Falk v. CIVIL SERV. COMM. OF MACOMB CTY. , 57 Mich. App. 134 ( 1974 )

57 Mich. App. 134 (1974) 225 N.W.2d 713

FALK
v.
CIVIL SERVICE COMMISSION OF MACOMB COUNTY

Docket No. 17234.

Michigan Court of Appeals.

Decided December 5, 1974.

Munger & Crum, P.C., for plaintiff.

Office of Macomb County Civil Counsel (by Philip J. Anderson, Assistant Civil Counsel), for defendants.

Before: BASHARA, P.J., and DANHOF and CHURCHILL,^[*] JJ.

DANHOF, J.

Plaintiff was a deputy with the Macomb County Sheriff's Department. His employment was terminated on January 17, 1969 by the defendant sheriff as a result of charges arising from the improper operation of his personal automobile. Hearings before the Macomb County Civil Service Commission were held, and an order was issued on October 2, 1969 upholding the dismissal. Plaintiff took an appeal to the circuit court which affirmed the Commission. Plaintiff's motion for a rehearing was denied, and he made application for leave to appeal which was granted by this Court.

Plaintiff had been employed as a deputy since October 8, 1964. He had been given 3 temporary suspensions, all of them more than a year prior to the permanent suspension of which he now complains. Indirect reference to these incidents was made in the letter informing plaintiff of his termination. The letter was captioned "Suspension; conduct unbecoming an officer", and it listed six reasons for this action, three of which grew out of the events of January 15, 1969.

The final incident which precipitated the plaintiff's discharge occurred during the early morning hours of January 15, 1969. Plaintiff, while off duty, drove his automobile at a high rate of speed under foggy conditions. He was chased and stopped by a police officer who believed that the plaintiff was intoxicated, but who did not make an arrest or issue a traffic citation. Instead, the officer made an unofficial report to his superiors, and the sheriff was notified. The sheriff promptly transmitted the letter dismissing plaintiff from the department.

Plaintiff's first argument on appeal is that his discharge for conduct unbecoming an officer deprived him of due process because the standard is so vague that it is meaningless. In support of his argument, plaintiff cites Civil Service Commission of the City of Hamtramck v Pitlock, 44 Mich App 410; 205 NW2d 293 (1973) and Sponick v Detroit Police Department, 49 Mich App 162; 211 NW2d 674 (1973).

While plaintiff's argument may be of some merit, it has not been properly preserved for appeal. At no time throughout the entire proceeding before both the Civil Service Commission and in the circuit court, has this issue been raised. It cannot be raised now. An appellate court's "function is restricted to the test of questions which, in the court below, have been raised and saved for review". Swartz v Laurencelle, 371 Mich 153, 166; 123 NW2d 244, 251 (1963).

The principle is firmly established that even a constitutional question which has not been raised below will not be passed upon on appeal. Wanstead v Fisher, 278 Mich 68; 270 NW 218 (1936); Makar v People's Wayne County Bank of Dearborn, 284 Mich 489; 280 NW 31 (1938); Jesiek v Banfield, 286 Mich 440; 282 NW 429 (1938); Diggs v State Board of Embalmers & Funeral Directors, 321 Mich 508; 32 NW2d 728 (1948); Mitchell v Grewal, 338 Mich 81; 61 NW2d 3 (1953); Brookdale Cemetery Assoc v Lewis, 342 Mich 14; 69 NW2d 176 (1955); and Dearborn v Village of Allen Park, 348 Mich 449; 83 NW2d 447 (1957). This principle has been applied to constitutional attack urging denial of due process. Maurer v Greening Nursery Co, 199 Mich 522; 165 NW 861 (1917); Kelley v Citizens Mutual Insurance Co, 37 Mich App 239; 194 NW2d 499 (1971). More specifically, the principle has also been applied to preclude untimely objection to the constitutionality of administrative agency regulations. Bullerman v Employment Security Commission, 25 Mich App 242; 181 NW2d 330 (1970), lv den 384 Mich 758 (1970); Hernandez v Consumers Power Co, 51 Mich App 288; 214 NW2d 846 (1974). We apply this well-settled principle to the present case and hold that plaintiff's challenge to the constitutionality of the departmental regulation will not be considered for the first time on this appeal.

As his second issue, plaintiff alleges that the Commission erred by failing to admit into evidence the entire manual of rules and regulations of the Macomb County Sheriff's Department. Plaintiff sought to prove that the sheriff had not followed his own rules in firing the plaintiff in that he had not conducted an adequate investigation.

Plaintiff's theory is factually unsupportable. The record discloses, and the circuit court found, that the Commission did admit the manual of rules into evidence at the hearing. Plaintiff was allowed to thoroughly cross-examine the sheriff to reveal the extent of his investigation. Plaintiff presented this argument as fully as possible; he cannot now complain merely because the Commission was not persuaded by it.

Plaintiff's third objection concerns the sufficiency of the "basis" upon which the Commission sustained the sheriff, and upon which the circuit court in turn affirmed the order of the Commission. Plaintiff contends that evidence of misconduct occurring more than 90 days before he was notified of the sheriff's action was used against him contrary to the provisions of MCLA 51.362; MSA 5.1191(112). As to this part of his argument, the record again belies plaintiff's contention. The transcript of the proceedings before the Civil Service Commission establishes that, although evidence of prior misconduct was offered, such evidence was excluded.

The remainder of this objection can more accurately be stated as whether or not there exists competent, material and substantial evidence on the whole record made before the Commission to support its order. Const 1963, art 6, § 28; Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 449 (1971). The record reveals that plaintiff himself testified that he drove 10 miles per hour over the speed limit, and that he made a prohibited turn while being pursued by a police car. This is certainly competent, material and substantial evidence of conduct unbecoming an officer, or, in the language of the statute, "failure of good behavior" to constitute sufficient cause for plaintiff's discharge.

The last contention advanced by plaintiff is that he was denied equal protection because he was not allowed to present evidence before the Commission to prove that other deputies who had committed similar traffic offenses were not disciplined as he was. Even if such evidence had been admitted, it would not have established an "arbitrary classification" and, hence, it would not have shown intentional discrimination violative of plaintiff's constitutional rights. Sponick v Detroit Police Department, 49 Mich App 162, 205-206; 211 NW2d 674, 694 (1973).

Affirmed.

BASHARA, P.J., concurred.

CHURCHILL, J. (dissenting).

I am satisfied that plaintiff made sufficient timely effort to challenge the validity of the standard by which he was being judged.

On the authority of Civil Service Commission of the City of Hamtramck v Pitlock, 44 Mich App 410, 412; 205 NW2d 293-294 (1973), and Sponick v Detroit Police Department, 49 Mich App 162, 174; 211 NW2d 674, 679 (1973), it is my opinion that the order of the circuit court sustaining the Civil Service Commission should be vacated and the case should be remanded for further appropriate proceedings.

NOTES

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