Watt v. Ann Arbor Board of Education , 234 Mich. App. 701 ( 1999 )

600 N.W.2d 95 (1999) 234 Mich. App. 701

William WATT, Appellant,
v.
ANN ARBOR BOARD OF EDUCATION, Appellee.
Connie Vanschelven, Charles Sikkenga, Hal Beyer, Chuck Sweany, and Charles E. Sikkenga, Appellants,
v.
Grand Haven Area Public Schools, Board of Education, Appellee.

Docket Nos. 210835, 210965, 211606-211609.

Court of Appeals of Michigan.

Submitted February 23, 1999, at Lansing. Decided April 2, 1999, at 9:10 a.m. Released for Publication June 29, 1999.

White, Przybylowicz, Schneider & Baird, P.C. (by Jeffrey C. Murphy), Okemos, for William Watt.

White, Przybylowicz, Schneider & Baird, P.C. (by William F. Young), Okemos, for Connie Van Schelven, Charles Sikkenga, Hal Beyer, Chuck Sweany, and Charles E. Sikkenga.

Miller, Canfield, Paddock and Stone, P.L.C. (by Charles A. Duerr, Jr.), Ann Arbor, for Ann Arbor Board of Education.

Scholten and Fant (by John S. Lepard and Rodney L. Schermer), Grand Haven, for Grand Haven Area Public Schools Board of Education.

Linda L. Bruin, amici curiae, Lansing, for Michigan Association of School Boards.

Mark H. Cousens, amici curiae, Southfield, for Michigan Federation of Teachers.

Before HOLBROOK, JR., P.J., and FITZGERALD and O'CONNELL, JJ.

PER CURIAM.

Following adverse decisions before the State Tenure Commission, each of the teachers in these cases filed a claim of appeal. Their claims of appeal were dismissed by orders of this Court stating that "[a] final order of the Tenure Commission is appealable by leave to the Court of Appeals" under M.C.L. § 38.104(7); MSA 15.2004(7). Appellants sought leave to appeal to the Supreme Court. In lieu of granting leave, the Supreme Court vacated this Court's orders and remanded the cases for plenary consideration of the question whether the 1993 amendments of the teacher tenure act, M.C.L. § 38.71 et seq.; MSA 15.1971 et seq., eliminated appeals of right from commission decisions. 459 Mich. 891, 905, 587 N.W.2d 503 (1998). We conclude that the orders previously entered in these cases were correct.

Before the 1993 amendments, which were enacted as 1993 PA 59 and 60, an aggrieved party seeking judicial review of a commission decision could either seek review pursuant to the Administrative Procedures Act, M.C.L. § 24.303; MSA 3.560(203), or pursue an appeal under the Revised Judicature Act, M.C.L. § 600.631; MSA 27A.631. See Hagen v. Dep't of Ed., 431 Mich. 118, 127, n. 3, 427 N.W.2d 879 (1988); Nestell v. Bridgeport-Spaulding Community Schools Bd. of Ed., 138 Mich. App. 401, 404, 360 N.W.2d 200 (1984); Elgammal v. Macomb Co. Intermediate School Dist. Bd. of Ed., 83 Mich.App. 444, 268 N.W.2d 679 (1978). Under both statutes, the initial appeal from a decision of the State Tenure Commission was to the circuit court. MCL 600.631; MSA 27A.631; MCL 24.303; MSA 3.560(203). At that time, all final decisions of the circuit court were appealable by right to this Court pursuant to MCR 7.203(A)(1).^[1]

The circuit court was eliminated from the appellate process by the 1993 amendments of the tenure act, specifically M.C.L. § 38.104(7); MSA 15.2004(7), which provides:

A party aggrieved by a final decision and order of the tenure commission may appeal the decision and order to the court of appeals in accordance with the Michigan court rules within 20 days after the date of the decision and order.

The plain language of this subsection states that the court rules are controlling. The applicable court rule, MCR 7.203, provides in relevant part:

(A) Appeal of Right. The court has jurisdiction of an appeal of right filed by an aggrieved party from the following:

* * *

(2) A judgment or order of a court or tribunal from which appeal of right to the Court of Appeals has been established by law or court rule;

* * *

(B) Appeal by Leave. The court may grant leave to appeal from:

* * *

(3) a final order of an administrative agency or tribunal which by law is appealable to or reviewable by the Court of Appeals or the Supreme Court....

Thus, unless an appeal of right has been categorically established by law or court rule, appeal is by leave. In this case, the Legislature did not expressly state that a party aggrieved by a decision and order of the State Tenure Commission may appeal by right to the Court of Appeals; therefore, the applicable court rule is MCR 7.203(B)(3), and appeal may be had only by leave.

Appellants contend that appeals from State Tenure Commission decisions are governed by MCR 7.203(A)(2), arguing that if the Legislature had intended appeals to be by leave it would have so provided. This approach is contrary to MCR 7.203(A)(2), which requires that an appeal of right to this Court be "established by law or court rule," and conflicts with this Court's statutory basis of jurisdiction, set forth at M.C.L. § 600.308; MSA 27A.308, which specifically lists the judgments appealable by right and states that "any other judgment ... as determined by court rule" is appealable by leave. Appeals from agency decisions are not listed in the statute among those judgments appealable as of right. Had the Legislature intended to provide appeals of right from State Tenure Commission decisions, it easily could have expressed such an intent in the amendments. Provisions not included by the Legislature should not be included by the courts. In re Wayne Co. Prosecutor, 232 Mich.App. 482, 486, 591 N.W.2d 359 (1998); In re Schnell, 214 Mich.App. 304, 310, 543 N.W.2d 11 (1995). Thus, we find appellants' argument that the Legislature intended to preserve appeals of right from commission decisions unpersuasive.

Appellants' and amicus curiae Michigan Federation of Teachers' arguments premised on the spirit of the tenure act or its remedial nature are unavailing in light of the Legislature's presumed awareness of the court rules and the requirement that an appeal of right be expressly provided for. Gordon Sel-Way, Inc. v. Spence Bros., Inc., 438 Mich. 488, 505, 475 N.W.2d 704 (1991). Moreover, to the extent their arguments are based on policy considerations balancing the need for extensive review of tenure cases versus the goal of administrative efficiency, we note that "[t]his Court will not interpose a policy-driven interpretation on the plain language of a statute in which the Legislature has chosen among competing policy concerns." Verbison v. Auto Club Ins. Ass'n, 201 Mich.App. 635, 640, 506 N.W.2d 920 (1993). As we have noted, had the Legislature concluded that an appeal of right was essential to the purposes of the act, it would have provided for one.

Appellants also contend that an appeal of right from decisions of the State Tenure Commission has been established in published opinions of this Court, specifically Parker v. Byron Center Public Schools Bd. of Ed., 229 Mich.App. 565, 582 N.W.2d 859 (1998), and Satterfield v. Grand Rapids Public Schools Bd. of Ed., 219 Mich.App. 435, 556 N.W.2d 888 (1996).^[2] In both those cases, this Court began its opinion with the introductory statement, "[Appellant] appeals as of right from a [decision of the State Tenure Commission]." None of the cases cited by appellants specifically addressed the issue now before the Court. The "as of right" language was merely a misstatement of the procedural posture of the case that has no binding effect on subsequent decisions because the question presently at issue was not briefed, argued, or decided in those cases. For this reason, the statements were obiter dicta that are not binding precedent pursuant to MCR 7.215(H)(1). Horace v. City of Pontiac, 456 Mich. 744, 754-755, 575 N.W.2d 762 (1998).

Finally, appellants argue that an appeal of right is constitutionally mandated by Const. 1963, art. 6, § 28, which provides in relevant part that "All final decisions ... of any administrative ... agency ... which are ... quasi-judicial and affect private rights ... shall be subject to direct review by the courts as provided by law." However, this constitutional provision requiring "direct review by the courts" has been consistently interpreted by the courts as encompassing appeals by leave. Evans v. United States Rubber Co., 379 Mich. 457, 461, 152 N.W.2d 641 (1967); Viculin v. Dep't. of Civil Service, 386 Mich. 375, 392, 192 N.W.2d 449 (1971). Consequently, we find this argument meritless.

Appellants' claims of appeal are dismissed without prejudice to the filing of applications for leave to appeal in each of these cases.

NOTES

[1] In 1994, MCR 7.203(A) was amended to provide that circuit court judgments issued on appeal from any other court or tribunal were excepted from the class of circuit court decisions appealable by right. See MCR 7.203(A)(1)(a). Thus, if the Legislature had not changed the tenure act in 1993, appellants' appeals would still be by leave as of 1994.

[2] Appellants cite an unpublished case, Ardis v. Dearborn Heights School Dist. No. 7 Bd. of Ed., issued August 2, 1996 (Docket No. 183953), for the same proposition. However, the case has no precedential value pursuant to MCR 7.215(C)(1) and is merely cumulative of the published cases on which appellants rely.