without offering any excuse for its failure to file exceptions to the trial examiner’s report, urged the Court to deny the motion and hold a hearing on the sufficiency of the evidence used to support the order. The Court reviewed the relevant statutes, refused to review the sufficiency of the evidence because respondent failed to raise the issue in a timely manner before the NLRB and offered no explanation for the omission, and granted the NLRB’s motion. The Court, in essence, refused to review the case.

We likewise hold that appellant failed to preserve this case for review by inexplicably failing to object in a timely fashion to the administrative law judge’s recommended order. If this Court were to rule otherwise, parties would be able to circumvent MERC’s review of administrative law judge orders, and the statutes under consideration would be rendered meaningless. Appellant will not be permitted to skip a step in the review process without demonstrating good cause. In the instant case, appellant has failed to give any explanation for his failure to file exceptions to the recommended order. Therefore, this case has not been preserved for appeal.

Appeal dismissed. No costs, a public question being involved.


source: Caselaw Access Project

author: V. J. Brennan, J.

license: Public Domain

text:
    PEOPLE v DAVIS
    Docket Nos. 78-4347, 78-4349.
    Submitted May 8, 1979, at Lansing.
    Decided July 23, 1979.
    Leave to appeal applied for.
    Perry A. Davis and four others were charged with various crimes under a 16-count information. Specifically defendant Davis was charged with three counts of criminal sexual conduct in the first degree, kidnapping, assault, conspiracy and bestiality. He was bound over for trial on all charges, Detroit Recorder’s Court, Harvey F. Tennen, J. The case was assigned to Recorder’s Court Judge George W. Crockett, III. Judge Crockett, on the basis of defense motions, issued orders compelling psychiatric examination of the complainant, discovery of complainant’s medical records and allowing defendant’s counsel to obtain an additional deposition of the complainant. The people appeal by leave granted the granting of these three pretrial motions. Held:

    1. The trial court improperly ordered the psychiatric examination. In the people’s case against Perry A. Davis, complainant’s version is supported by medical testimony and photographic evidence. Introduction of a general psychological profile as to a complainant’s sexual propensities would be an introduction of opinion evidence which would have little bearing on the issue of consent in any particular case. A statute excludes such opinion testimony for good reason because the practice of psychiatry has not as yet advanced to such an exact science whereby the probative value of such opinion testimony would exceed its prejudicial impact. The testimony is therefore not relevant to the issue of consent. There is no right to introduce irrelevant evidence and the statute which excludes such testimony is not violative of a criminal defendant’s constitutional right to confrontation.

      References for Points in Headnotes

       65 Am Jur 2d, Rape § 55.

       65 Am Jur 2d, Rape § 107.
    Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination. 14 ALR3d 1433.

       65 Am Jur 2d, Rape §§ 82-84.

       81 Am Jur 2d, Witnesses § 146.
    Right of one against whom testimony is offered to invoke privilege of communication between others. 2 ALR2d 645.

       23 Am Jur 2d, Depositions and Discovery § 324.
    Right of prosecution to pretrial discovery inspection, and disclosure. 96 ALR2d 1224.

       23 Am Jur 2d, Depositions and Discovery §§ 309-311.

      2. Allowing discovery of the' complainant’s medical records regarding her treatment for alcoholism was error. According to the record, the physician-patient privilege was not waived by the complainant who was the only person who could do so. Sometimes privilege must yield to a demonstrated specific need for evidence in a pending criminal trial. The fact that a complainant has in the past undergone treatment for alcoholism is in no way material to the question of consent. Therefore, Perry A. Davis failed to demonstrate a need for any privileged material and the trial court’s order allowing discovery of medical records should be set aside.
    3. The trial court’s ruling which allowed an additional deposition of the complainant by defendant’s retained counsel was improper. There was no need to inject an additional statement of the complainant into the case. Counsel for the defendant had vigorously cross-examined the complainant after ample preparation, had strenuously contested each count under which defendant was charged and had extensive preliminary examination testimony from which to prepare the defense.
    The orders are vacated.
    1. Criminal Law — Evidence — Sex Crimes — Credibility op Complainant.
    Credibility is an issue in every case and there is no greater need for inquiring into the social and mental history of a complainant in a sex case to reveal degree of credibility than that of any other complainant.
    2. Criminal Law — Evidence — Sex Crimes — Psychiatric Examinations — Limited Circumstances.
    A court ordered psychiatric examination of a sex complainant is appropriate only under limited circumstances; one example is where there is a defense theory of fabrication and the complainant’s version is not supported by corroborating evidence; the rule is inapplicable and psychiatric examinations are not permitted where the complainant’s version is supported by medical testimony and photographic evidence.

      3. Evidence — Criminal Law — Sex Crimes — Opinion Evidence — Inflammatory and Prejudicial Evidence — Probative Value — Admissibility — Constitutional Law — Confrontation of Witness — Statutes.
    Opinion evidence of the sexual conduct of the victim of a sex offense, the victim’s past sexual conduct with the actor or specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease, is inadmissible in a prosecution for a sex offense unless and only to the extent that the judge finds that the evidence is material to a fact at issue and that its inflammatory or prejudicial nature does not outweigh its probative value and the exclusion of such evidence does not violate a criminal defendant’s right to confrontation (MCL 750.520j; MSA 28.788[10]).
    4. Evidence — Criminal Law — Privileged Communications — Waiver — Relevant Evidence — Due Process — Admissibility.
    Generally, privileged communications are the privilege of the person making them and a personal waiver of the privilege is necessary for such communications to be admitted at trial; however, a generalized assertion of privilege must yield to a demonstrated specific need for evidence in a pending criminal trial where required by the guarantee of due process of law and where the privilege is asserted to withhold evidence that is demonstrably relevant.
    5. Evidence — Medical Records — Discovery — Privileged Material.
    Discovery of medical records should not be allowed where there is a failure to demonstrate a need for such privileged material.
    6. Evidence — Criminal Law — Sex Crimes — Complainant Depositions — Necessity — Preparation of Defense.
    A motion to allow an additional deposition of the complaining witness in a sex prosecution was improperly granted where it was unnecessary for the preparation of a defense; the deposition is unnecessary where defense counsel vigorously cross-examined the complainant after ample preparation, he strenuously contested each count under which defendant was charged and there was extensive preliminary examination testimony from which to prepare the defense.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan,
      Prosecuting Attorney, Michael R. Mueller, Assistant Prosecuting Attorney, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Sheldon Halpern and Eileen Scheff, for defendant.
    Before: D. C. Riley, P.J., and V. J. Brennan and N. J. Kaufman, JJ.
   V. J. Brennan, J.

The people appeal by leave the lower court’s granting of three pretrial motions brought by defendant.

On May 26, 1978, defendant Perry Allen Davis and four others were charged with various crimes under a 16-count information. Specifically defendant was charged with three counts of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2); one count of kidnapping, MCL 750.349; MSA 28.581; two counts of assault with intent to do great bodily harm less than the crime of murder, MCL 750.84; MSA 28.279; one count of conspiracy, MCL 750.157a; MSA 28.354(1); and one count of committing an abominable and detestable crime against nature with an animal, MCL 750.158; MSA 28.355.

On June 21, 1978, following preliminary examination before visiting Recorder’s Court Judge Harvey F. Tennen, defendant was bound over for trial on all of the aforementioned charges. The case was subsequently assigned to Recorder’s Court Judge George W. Crockett, III, who granted the three defense motions which formed the basis for the present appeal.

We first direct our attention to the lower court’s order directing the complainant to submit to a psychiatric examination. As authority for his ruling Judge Crockett relied on Dean Wigmore’s treatise on evidence and upon Ballard v Superior Court of San Diego County, 64 Cal 2d 159; 49 Cal Rptr 302; 410 P2d 838 (1966). In his treatise Dean Wigmore places a female complainant in a sex offense case in a separate class. He warns of a dangerous abnormality consisting of a disposition to fabricate sex charges against innocent men. Professor Wigmore suggests "only an inquiry into the social and mental history will reveal [her] degree of credibility” and advises that:

"[n]o judge should ever let a sex offense charge go to the jury unless the female complainant’s social history and mental makeup has been examined and testified to by a qualified physician.” 3 Wigmore on Evidence, p 460, § 924a. See Anno: Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination, 18 ALR3d 1433.

Although Dean Wigmore’s theory has been cited in Michigan, see People v Smallwood, 306 Mich 49; 10 NW2d 303 (1943), it has never been adopted by a Michigan court nor are we disposed to now do so. Credibility is an issue in every case, and there is no showing beyond Dean Wigmore’s outmoded psychological theories that sex offenses warrant greater scrutiny of the complainant. Moreover, such an absolute requirement as that espoused by Dean Wigmore would operate to deter victims of sex crimes from disclosing such offenses and would thus violate this state’s enunciated public policy.

As to Ballard, supra, even if we were to adopt the California court’s holding it would be inapplicable to the case at bar. In Ballard the Court ruled that court ordered psychiatric examination of the complainant is appropriate only under very limited circumstances. "Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness’s mental or emotional condition upon her veracity.” Ballard, 64 Cal 2d 159, 177. The ruling thus contemplates a defense theory of fabrication where the complainant’s version is not supported by corroborating evidence. The present case falls outside the ambit of Ballard since the complainant’s version is supported by medical testimony and photographic evidence.

Our determination of the propriety of the lower court’s ruling therefore requires an extrapolation of Michigan law on the subject taking into account the interests of the defendant, the state and the victim.

The Michigan Legislature has specifically addressed the question of admissibility of evidence relating to victims of sex offenses by the enactment of the following:

"(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim’s past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.” MCL 750.520j; MSA 28.788(10). (Emphasis added.)

Defendant seeks the psychological examination in order to advance his theory of consent. Defendant asserts that "because of the victim’s psychological makeup * * * she voluntarily participated in the sexual activities she now claims were forced upon her”. Thus the opinion evidence sought to be advanced relates to the victim’s sexual conduct and falls within the proscription emphasized in the above statute.

We must next address whether the application of the statute’s prohibition in the case at bar limits defendant’s Sixth Amendment right to confrontation. Initially we point out that the above provision:

"* * * represents an explicit legislative decision to eliminate trial practices under former law which had effectually frustrated society’s vital interests in the prosecution of sexual crimes. In the past, countless victims, already scarred by the emotional (and often physical) trauma of rape, refused to report the crime or testify for fear that the trial proceedings would veer from an impartial examination of the accused’s conduct on the date in question and instead take on aspects of an inquisition in which complainant would be required to acknowledge and justify her sexual past.” People v Khan, 80 Mich App 605, 613; 264 NW2d 360 (1978).

However, even this worthy purpose does not insulate the statute from a constitutional attack. People v Dawsey, 76 Mich App 741; 257 NW2d 236 (1977).

The right of confrontation protects the introduction of evidence relevant to the matter being tried. "Evidence is relevant when it is sufficiently probative of a fact in issue to offset the prejudice its admission produces.” People v Thompson, 76 Mich App 705, 711-712; 257 NW2d 268 (1977), see also MRE 401-403.

Here, due to the bizarre nature of the sexual activities involved, the issue of relevancy presents a perplexing question, The defendant claims that the acts were consensual and that a psychological profile of the complainant would bear directly on the assertion of consent. Although this writer would have difficulty characterizing as normal a person who voluntarily engages in the activities involved herein, introduction of a general psychological profile as to one’s sexual propensities would have little bearing on the issue of consent in any particular case. Such a procedure would be analogous to the introduction of opinion evidence of a defendant’s general criminal tendencies in order to prove commission of a certain crime. The practice of psychiatry has not as yet advanced to such an exact science whereby the probative value of such opinion testimony would exceed the prejudicial impact on the trier of fact. Accordingly, the legislative enactment which excludes such testimony is not violative of a criminal defendant’s Sixth Amendment rights since there is no right to introduce irrelevant evidence. Thus the trial court improperly ordered the psychiatric examination, and the order is set aside.

We next address the propriety of the lower court’s order allowing discovery of the complainant’s medical records regarding her treatment for alcoholism. Both parties on appeal direct attention to the question of physician-patient privilege. Upon review of the record it is noted that the privilege has not been waived by the complainant who has the sole right to do so. People v Sam Williams, 39 Mich App 91; 197 NW2d 336 (1972). Assuming the privilege is not waived our inquiry focuses on whether the privilege must yield to the interest of the defendant in this case.

Where the privilege is asserted to withhold evidence that is "demonstrably relevant” to a criminal trial, the guarantee of due process of law is impaired. United States v Nixon, 418 US 683; 94 S Ct 3090; 41 L Ed 2d 1039 (1974). In Nixon, supra, at 713, the court balanced the competing interests of the parties and held that a "generalized assertion of privilege must yield to the demonstrated specific need for evidence in a pending criminal trial”. (Emphasis added.)

In applying the above to the present case we can in no way comprehend how the complainant’s prior treatment for alcoholism has any bearing on the defendant’s theory of consent. There is no evidence of any continued intoxication on the part of the complainant during her alleged captivity. The only evidence regarding alcohol is the complainant’s testimony that she had one drink before the incident began. There is no basis in the record for the defendant’s rather bald assertion that "because of the complainant’s * * * dependency on alcohol, she voluntarily participated” in the activities which formed the basis of this suit.

The fact that the complainant has in the past undergone treatment for alcoholism is in no way material to the question of consent. The defendant has therefore not demonstrated a need for any privileged material and the trial court’s order allowing discovery of medical records is set aside.

We find the lower court’s ruling allowing the additional deposition of the complainant by defendant’s retained counsel to be improper. A careful reading of the preliminary examination transcript indicates that substitute counsel vigorously cross-examined the complainant after ample preparation. He strenuously contested each count under which defendant was charged and some of his arguments were adopted by counsel for other defendants. Under these circumstances there is no need to inject an additional statement of the complainant into this case. Defendant has extensive preliminary examination testimony from which to prepare his defense.

The lower court orders compelling psychiatric examination of the complainant, allowing discovery of complainant’s medical records and allowing deposition of the complainant by defendant’s retained counsel are vacated.

       At the preliminary examination the complainant testified that she was held captive for Í3 days, forced to engage with various persons in sexual intercourse, fellatio, cunnilingus, was sodomized and was forced to commit an act of bestiality. The complainant was bound each night, was ordered to sleep in a doghouse and was subjected to physical abuse including humiliating and degrading acts.


author: Allen, J.

text:
    PEOPLE v OTTO
    Docket No. 78-5021.
    Submitted May 14, 1979, at Detroit.
    Decided July 23, 1979.
    Defendant Daniel Otto and a companion were hitchhiking on a freeway when they were stopped by a police officer. In lieu of issuing a citation fof hitchhiking, the officer decided to transport the hitchhikers from the freeway. The officer called in a file check to determine if there were any outstanding warrants. There were no warrants outstanding for the defendant but there was an outstanding traffic warrant for his companion. After the file check, and prior to placing the offenders in the patrol car, the officer conducted a pat-down search of both individuals. During the pat-down the officer felt a hard bulge under the defendant’s coat which a further search revealed to be a pistol. The defendant Was then arrested and charged with carrying a concealed weapon.
    At the defendant’s preliminary examination, defense counsel moved to dismiss but the defendant was bound over. In Detroit Recorder’s Court, the defendant moved to suppress the gun as evidence, and in the alternative, fot an evidentiary hearing. The Recorder’s Court, Thomas L. Poindexter, J., denied the motion to suppress, but granted an evidentiary hearing, limited tó taking the testimony of the defendant only. The defendant appeals, by leave granted, from the denial of the motion to suppress. Held:

    1. The initial stop of the defendant was proper as he and his companion were violating a state statute.
    2. The police officer’s decision to transport the defendant and his companion to the néxt exit was a reasonable one under the circumstances.
    3. The pat-down search of the offenders was reasonable under the circumstances as a mfeans of protecting the officer.
    4. The trial Court correctly ruled that the evidence should not be suppressed.
    Affirmed.
    References for Points in HeadnOtes

       68 Am Jur 2d, Searches and Seizures §§ 35, 37-59.

       68 Am Jür 2d, Searches and Seizures §§ 2-6.

       68 Am Jür 2d, Searches and Seizures § 58.

      1. Searches and Seizures — Constitutional Law — Warrant Requirement.
    A search and seizure without a warrant is unreasonable per se and violates the state and Federal constitutions, unless the prosecution satisfies its burden of showing that the search is within one of the recognized exceptions to the warrant requirement (US Const, Am IV; Const 1963, art 1, § 11).
    2. Searches and Seizures — Constitutional Law — Reasonableness.
    The touchstone of an analysis under the Fourth Amendment is always "the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security”; the reasonableness depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.
    3. Searches and Seizures — Hitchhikers — Freeways — Pat-Down Search — Safety of Police Officer.
    A police officer has no authority to arrest a person hitchhiking on a limited-access freeway, but may only issue to the hitchhiker a citation or transport the hitchhiker from the freeway; therefore, once a police officer decides to remove a hitchhiker from a freeway by transporting him in the officer’s car to the next exit so that an occurring offense will not continue by the presence of the hitchhiker on the freeway, the police officer is justified in conducting a pat-down search of the hitchhiker for the officer’s own safety and any weapons found in such a search should not be suppressed as evidence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
    Legal Aid and Defender Association of Detroit (by Craig A. Daly), for defendant on appeal.
    Before: N. J. Kaufman, P.J., and Allen and K. B. Glaser, JJ.

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

   Allen, J.

Where an officer stops a hitchhiker on the freeway in violation of MCL 257.679a; MSA 9.2379(1) and, in lieu of issuing a citation under MCL 257.728; MSA 9.2428, intends to transport the hitchhiker in the officer’s patrol car off the freeway so that he can continue to hitchhike legally, can the officer conduct a pat-down search for weapons prior to having the hitchhiker enter the patrol car in the absence of any showing of specific and articulable facts that the hitchhiker is armed and dangerous? On this question of first impression, the trial court answered in the affirmative, and defendant appeals by leave granted.

At approximately 11:15 a.m., on October 1, 1978, Trooper Charles D. McCord was patroling northbound Interstate 75 near Six Mile Road when he observed the defendant and a female companion hitchhiking on the freeway. Trooper McCord stopped and asked if they had a vehicle breakdown. He then gave defendant and his companion a verbal warning that they were in violation of MCL 257.679a; MSA 9.2379(1) when defendant responded that he and his companion were just trying to make it to Eight Mile Road, just a couple of miles north of where they were. Trooper McCord obtained identification from both parties and called in a file check to determine if there were any outstanding warrants. No warrant was outstanding for defendant but there was an outstanding trafile warrant for his companion. Trooper McCord then told the parties he would transport both of them off the expressway, taking them to Eight Mile Road in his patrol car. Neither party was placed under arrest. Before putting defendant in the patrol car, McCord conducted a pat-down search of defendant. During the pat-down he felt a hard bulge on the left side of defendant’s black leather jacket.

"As I was frisking him he had a black leather jacket on with a hard bulge right over his breast, on the left side, and at that time I felt on the outside pocket and I —then I went on the inside of his coat. On the inside of his jacket there was a pocket and at that time I removed a .25 caliber Gallesi automatic pistol with one round in the magazine.”

McCord admitted on cross-examination that he had to go inside defendant’s jacket to remove the gun.

At the preliminary examination, defense counsel moved to dismiss but defendant was bound over on the charge of carrying a concealed weapon contrary to MCL 750.227; MSA 28.424. On November 17, 1978, defendant moved in Detroit Recorder’s Court to suppress the evidence and, in the alternative, for an evidentiary hearing. The motion to suppress was denied but an evidentiary hearing was granted, limited to taking the testimony of the defendant only. At the evidentiary hearing the defendant testified substantially as he did at the preliminary examination.

Defendant concedes that the original "stop” was legal and proper because at that time he was violating a state statute, but argues that the "stop and frisk” exception under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), cannot justify a warrantless search where there are no specific and articulable facts from which the officer could reasonably conclude that the defendant was armed and dangerous. As was stated in Terry, at 30:

"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” (Emphasis supplied.)

Defendant strengthens this argument by pointing out that under settled law warrantless searches are per se unreasonable, subject only to a few specifically and well established exceptions of which only the Terry exception could possibly apply in the case before us. People v Harold Williams, 63 Mich App 398; 234 NW2d 541 (1975).

"A warrantless search and seizure is unreasonable per se and violates the Fourth Amendment of the United States Constitution and art 1, § 11 of the Michigan Constitution unless the prosecution satisfies its burden that the search is within one of the recognized exceptions to the warrant requirement. People v Reed, 393 Mich 342, 362; 224 NW2d 867 (1975).” 63 Mich App at 401. (Emphasis supplied.)

The file check had shown defendant clean and his companion subject only to a routine traffic violation. Thus, unless it is reasonable to assume that all hitchhikers are armed and dangerous—an assumption we decline to make—nothing in the instant case suggested defendant was either dangerous or armed. Ergo, defendant argues, the Terry exception does not apply.

Plaintiff answers by arguing that defendant construes the law too narrowly as is evidenced by the fact that the United States Supreme Court, in a subsequent case, Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977), broadened the Terry holding where the frisk was reasonable under the circumstances in which it was made. In that case, two officers on routine patrol stopped defendant Mimms when they observed him driving with an expired license. One of the officers asked Mimms to step out of the car and produce his driver’s license. When Mimms did so, the officers noticed a large bulge under his jacket whereupon defendant was frisked and a loaded revolver found on his person. The Pennsylvania Supreme Court held the warrantless search illegal on the identical grounds urged here, viz: that the officer’s order to get out of the car was impermissible because there were no " 'objective observable facts to support a suspicion that criminal activity was afoot or that the occupant of the vehicle posed a threat to public safety’ ”, Mimms, 434 US at 108, and, since it was this order which led to the observance of the bulge under defendant’s jacket, the revolver was the fruit of an unconstitutional search. That conclusion was rejected, the Supreme Court saying:

"We do not agree with this conclusion. The touchstone of our analysis under the Fourth Amendment is always ’the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s per sonal security.’ Terry v Ohio, 392 US 1, 19 [88 S Ct 1868; 20 L Ed 2d 889] (1968). Reasonableness, of course, depends 'on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ United States v Brignoni-Ponce, 422 US 873, 878 [95 S Ct 2574; 45 L Ed 2d 607] (1975).
"In this case, unlike Terry v Ohio, there is no question about the propriety of the initial restrictions on respondent’s freedom of movement. Respondent was driving an automobile with expired license tags in violation of the Pennsylvania Motor Vehicle Code. Deferring for a moment the legality of the ’frisk’ once the bulge had been observed, we need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment.” 434 US at 108-109. (Emphasis supplied.) (Footnotes omitted.)

Recently our Court quoted with approval the paragraph from Mimms cited above and, in doing so, concluded that "[u]nder the circumstances the only 'sensible thing’ for the police officer to do was to see if the purse contained a weapon”. People v White, 84 Mich App 351, 354; 269 NW2d 598 (1978).

In the instant case it was the officer’s decision to transport the defendant to the next exit and thereby take him off the freeway, which led to the pat-down. Employing the rationale of Mimms and White we inquire whether the officer’s decision was reasonable under the circumstances. We find that it was. Trooper McCord had no authority to arrest the defendant and could have only issued a citation. This being so, the trooper’s decision was limited to issuing a citation or to transporting the offenders off the freeway to the next exit. We believe the officer wisely chose the latter course of action; for had a citation been issued, the hitchhikers would continue on the freeway in violation of the law. As such, defendant and his female companion could either be the prey of individuals who rob and assault individuals stranded or walking along the highway or could themselves be suspect of criminal conduct on the highway. Recently, several instances of suspected foul play by hitchhikers or pedestrians on the interstate highways have received wide attention.

Having concluded that the decision to personally transport defendant and his companion off the highway was not in itself an illegal seizure, we have no trouble in sustaining the subsequent pat-down as being reasonable under the circumstances. The alternate to the frisk would be to handcuff defendant but that in itself would be a greater intrusion than a pat-down. Frisks, when made for the officer’s own protection, are justified under both Terry and Mimms. As the Terry court noted:

"Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.” 392 US at 23-24.

In Mimms, the Supreme Court noted that a significant number of killings of police officers occurred in connection with traffic stops. While the instant case is not the usual traffic stop where the officer on foot approaches the stopped vehicle, it is obvious that an officer whose hands are on the wheel of his own vehicle is an easy victim of an armed passenger sitting behind him.

We are aware of People v Scott, 16 Cal 3d 242; 128 Cal Rptr 39; 546 P2d 327 (1976), where the defendant and his young son, while near an exit ramp on a freeway, were stopped by police officers. The defendant appeared to be intoxicated and had no identification. He told the officers he was trying to get his son to his ex-wife in San Francisco. Out of apparent compassion and concern the officers offered to drive the two to San Francisco. No arrest was made, although one could have been made. Before permitting the defendant into the patrol car, an officer frisked defendant and discovered a bag of marijuana which the California Supreme Court found to be illegally obtained. In doing so it emphasized the totally discretionary action of the officers. The California court also noted that the defendant could have been arrested and then searched, but was never arrested.

In the instant case the options of the officer were more circumscribed by the situation. The defendant could not have been arrested, and yet it was not unreasonable to assist defendant in leaving the expressway. Looking at "all the circumstances of the particular governmental invasion of [defendant’s] personal security” (434 US at 109), we conclude that the frisk of defendant was reasonable.

The flaw in defendant’s position is that, here, an offense was occurring and would continue to occur unless the offender was taken off the freeway. In this respect the case for the people is stronger than in Terry where there was only the suspicion that something wrong might occur. It is for this reason that we reject defendant’s claim that if this Court affirms, a new legal standard would be created covering countless situations where an officer places a citizen in his vehicle. In none of the situations is there an ongoing offense, much less an offense which will continue once the officer leaves. Further, Trooper McCord first inquired whether defendant had sustained a vehicle breakdown and it was not until he was informed that defendant and his companion were hitchhiking that he asked them to enter the police car. An armed officer sitting in a parked patrol car taking information from a stranded or injured motorist is in an entirely different situation than the same officer when driving his car in traffic on the freeway. Our opinion is limited to only the instant situation where, if the officer merely issues a warning or citation and departs, he could be leaving the offender or others in danger. In such a situation it makes sense to remove the danger, and the resulting limited intrusion on the individual’s privacy is overcome by the public interest of protecting human life.

Affirmed.

       MCL 257.679a; MSA 9.2379(1) provides that, "A person shall not operate a motorcycle with less than 125 cubic centimeter engine, moped, farm tractor, or other self-propelled farm implement, nor shall any pedestrian, bicycle, except as herein provided, or other nonmotorized traffic be permitted on any limited access highway in this state.” (Emphasis added.) Limited access highway is defined in MCL 252.51; MSA 9.1094(1) to include freeways.

       MCL 257.728; MSA 9:2428 provides that where a violation occurs the officer may issue a citation and release the offender, unless the person is charged with driving under the influence, reckless driving, driving without a permit, or negligent homicide.

       Defendant gives the following illustrations: persons running out of gas and walking towards the nearest gas station; persons involved in an auto accident and who are asked to sit in the police vehicle while the officer obtains information; persons injured in an auto accident; neighborhood disturbances where the police decide to transport the apparent victim from the scene for his own protection.

         While we do not rely on it as a reason for affirming, we do note that as stated in Terry, "since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct”. 392 US at 12. In the instant case Trooper McCord’s conduct could hardly be termed lawless or offensive; rather, the officer was befriending the offenders. The purpose of the exclusionary rule hardly supports the suppression of evidence in the instant case.


author: Per Curiam.

text:
    CITY OF DETROIT v ROTT
    Docket No. 77-3468.
    Submitted May 2, 1979, at Detroit.
    Decided July 23, 1979.
    The City of Detroit commenced condemnation proceedings against an apartment building and land owned by Saul and Bessie Rott. A settlement was entered into whereby the city agreed to pay the Rotts a sum certain in exchange for conveyance of the property. Shortly thereafter, the premises were damaged by fire and the Rotts were compensated for the fire loss by their insurance carrier. When the Rotts later tendered a deed to the city, the city offered to pay them only the difference between the agreed-upon price and the amount of the insurance proceeds. The Rotts brought a motion to enforce payment of the full price. The Wayne Circuit Court, Arthur E. Moore, J., held that the city was entitled to deduct the amount of the insurance proceeds from the settlement price. The Rotts appeal. Held:

    The only issue to be considered is whether the Rotts had rendered full performance of their part of the bargain, and, assuming that the property was repaired, they did fully comply with the agreement. The fact that the property was insured is not relevant, nor is the amount received in insurance proceeds conclusive of the amount to be deducted in the event of defective performance.
    Reversed.
    Contracts — Sales — Damages — Defective Performance.
    The measure of damages in the event of defective performance of a contract of sale may be the difference in the value of the object of the performance in its defective condition and what its value would have been if the contract had been properly performed, or the cost of making the subject matter conform to the standards contemplated by the contract, whichever is less.
    Reference for Points in Headnote
    17 Am Jur 2d, Contracts §§ 375, 376.

      Roger E. Craig, Corporation Counsel, and James

      C. Cobb, Jr., Assistant Corporation Counsel, for plaintiff.

      Evans & Luptak (by D. Michael Kratchman), for defendants.
    Before: J. H. Gillis, P.J., and Beasley and R. B. Webster, JJ.

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

   Per Curiam.

On April 29, 1976, the city of Detroit commenced condemnation proceedings against properties in the Virginia Park area including a parcel of land and a 12-unit apartment building owned by appellants, Saul and Bessie Rott. On January 13, 1977, a settlement was entered into whereby the city agreed to pay $25,300 in exchange for the conveyance of title to the property.

On February 26, 1977, a fire damaged the premises. The Rotts received $13,226.03 in insurance proceeds to compensate them for this loss.

On March 31, 1977, Mr. Rott apparently sent a warranty deed to the city. The city, upon learning of the fire damage, informed the Rotts that it would pay only the difference between the agreed-upon price and the amount which the Rotts received in insurance proceeds.

Appellants brought a motion before the lower court seeking to collect the full price from the city. The court ruled that the city was entitled to deduct the amount of the insurance proceeds from the settlement price. The Rotts appeal, seeking to have that order reversed.

The agreement in this case was in settlement of a condemnation proceeding. Nevertheless, we view it as analogous to a contract for the sale of real property. Appellants agreed to forego their right to a trial and to convey certain real estate. In return the city agreed to pay $25,300.

After appellants rendered what they considered full performance they sought to require the city to comply with its part of the bárgain. Assuming the damaged unit was repaired after the fire, it is evident that appellants did fully comply with the agreement. Appellants have stated in their brief on appeal that the unit was restored and the city has not challenged this contention. Moreover, even if the unit were not restored, we think it was incumbent upon the city to raise this below.

The only issue the trial court should have resolved was whether appellants had rendered full performance of their part of the bargain. The fact that there was a contract of insurance on the premises is of no relevance to that issue.

Even if the city had contended that appellants rendered defective performance, the amount received in insurance proceeds would not be conclusive of the amount to be deducted from the agreed-upon price. Where there has been a defective performance of a contract the measure of damages may be the difference in the value of the object of the performance in its defective condition and what its value would have been if the contract had been properly performed, or the cost of making the subject matter conform to the standards contemplated by the contract, whichever is less. See 9 Michigan Law & Practice, Damages, § 107, p 107.

We conclude that the trial court erred in ruling that the city could deduct the amount received in insurance proceeds from the settlement price. No showing has been made that the city did not obtain the full benefit for which it had bargained.

Reversed. Costs to appellants.

       Although of no legal significance, it is interesting to note that the city intended, upon acquisition of the property, to demolish the building.


text:
    PEOPLE v McDONNELL
    Docket No. 78-25.
    Submitted May 9, 1979, at Lansing.
    Decided July 23, 1979.
    Leave to appeal applied for.
    Defendant, Thomas J. McDonnell, was convicted, on his plea of guilty, of second-degree criminal sexual conduct in the School-craft Circuit Court, William F. Hood, J. Defendant appealed alleging a denial of effective assistance of counsel and the Court of Appeals remanded for an evidentiary hearing. The hearing disclosed that defendant had a history of psychiatric disorders and treatments and that defendant’s counsel knew of defendant’s psychiatric history but failed to arrange for a competency hearing or to investigate an insanity defense. The trial court found that defendant was not denied effective assistance of counsel. Defendant pursued his appeal. Held:

    An ineffective assistance of counsel claim is reviewable after a guilty plea. The standard to determine whether a defendant had effective assistance of counsel in a criminal trial is that defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law. Defendant was denied the effective assistance of counsel.
    Reversed and remanded.
    1. Constitutional Law — Criminal Law — Right to Counsel — Effective Assistance of Counsel — Plea of Guilty.
    An ineffective assistance of counsel claim is reviewable after a guilty plea.
    2. Criminal Law — Constitutional Law — Assistance of Counsel — Effective Assistance.
    The standard to determine whether a defendant had effective assistance of counsel in a criminal trial is that defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 271.
    21 Am Jur 2d, Criminal Law § 315.
    Incompetency of counsel chosen by accused as affecting validity of conviction. 74 ALR2d 1390.

       21 Am Jur 2d, Criminal Law §§ 62-65.

      3. Criminal Law — Constitutional Law — Assistance of Counsel — Effective Assistance.
    A defendant who pled guilty to second-degree criminal sexual conduct and who had a history of psychiatric disorders and treatments was denied effective assistance of counsel where counsel was aware of defendant’s psychiatric history and its bearing on the charges but failed to arrange for a competency hearing before the plea or to investigate and consider the possibility of an insanity defense.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas L. Thompson, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.

      Grant & McQuarrie, for defendant on appeal.
    Before: D. C. Riley, P.J., and V. J. Brennan and G. W. Crockett, Jr., JJ.

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

   Per Curiam.

On September 20, 1977, defendant entered a plea of guilty in the Schoolcraft County Circuit Court to the crime of criminal sexual conduct in the second degree, MCL 750.520c(l)(a); MSA 28.788(3)(l)(a), growing out of his alleged touching of the private parts of a boy below the age of 13 years. On October 21, 1977, he was sentenced to a prison term of 7 to 15 years.

Defendant appealed and filed a motion for remand to the trial court for an evidentiary hearing. He contended that his guilty plea was not understandingly made and also that he was denied the effective assistance of counsel. In support of these contentions he asserted that his court-appointed counsel knew, or had reason to know, that the defendant had an extended history of psychiatric disorders and treatments and yet made no attempt to obtain a forensic evaluation and hearing to determine the issue of his competency to stand trial, to explore the possibility of a defense of insanity or to submit the state of defendant’s mental condition to the court at the time of his plea and sentencing. On July 17, 1978, this Court granted the motion.

A hearing was held in the trial court on September 28 and 29, 1978. Testimony was received from defendant’s and the people’s psychiatrists, from defendant’s trial counsel, from a psychotherapist familiar with the defendant and from defendant’s probation officer. The trial court found the defendant capable of understanding the proceedings, and of assisting in his defense. The court further found that the defendant was not denied effective assistance of counsel.

Our review of the record confirms that the defendant had a history of psychiatric disorders going back several years and is alleged to have been hospitalized at age 20 or 21 for a similar offense. At the evidentiary hearing, defendant’s appointed trial counsel stated that he had been aware of defendant’s problems and thought that "we would be involved with an insanity defense because of the nature of the crime involved”. But when defendant denied his guilt, counsel testified, "I forgot about anything to do with an insanity defense”. Counsel later testified: "The probability in my judgment was that we were better advised to take the offered plea that we had than to proceed any further.”

An ineffective assistance of counsel claim is reviewable after a guilty plea. People v Kyllonen, 80 Mich App 327; 263 NW2d 55 (1977). Our Supreme Court in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976), adopted the assistance-of-counsel standard enunciated in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974):

"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law * *

Defendant’s representation in the instant case did not comply with this minimum standard. Although counsel was aware of the defendant’s psychiatric history and its bearing on the charged offense, counsel failed to arrange for a competency hearing before the plea and to seriously investigate and consider the possibility of an insanity defense. Counsel’s failure to appropriately proceed in these circumstances denied the defendant effective assistance of counsel, cf., People v Bryant, 77 Mich App 108; 258 NW2d 162 (1977), and leaves in substantial doubt the issue of defendant’s competency at the time of the guilty plea.

This resolution of defendant’s ineffective assistance of counsel issue makes consideration of other defense issues unnecessary.

Reversed and remanded.


text:
    FREIBERG v BOARD OF EDUCATION OF BIG BAY DE NOC SCHOOL DISTRICT
    Docket No. 78-1691.
    Submitted January 10, 1979, at Lansing.
    Decided July 23, 1979.
    Leave to appeal applied for.
    Carl L. Freiberg, a tenured teacher, was dismissed by the Big Bay De Noc Board of Education, allegedly for financial, legal and enrollment reasons requiring a necessary reduction in personnel. At a State Tenure Commission hearing, Freiberg claimed that the school board used the subterfuge of an economic layoff when the real reason for his dismissal was his performance, leadership and influence in the teacher’s union and that the board, through its superintendent, had manipulated class schedules to eliminate his position. The Tenure Commission refused to review these allegations on the ground it lacked jurisdiction to review a school board’s budgetary decisions. Ingham Circuit Court, James T. Kallman, J., reversed the Tenure Commission and the Court of Appeals affirmed Judge Kallman’s decision. Freiberg v Board of Education of Big Bay De Noc School District, 61 Mich App 404; 232 NW2d 718 (1975). The case was then remanded to the Tenure Commission to determine de novo whether the defendant board of education, under the guise of a necessary reduction in personnel, used circuitous methods in removing plaintiff without the protection afforded by the teacher’s tenure act. The commission found that the board had laid plaintiff off in good faith due to financial necessity, although it acknowledged the animosity that existed between plaintiff, the superintendent and members of the school board. Ingham Circuit Court, James T. Kallman, J., affirmed the decision of the Tenure Commission. Plaintiff appeals. Held:

    Agency decisions should be supported by competent, material and substantial evidence and the Court of Appeals examines the whole record to determine if such evidence exists. The State Tenure Commission’s affirmance of the school board’s dismissal of plaintiff for financial, legal and enrollment reasons requiring a reduction in personnel is not supported by substantial evidence on the whole record. Numerous and significant contradictions appear in the record which directly refute any reason for a financial layoff. The board of education manipulated teaching schedules to effectively dismiss plaintiff under the guise of a necessary reduction in personnel in violation of the teacher’s tenure act.

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law §§ 545-549, 688-690.

       2 Am Jur 2d, Administrative Law §§ 688-690.
    68 Am Jur 2d, Schools §§ 208, 210.

       68 Am Jur 2d, Schools §§ 212-214.
    Elements and measure of damages in action by schoolteacher for wrongful discharge. 22 ALR3d 1047.

      Reversed and remanded with instructions.
    1. Schools and School Districts — Appeal and Error — Administrative Law — Court of Appeals — State Tenure Commission — Substantial Evidence Standard — Findings of Fact — Review.
    A decision of the State Tenure Commission should be supported by competent, material and substantial evidence; an allegation that it is not, requires the Court of Appeals to examine the whole record to determine whether such evidence exists and this examination must avoid invasion of the agency’s fact-finding province and yet afford a meaningful review of its decision.
    2. Schools and School Districts — State Tenure Commission — Appeal and Error — Tenured Teachers — De Novo Review — Substantial Evidence Standard.
    The issue of schedule manipulation as a subterfuge to dismiss a qualified, tenured teacher by eliminating his position is reviewable de novo by the State Tenure Commission and the decision of the tenure commission is subject to scrutiny on appeal for compliance with the requirement that an agency decision should be supported by competent, material and substantial evidence.
    3. Schools and School Districts — State Tenure Commission — Improper Teachers Discharge — Back Pay — Evidence — Mitigation — Burden of Proof.
    A case in which the improper discharge of a teacher is reversed by the Court of Appeals requires a remand to'the State Tenure Commission for determination of the amount of back pay with instructions (i) to deduct from the salary the teacher would have earned all wages he actually earned that he would not have earned if he were employed as a teacher, and (ii) to consider any evidence the school district offers that the teacher, through exertion of proper efforts, could have earned more; the burden on the mitigation of back pay issue is on the school district, not the teacher.

      Foster, Swift, Collins & Coey, P.C. (by Lynwood E. Beekman), for plaintiff.

      Keller, Thoma, Schwarze & Schwarze, P.C., for defendant.
    Before: V. J. Brennan, P.J., and M. F. Cavanagh and C. J. Hoehn, JJ.

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

   Per Curiam.

This is the second time this controversy has been presented to this Court for review.

Plaintiff, Carl L. Freiberg, is a tenured teacher who had been continuously employed by the Big Bay De Noc Board of Education since the 1967-68 school year. At the beginning of the 1971-72 school year, plaintiff was dismissed from his position, allegedly for financial, legal and enrollment reasons requiring a necessary reduction in personnel. Plaintiff requested a hearing pursuant to the teachers’ tenure act on the grounds that the defendant board of education was in fact attempting to dismiss him because of his performance, leadership and influence in the teachers’ union by use of the subterfuge of an economic layoff He further asserted that the board, through its superintendent, had manipulated class schedules to eliminate his position. The Teacher Tenure Commission declined to review plaintiff’s allegations, on the grounds it lacked jurisdiction to review a school board’s budgetary decisions. The circuit court reversed this decision, and this Court affirmed. The case was remanded to the Teacher Tenure Commission to determine de novo whether the defendant board of education, under the guise of a "necessary reduction in personnel”, used circuitous methods in removing the plaintiff from its school system without the protections afforded by the teachers’ tenure act. Freiberg v Board of Education of Big Bay De Noc School Dist, 61 Mich App 404, 416; 232 NW2d 718 (1975).

On remand, the Teacher Tenure Commission, over the dissent of two of its members, found that the board of education had laid off plaintiff in good faith due to financial necessity, although it acknolwedged the animosity that existed between the superintendent, members of the school board and the plaintiff. Plaintiff appealed this adverse decision to the circuit court, which affirmed. From this affirmance, plaintiff appeals to this Court as of right.

When it is alleged, as in the case at bar, that an agency’s decision is not supported by competent, material and substantial evidence, the reviewing court must examine the whole record to determine whether such evidence exists. This examination must both avoid invasion of the agency’s fact-finding province and yet afford the plaintiff "meaningful review” of its decision. The parameters of this review were delineated in Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974).

"What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record—that is, both sides of the record—not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency.”

We have carefully examined the record before us with these admonitions in mind, and conclude that the Tenure Commission’s decision is not supported by substantial evidence on the whole record.

Numerous and significant contradictions appear in the record which directly refute the financial, enrollment and legal difficulties asserted by the board of education to justify plaintiffs layoff. Testimony from other witnesses differs sharply from that of Superintendent Stupak, who was instrumental in procuring plaintiff’s dismissal. Absent Stupak’s testimony this record would contain scant, not substantial, evidence to support the commission’s findings. Stupak’s personal animus for plaintiff was noted by the majority in its opinion and the dissent characterized it in the following language:

"Contradictions between the testimony of the Superintendent and four other witnesses, including the Appellant, appear on the record. In addition, two witnesses (Freiberg and Pelletier) testified that Superintendent Stupak told them that he would lie under oath to protect his interest. There seemed to be no disagreement in this Commission that Superintendent Stupak was not worthy of belief.”

The testimony concerning the school district’s purported financial difficulties is replete with direct contradictions. For example, although the superintendent testified that State Rep. Varnum had informed him that state aid would decrease for the 1971-1972 school year, Rep. Varnum testified before the Tenure Commission that in fact he told the superintendent in June, 1971, state aid would probably increase, or at least remain stable. This alleged decrease in aid was offered by the board as one of the bases for its projected financial difficulties. Furthermore, the Intermediate School Superintendent McClintock informed Mr. Stupak in April or May, 1971, of the county equalized value for assessment purposes, which for the past three years at least had equaled the state equalized value. For 1971-1972, this equalized value increased approximately $600,000. It also appears from the uncontradicted record that the relations between the superintendent and plaintiff became especially strained at the end of the previous school year due to plaintiff’s inquiry into irregularities in payments from school funds made by Mr. Stupak. Lastly, despite its financial difficulties, the school district expanded existing programs, added a new program in home economics to its curriculum and hired a new teacher for this addition, without . apparently eliminating any previously existing programs.

We also note that class enrollment, on the opening school day when the school superintendent informed plaintiff of his economic "layoff”, was 610 students, a gain of 25 over the projected figure estimated the week before school opening, as well as an increase of 9 students over the 1970-1971 school year.

Finally, it appears from the record that the asserted legal problem underlying the plaintiff’s continued employment primarily involved a scheduling problem based on an overlap of teachers with a certification identical to plaintiff’s but with more seniority. This overlap existed only if plaintiff continued teaching in the high school. However, plaintiff was also certified to teach all subjects in the seventh and eighth grades, and had some teaching experience on that level. No vacancy existed in these grades, unless Mr. Soorus, a seventh grade teacher, was scheduled to fill an existing high school vacancy in history. The vacancy in question was within Mr. Soorus’ certification (political science and history); he had also verbally requested this assignment from Superintendent Stupak. Nevertheless, as the high school principal testified, these assignments were not made, a new teacher was hired for the vacant position, and plaintiff was laid off.

We recognize the particular expertise of a school board in making educational decisions of this type. However, under the circumstances of this case and record evidence directly contradicting the school board’s other justifications for eliminating plaintiff’s position, we do not find this testimony substantially supports the Tenure Commission’s decision.

The recent holding by another panel of this Court in Chester v Harper Woods School Dist, 87 Mich App 235; 273 NW2d 916 (1978), does not limit our review in the instant case. In Chester, supra, the issues on appeal primarily presented a question of the Tenure Commission’s power to substitute its judgment for a school district’s in defining qualifications for open teaching positions. The panel concluded that, absent bad faith or arbitrariness, a school district’s definition of "qualified” is binding on review and may not be set aside. In addition, the teachers’ allegations of schedule juggling were also predicated on the issue of qualifications and no claim of subterfuge to circumvent the teachers’ tenure act was made. In the instant case, plaintiff’s qualifications are not in dispute. Rather, this Court is squarely presented with the issue of schedule manipulation as a subterfuge to dismiss a qualified, tenured teacher by eliminating his position. As the dissent in Chester, supra, points out, relying on the first opinion in Freiberg, supra, such an allegation of duplicity by a school board is reviewable de novo by the Teacher Tenure Commission; its decision is thus subject to scrutiny on appeal for compliance with the substantial evidence test.

Accordingly, we find that the defendant board of education manipulated teaching schedules to effectively dismiss plaintiff under the guise of a necessary reduction in personnel, in violation of the teachers tenure act. We reverse the State Teacher Tenure Commission’s decision and order the reinstatement of plaintiff, with back pay.

Having reversed the Tenure Commission, we order plaintiff’s reinstatement with reparation of lost salary pursuant to MCL 38.103; MSA 15.2003. In accordance with Shiffer v Board of Education of Gibraltar School Dist, 393 Mich 190; 224 NW2d 255 (1974), we remand to the Tenure Commission for determination of the amount of the back-pay award in this case with instructions (i) to deduct from the "salary” plaintiff would have earned all wages he actually earned that he would not have earned if he were employed as a teacher, and (ii) to consider any evidence the school district offers that plaintiff, through exertion of proper efforts, could have earned more.

The burden on the mitigation issue is on the school district, not the teacher.

Reversed and remanded to the Tenure Commission. Costs to plaintiff.


text:
    SISTERS OF MERCY, PROVINCE OF DETROIT, INC. v PENNFIELD TOWNSHIP
    Docket No. 77-3943.
    Submitted April 20, 1978, at Detroit.
    Decided June 13, 1978.
    Plaintiff Sisters of Mercy, Province of Detroit, Inc., was notified on November 24, 1975, by defendant Pennfield Township that real property owned by plaintiff which had been subject to a tax exemption since 1961 had been placed on the tax rolls for 1975, and that the taxes due thereon were payable on December 1, 1975. Following a series of communications between plaintiff and defendant that failed to resolve the question of plaintiff’s exemption, plaintiff filed, on March 14, 1977, a petition with the Michigan Tax Tribunal claiming the exemption and requesting that the assessment rolls be corrected. The Tax Tribunal dismissed the petition on the grounds that plaintiff had failed to file a copy of the petition with the school district in which the property was located and had failed timely to file the petition. Plaintiff appeals. Held:

    1. Dismissal by the Michigan Tax Commission of the petition seeking reinstatement of a tax exemption was mandated by the failure to protest the increased assessment to the township board of review, such protest being a prerequisite to the Tax Tribunal’s jurisdiction, notwithstanding the fact that the property owner was not notified of the revocation of the tax exemption until after the township board of review had completed its review process.
    2. Notice to a property owner by the supervisor or assessor of the township in which the property is located of an increased assessment caused by the revocation of a tax exemption must be made at least ten days before the meeting of the township board of review. Satisfaction of that notice requirement is a precondition to a valid increase in the tax assessment.
    Dismissal of the petition is affirmed; however, the tax assessment is invalid because notice of revocation of the tax exemption was not timely given.

      References for points in Headnotes

       71 Am Jur 2d, State and Local Taxation §§ 316, 320, 322, 325.
    72 Am Jur 2d, State and Local Taxation § 822.

       71 Am Jur 2d, State and Local Taxation §§ 316, 320, 322, 325.
    72 Am Jur 2d, State and Local Taxation § 823.

      1. Taxation — Tax Tribunal — Dismissal of Petition — Jurisdiction — Protest of Assessment — Statutes.
    Dismissal of a petition before the Michigan Tax Tribunal seeking reinstatement of a tax exemption is mandated by the failure to protest the increased assessment to the township board of review, such protest being a prerequisite to the Tax Tribunal’s jurisdiction, notwithstanding the fact that the property owner is not notified of the revocation of its tax exemption until after the township board of reviéw has completed its review process (MCL 205.735[1]; MSA 7.650[35][1]).
    2. Taxation — Assessments — Notice of Increase — Timely Notice — Statutes.
    Notice to a property owner by the supervisor or assessor of the township in which the property is located of an increased assessment caused by the revocation of a tax exemption must be made at least ten days before the meeting of the township board of review; satisfaction of that notice requirement is a precondition to a valid increase in the tax assessment (MCL 211.24c; MSA 7.24[3]).

      Colombo & Colombo (by Louis J. Colombo, John P. Hartwig and Lawrence F. Raniszeski), for plaintiff.

      Sullivan, Hamilton, Ryan, Schulz & Woodruff, P.C., for defendant.
    Before: D. F. Walsh, P.J., and D. E. Holbrook and R. M. Maher, JJ.
   Per Curiam.

Plaintiff appeals from the Michigan Tax Tribunal’s dismissal of its petition claiming exemption from taxation on its real property located within defendant township.

In 1961 plaintiff was granted a tax exemption on the subject property pursuant to MCL 211.7; MSA 7.7. On November 24, Í975, plaintiffs treasurer was notified by mail that its property had been placed on the tax rolls for 1975 and that taxes due thereon were payable December 1, 1975. A series of communications between plaintiff and the township supervisor failed to resolve the question of plaintiff’s exemption.

Consequently, on March 14, 1977, plaintiff filed a petition with the Michigan Tax Tribunal claiming the exemption and requesting that the assessment rolls be appropriately corrected. Upon defendant’s failure to file an answer within 30 days, plaintiff moved the tribunal for a default judgment. The tribunal denied the motion and dismissed the petition on two grounds: (1) that a copy of the petition had not been sent to the secretary of the school board in the district in which the property was located; and (2) that the petition was not timely filed. MCL 205.735(3); MSA 7.650(35)(3).

Plaintiff appeals the tribunal’s action claiming that defendant’s failure to give timely notice to plaintiff of revocation of the tax exemption precluded administrative or judicial review of that action, and that the tax imposed for 1975 was therefore invalid.

The contention that the tardy notification prevented plaintiff from challenging defendant’s action is correct. Even assuming that plaintiff had avoided the procedural pitfalls upon which the tribunal based its decision, the tribunal would have had no jurisdiction to hear the dispute because of plaintiff’s failure to protest the assessment to the board of review. MCL 205.735(1); MSA 7.650(350(1). Insofar as the board of review hears challenges to assessments in March, MCL 211.30; MSA 7.30, and must complete its review of assessments by the first Monday in April, MCL 211.30a; MSA 7.30(1), notification to the plaintiff in November of the tax year obviously afforded it no opportunity to protest the assessment to the board.

Therefore, although we must affirm the tribunal’s dismissal of the petition because MCL 205.735(1); MSA 7.650(35)(1) requires protest to the board of review as a prerequisite to the tribunal’s jurisdiction, it does not follow that defendant may enforce the tax imposed as the result of the assessment.

MCL 211.24c; MSA 7.24(3) required defendant’s supervisor or assessor to notify plaintiff no later than ten days before the meeting of the board of review of the increase in assessment. Satisfaction of that notice requirement is a precondition to a valid increase in a tax assessment. W & E Burnside, Inc v Bangor Twp, 77 Mich App 618; 259 NW2d 160 (1977). Accordingly, we hold that the defendant’s failure to satisfy the notice requirement of the above statute rendered the assessment and consequent tax invalid and unenforceable.

Costs to appellant.

       Plaintiffs motion for rehearing was denied by the tribunal, which explicitly ruled that the action was governed by the 1976 amendments to the statute. 1976 PA 365, effective December 23, 1976.

       That failure would oust the tribunal of jurisdiction under both the original and the amended versions of the statute. See, Imerman Screw Products Co v Hamtramck, 67 Mich App 727; 242 NW2d 505 (1976).

       This result is not inconsistent with the statutory language which states:
      "The failure of the property owner to receive notice shall not invalidate an assessment roll or an assessment on property.” MCL 211.24c; MSA 7.24(3).
      First, to construe that language as precluding invalidating an assessment where the supervisor failed to send any notice would nullify the entire statutory provision. We think a more reasonable interpretation to be that the Legislature did not intend to make actual notice precondition to a valid increase in assessment. See, Dow v Michigan, 396 Mich 192; 240 NW2d 450 (1976).
      Second, the effect given the statute in the instant case is consistent with both the legislative intent, W & E Burnside, Inc v Bangor Twp, 77 Mich App 618; 259 NW2d 160 (1977), and with the principles of due process. See, Dow v Michigan, supra, Fisher v Muller, 53 Mich App 110; 218 NW2d 821 (1974).


text:
    READY v CLARK EQUIPMENT COMPANY
    Docket No. 78-1977.
    Submitted April 5, 1979, at Detroit.
    Decided June 25, 1979.
    Leave to appeal denied, 407 Mich 888.
    Hilton Ready, Jr., an employee of Commodity Steel & Processing, Inc., was injured while operating a forklift truck. The lift truck was designed, manufactured and owned by Clark Equipment Company. Clark had leased the truck to Commodity Steel under a written lease agreement. The lease contained an indemnity clause in which Commodity Steel agreed to indemnify and hold Clark harmless for all risks arising from the possession, use and operation of Clark Equipment unless the loss was caused by Clark’s negligence. Ready brought an action against Clark for damages alleging negligent design and manufacture, failure to maintain and inspect to determine the safety of the equipment, negligent failure to warn Commodity employees of a dangerous condition, failure to repair the defective truck, and breach of warranty. Clark denied these allegations and added Commodity Steel & Processing, Inc., as a third-party defendant under the indemnity clause in the lease. Commodity Steel alleged that Clark was being sued for its own direct negligence, an exclusion in the lease, and moved for summary judgment claiming no cause of action existed against Commodity Steel. Clark opposed the motion claiming that the indemnity clause specifically includes such injuries making Commodity Steel liable to Clark. Summary judgment for third-party defendant Commodity Steel & Processing, Inc., Wayne Circuit Court, Thomas J. Foley, J. Clark Equipment appeals. Held:

    If Ready’s complaint had only alleged negligent design and manufacture of the forklift truck, this would constitute allegations of direct negligence and summary judgment would have been appropriate. However, the words of the complaint indicate some factual developments possible which may establish Clark’s right to indemnification. The averments that there was a failure to maintain and inspect and a failure to correct and repair the lift truck may have been intended to cover matters by not constituting direct negligence. Therefore, Clark’s allegation that Commodity Steel agreed, by contract, to indemnify Clark for claims arising out of the possession, use and operation of the equipment is not so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation § 429 et seq.

       73 Am Jur 2d, Summary Judgment §§ 26, 27.

       41 Am Jur 2d, Indemnity § 13.

       17 Am Jur 2d, Contracts § 276.
    41 Am Jur 2d, Indemnity § 13.

      Reversed and remanded with instructions.
    1. Action — Parties — Joinder of Parties — Indemnity — Workmen’s Compensation — Exclusive Remedy — Statutes.
    An employer may be joined as a third-party defendant on an indemnity theory without disturbing the exclusive remedy clause of the Worker’s Disability Compensation Act (MCL 418.131; MSA 17.237[131]).
    2. Judgment — Summary Judgment — Well-Pleaded Facts — Complaint — Issues of Fact — Court Rules — Appeal and Error.
    A motion for summary judgment for failure to state a claim upon which relief can be granted challenges the legal sufficiency of a plaintiff’s claim and is to be considered by an examination of the pleadings alone; a reviewing court is to accept as true the well-pleaded facts in plaintiff’s complaint and to determine whether these claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).
    3. Indemnity — Contracts •— Construction — Intentions of Parties — Circumstances and Situations.
    Indemnity contracts, like other contracts, are to be enforced so as to effectuate the intentions of the parties; intention is determined by considering not only the language used in the contract, but also the situation of the parties and the circumstances surrounding the contract.
    4. Indemnity — Contracts — Construction — Drafter — Indemnitee.
    Indemnity contracts are construed most strictly against the party who drafts them and the indemnitee.
    5. Judgment — Summary Judgment — Unenforceable Claim — Right to Recovery — Complaint — Indemnity — Issues of Fact.
    Summary judgment based upon a failure to state a claim upon which relief can be granted requires that a claim be so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery; where the words of a complaint indicate that there are some factual developments possible which may establish a right to indemnity, in a complaint for indemnity, summary judgment is improper.

      Harvey, Krüse & Westen, P.C. (by John F. Milan), for Clark Equipment Company.

      John N. Highland, for Commodity Steel & Processing, Inc.
    Before: Beasley, P.J., and Allen and D. C. Riley, JJ.
   Per Curiam.

Defendant, Clark Equipment Company, appeals a summary judgment granted in favor of third-party defendant, Commodity Steel and Processing, Inc., because of defendant Clark’s failure to state a claim upon which relief can be granted under GCR 1963, 117.2(1).

The present controversy arises out of an action brought by primary plaintiff, Hilton Ready, Jr., an employee of Commodity Steel, who was injured while operating a forklift truck. The lift truck was designed, manufactured and owned by Clark Equipment Company. Clark had leased the truck to Commodity Steel under a written lease agreement.

Ready brought suit against Clark for damages. In his complaint against defendant Clark, he alleged negligent design and manufacture of the lift truck and its safety features, negligently failing to maintain and inspect the lift truck to determine the safety of the equipment, negligently failing to warn Commodity Steel and its employees of the dangerous condition of the lift truck and negligently failing to repair the defective lift truck. He also alleged breach of warranty.

Clark denied these allegations and added Commodity Steel as a third-party defendant based on the following indemnity clause contained in the lease:

"Liability.
"Lessee assumes all risk and liability arising from Lessee’s possession, use and operation of each unit of equipment from the moment of delivery to Lessee to the moment of return to Lessor and agrees to indemnify and hold Lessor harmless from any and all of the following, whether the same be actual or alleged unless directly caused by Lessor’s negligence: all loss, damage, claims, suits, taxes, liens, penalties, fines, liability and expense (including attorney’s fees) howsoever arising or incurred because of such possession, use and operation of equipment including, but not limited to, damages for injuries or death to persons or injury to or destruction of property, claims and liens for storage, labor and materials and all loss of and damage to equipment.” (Emphasis added.)

Commodity Steel moved for and was granted summary judgment claiming that Clark was being sued for its own direct negligence and, since direct negligence was specifically excluded from the indemnity agreement, no cause of action existed against Commodity Steel.

Clark opposed the motion, asserting that the indemnity clause in the lease agreement specifically includes such injuries and, thus, Commodity Steel is liable to indemnify Clark.

The recent cases hold that an employer may be joined as a third-party defendant on an indemnity theory without disturbing the exclusive remedy clause of the Worker’s Disability Compensation Act.

One instance is where "the parties have entered into a written contract in which one party has clearly agreed to indemnify the other”. Another example would be in the context of common-law indemnity where the principal defendant suffers vicarious liability due to its relationship with the third party. The case at bar deals with a relationship imposed by contract.

In Minster Machine Co v Diamond Stamping Co, the Court examined the correct standard of review for the granting of a motion for summary judgment under GCR 1963, 117.2(1):

" 'A motion based solely on subsection 1, challenges the legal sufficiency of a plaintiff’s claim and is to be considered by an examination of the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974). [The] job [of] a reviewing court is to accept as true the well-pleaded facts in plaintiff’s complaint, * * *, Weckler v Berrien County Road Commission, 55 Mich App 7, 9; 222 NW2d 9 (1974), and to determine whether these claims are so "clearly unenforceable as a matter of law that no factual development can possible [sic] justify a right to recovery.” Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577 (1972).’ ”

Any conclusions which may reasonably be drawn from the factual allegations may be considered. Indemnity contracts, like other contracts, are to be enforced so as to effectuate the intentions of the parties. Intention is determined by considering not only the language used in the contract, but also the situation of the parties and the circumstances surrounding the contract. Indemnity contracts are construed most strictly against the party who drafts them and the indemnitee.

Applying these principles to the facts before us, we find that if the allegations of the principal complaint are proved to be true and the product is found to be defectively designed or manufactured or that Clark failed to inspect as alleged, then Clark is liable for its own acts, as they would constitute direct negligence and, under the agreement, there is no indemnification for direct acts of negligence by the lessor. However, we must also look to Clark’s third-party complaint to determine if summary judgment was correctly granted.

Paragraphs 3 through 5 of the third-party complaint state:

"3. That original plaintiffs Complaint alleges that original plaintiff was injured while operating some of the equipment which was leased to third party defendant.
"4. That third party defendant agreed by contract to indemnify and hold harmless third party plaintiffs from any claims arising out of the possession, use and operation of said equipment.
"5. If third party plaintiffs are held liable to the plaintiff, they would be entitled to indemnity from third party defendant because of its breach of contract, for contractual indemnity. A copy of said contract is in the possession of third party defendant.”

The words of the complaint indicate to us that there are some factual developments possible which may establish Clark’s right to indemnification. The averments of primary plaintiffs complaint state that there was a failure to maintain and inspect and a failure to correct and repair the lift truck. Such claims may have been intended to be covered by the indemnification agreement as not constituting direct negligence. Clark’s allegation that Commodity Steel agreed, by contract, to indemnify Clark for claims arising out of the possession, use and operation of the equipment is not so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. If Ready’s complaint had only alleged negligent design and manufacture of the forklift, we would hold that this would constitute direct negligence and summary judgment would have been appropriate. However, due to the further allegations, allegations which Clark claims are covered as indirect acts, we find that a right to recovery may exist.

Upon remand, under the court rules pertaining to third-party practice, the trial court has discretion to determine whether the issue of Commodity’s liability to Clark shall be determined in a separate trial or in the principal trial. In view of the fact that Clark has demanded a jury trial of the indemnification issue, the court should submit to the jury all issues of fact, theories or defenses presented with appropriate instructions regarding the law.

Reversed and remanded.

       MCL 418.131; MSA 17.237(131); Nanasi v General Motors Corp, 56 Mich App 652, 656-657; 224 NW2d 914 (1974), citing McLouth Steel Corp v A E Anderson Construction Corp, 48 Mich App 424; 210 NW2d 448 (1973).

        Dale v Whiteman, 388 Mich 698, 704; 202 NW2d 797 (1972).

        Minster Machine Co v Diamond Stamping Co, 72 Mich App 58; 248 NW2d 676 (1976).

         Id. at 61, citing to Bormans, Inc v Lake State Development Co, 60 Mich App 175, 179-180; 230 NW2d 363 (1975).

       Rowe v Colwell, 67 Mich App 543, 547; 241 NW2d 284 (1976).

        Title Guaranty & Surety Co v Roehm, 215 Mich 586; 184 NW 414 (1921).

         Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318; 253 NW2d 748 (1977).

       See, Diekevers v SCM Corp, 73 Mich App 78; 250 NW2d 548 (1976).

       Third-party complainant Clark has appropriately proceeded under GCR 1963, 204 in making its claim against Commodity.

       GCR 1963, 505.1, 505.2.