Smith v. Crime Victims Compensation Board ( 1983 )

130 Mich. App. 625 (1983) 344 N.W.2d 23

SMITH
v.
CRIME VICTIMS COMPENSATION BOARD

Docket No. 64698.

Michigan Court of Appeals.

Decided November 22, 1983.

Edick & Esper (by Robert E. Edick), for plaintiff.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Donald E. Erickson, Assistant Attorney General, for defendant.

Before: M.J. KELLY, P.J., and HOOD and SHEPHERD, JJ.

PER CURIAM.

On April 16, 1982, the trial court denied defendant's motion for summary judgment. Defendant appeals by leave granted.

On December 24, 1977, plaintiff was shot and severely injured. About 11 months later, on November 13, 1978, she filed a claim with defendant. Defendant immediately turned down the application ruling that it had not been filed within 30 days after the crime, nor had good cause been shown as required by MCL 18.355(2); MSA 3.372(5)(2).

On October 8, 1981, defendant granted a rehearing which was held on December 6, 1981. About two months later, however, in a two-page decision dated February 2, 1982, defendant's full board affirmed the former chairman's 1978 decision to deny benefits.

Subsequently, on March 5, 1982, plaintiff sued in circuit court for a writ of superintending control.^[1] She alleged that the board's chairperson had originally told her that filing late would present no problem and that at the administrative hearing defendant had refused to allow her attorney to address the issue of whether there was good cause for filing late. Additionally, she alleged that defendant's opinion was inadequate.

MCL 24.285; MSA 3.560(185) states:

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

Plaintiff alleges, and we agree, that defendant's opinion falls far short of these requirements. Plaintiff, therefore, argues that she may pursue her action in circuit court because she has no other adequate remedy at law.

Circuit courts have concurrent jurisdiction with the Court of Appeals over actions for mandamus involving state officers. Waterford School Dist v State Bd of Ed, 98 Mich. App. 658, 665-666; 296 NW2d 328 (1980), lv den 409 Mich. 934 (1980). However, because mandamus is an extraordinary remedy, it may not be used if the party has an adequate alternative remedy. Warber v Moore, 126 Mich. App. 770; 337 NW2d 918 (1983).

A final decision of the Crime Victims Compensation Board is appealable under MCL 18.358; MSA 3.372(8) "by leave to appeal * * * in the court of appeals". The availability of an application for leave to appeal is an adequate remedy. Moore v Ninth District Judge, 69 Mich. App. 16; 244 NW2d 346 (1976), lv den 397 Mich. 848 (1976).

Plaintiff presents a compelling argument why, despite being able to appeal to this Court by leave granted, she still lacks an adequate alternative remedy. Judicial review of a final agency determination under the Administrative Procedures Act is limited to the record. Greenbriar Convalescent Center, Inc v Dep't of Public Health, 108 Mich. App. 553, 562; 310 NW2d 812 (1981), lv gtd 412 Mich. 870 (1981); Human Rights Party v Michigan Corrections Comm, 76 Mich. App. 204; 256 NW2d 439 (1977). An appeal must be brought before an appellate court on a complete and comprehensive record. Kent v Bell, 374 Mich. 646; 132 NW2d 601 (1965). An appellate court is not to supplement gaps in the record by second-guessing. People v Semchena, 7 Mich. App. 302, 311; 151 NW2d 895 (1967). If plaintiff had directly sought leave to appeal from defendant's decision, defendant could have moved to strike any presentations of fact or argument not included in the record. Good v Modern Globe, Inc, 346 Mich. 602, 612; 78 NW2d 199 (1956).

However, despite these considerations, MCL 18.358; MSA 3.372(8) does provide an adequate alternative remedy. This Court has the power to remand a case back to an agency if the record is inadequate for review. GCR 1963, 806.7. Therefore, we are reversing the trial court's order and dismissing the case from circuit court.

On the other hand, we have decided that the best course in the present case is to remand to the Crime Victims Compensation Board and order it to write a new opinion complying with MCL 24.285; MSA 3.560(185). If plaintiff still feels aggrieved after the new opinion is written, she may appeal to this Court pursuant to MCL 18.358; MSA 3.372(8).

Reversed and remanded. We do not retain jurisdiction. No costs.

NOTES

[1] Plaintiff later changed the request to a writ of mandamus.