Civil Service Commission v. Department of Labor , 424 Mich. 571 ( 1986 )

Levin, J.

The questions presented concern the constitutionality of legislation, 1985 PA 103, that removes workers’ compensation hearing officers from the state civil service by organizing them in a board.

The constitution provides that the state civil service system consists of "all ... in the state service” other than those specifically excepted or exempted. "[Mjembers of boards and commissions” are excepted.¹ Act 103 organizes workers’ compensation hearing officers in a "Board of Magistrates.”²

The circuit judge held that the hearing officers are not members of a "proper” board or commission, and that §213 (establishing the Board of Magistrates) of Act 103 is an unconstitutional attempt to evade the constitutional limitation. This Court granted bypass of the Court of Appeals. We reverse and hold that § 213 of Act 103 is constitutional.

I

The challenged provisions were enacted in conjunction with a provision of Act 103 that eliminates de novo review by the workers’ compensation appellate tribunal (presently the Workers’ Compensation Appeal Board), hereafter under Act 103 to be known as the Workers’ Compensation Appellate Commission, of decisions of workers’ compensation hearing officers (presently the referees), hereafter to be known as magistrates. A magistrate’s decision is to be considered conclusive by the appellate commission if supported by competent, material, and substantial evidence on the whole record.³ The Legislature sought thereby to reduce the delay in adjudicating workers’ compensation claims, which had been attributed to a large backlog in the wcab resulting from the appeal of seventy-five to eighty-five percent of referee awards.⁴

Cases filed after March 31, 1986, are to be heard by members of the Board of Magistrates. The position of hearing referee is eliminated next year, as of March 31, 1987.

A

Act 103 reduces the number of hearing officers from thirty-nine referees⁵ to thirty magistrates.⁶ The number of members of the appellate tribunal is reduced from fifteen members of the wcab to seven members of the appellate commission.⁷

A qualifications advisory committee, with six members appointed by the Governor, is created to develop a written examination to be administered to applicants for the position of magistrate, to recommend persons for appointment by the Governor to the Board of Magistrates and appellate commission,⁸ and to evaluate biannually the performance of magistrates. The committee may recommend suspension or removal.⁹

The Governor is empowered to appoint the magistrates and, as before, the members of the appellate tribunal (the appellate commission).¹⁰ The authority of the director of the Bureau of Workers’ Compensation to appoint workers’ compensation hearing officers¹¹ is, in effect, eliminated.

The term of office of both members of the Board of Magistrates and of the appellate commission is four years.¹² Civil service system tenure for workers’ compensation hearing officers (the referees) is accordingly eliminated. The continuing tenure in office of hearing officers, as well as (as before) of members of the appellate tribunal, is subjected to the political process. Additionally, the Governor is barred from reappointing as a member of the board or commission a person who has served for twelve years.¹³ The Governor may remove a member for good cause, including lack of productivity or other neglect of duties.¹⁴

A chairperson of the board and a chairperson of the commission are to be appointed by the Governor from among the members who serve in the office of chairperson at the pleasure of the Governor. The chairperson may establish productivity standards that are to be adhered to by the employees and members of the board or commission and has general supervisory control of and is in charge of the employees and the assignment and scheduling of the work of the board or commission.¹⁵ The power of the director of the bureau to assign cases to the hearing officers¹⁶ is thereby eliminated.

The board and commission are both authorized to employ legal assistants for the purpose of legal research and otherwise assisting the individual members and the board and commission. The board and commission are also both authorized to promulgate rules and administrative hearing procedures.¹⁷

B

Magistrates will be required to file concise written opinions stating reasons for decisions, including findings of fact and conclusions of law.¹⁸ The referees were expected only to state their decision in conclusory terms and ordinarily did so by filling in the blank spaces on a one-page printed-form order.

As before, the hearing officer’s decision is final unless appealed¹⁹ and seventy percent of the compensation awarded must be paid to the injured worker or his dependents during the pendency of an appeal to the appellate commission.²⁰

The hearing officer’s decision is reviewable, as before, by a three-member panel of an appellate tribunal, the appellate commission.²¹ A panel’s decision is reviewable by the entire commission on request of the chairperson if the chairperson concludes that the decision may establish a precedent with regard to workers’ compensation in this state, or upon request of two or more members of the commission.²² Decisions of a panel of the workers’ compensation appeal board are the "final decision of the board.”²³

The workers’ compensation appeal board reviews referee decisions de novo, generally on the record made before the referee, although it is authorized to receive additional evidence.²⁴ The findings of fact of a magistrate are to be considered conclusive by the commission if supported by competent, material, and substantial evidence on the whole record, defined as such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusions. The appellate commission may authorize the receipt of additional evidence, but it is limited to a review of only those specific findings of fact and conclusions of law that the parties have requested be reviewed. The review is to be both a qualitative and quantitative analysis of the evidence to assure a full, thorough, and fair review.²⁵

As before, on application, not as of right, judicial review is obtainable in the Court of Appeals and this Court.²⁶ Findings of fact made by the appellate commission, acting within its powers, in the absence of fraud, shall be conclusive.²⁷

C

Cases filed after March 31, 1986, and those theretofore filed, not heard by March 31, 1987, are to be heard by the magistrates. The referees will continue to hear cases filed on or before March 31, 1986. The position of hearing referee is abolished as of March 31, 1987,²⁸ The Workers’ Compensation Appeal Board is eliminated as of July 1, 1989, or earlier if there are no more cases to be decided by the appeal board.²⁹ The Governor may appoint additional members to the appeal board to expedite decision in cases before the board which, in 1984, had a five- to six-year backlog.³⁰

D

Included in the legislation are a number of significant substantive and other procedural reforms. The Legislature anticipated that the establishment of the Board of Magistrates, and the consequent elimination of the position of hearing referee and their civil service tenure, would be challenged. It is provided that if the creation of the Board of Magistrates is found to be invalid by this Court, some of the other amendments shall also be invalid and are not severable, while others shall nevertheless be valid and are severable.³¹

II

Act 103, reorganizing the adjudicative function in workers’ compensation cases, was based on the recommendations in the report on workers’ compensation in Michigan, submitted in December, 1984, by Professor Theodore St. Antoine, the Governor’s special counselor on workers’ compensation.³²

A

The author of the report saw no reason for major structural changes at the referee level. The backlog at the referee level was declining, and, with the recent addition of ten additional referees, the bureau’s aim of deciding ninety percent of all contests within nine months appeared feasible and satisfactory.³³

The situation at the appeal board level was, however, seen as very different. During the past decade, between seventy-five and eighty-five percent of all referee awards were appealed. The board’s backlog had increased from 2,000 cases to almost 7,000 in eight years, the equivalent of five to six years’ output by the appeal board.³⁴

De novo review, described in the report as an "open invitation to disappointed litigants and their lawyers to seek to retry the case from scratch,”³⁵ was seen as the principal cause. Having in mind that there is now a large body of precedent, that over the years referees were affirmed on questions of law about sixty-six percent of the time and on issues of fact about eighty-two percent of the time, and the backlog at the appellate level, de novo review, Professor St. Antoine said, is no longer "a luxury that can be afforded, or a procedure that is needed” and should be eliminated.³⁶ A referee should become a "true-decision maker,” and the decision at that level "a much more dispositive step in the administrative process.”³⁷

Drawing on an earlier report by the former Chief Judge of the Court of Appeals, T. John Lesinski, Professor St. Antoine recommended that the referees be required to support their decisions with findings of fact and conclusions of law. Their findings of fact should be conclusive if supported by competent, material, and substantial evidence on the whole record.³⁸

The appeal board, Professor St. Antoine said, should be "streamlined,” by creating a new five- or possibly seven-member board, which should be able to handle the anticipated reduced number of appeals, given the substantially reduced record-reading and fact-finding responsibilities, and the use of legal assistants.³⁹

Although the constitution provides that the civil service commission shall "determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service,”⁴⁰ the commission had permitted department heads and the boards and commissions to appoint any member of the state bar as a hearing officer, hearing examiner, or referee.⁴¹ Workers’ compensation referees had acquired civil service status as a result of appointment in that manner. Although Professor St. Antoine could find no hard data providing significant support for accusations that referees were biased, he "concede[d] that a perception of bias or of political favoritism in their appointment can be almost as damaging to the acceptability of their awards.”⁴² He urged the Legislature or the Civil Service Commission "to establish a bipartisan [administrative law judge][⁴³] Qualifications Advisory Committee to interview and evaluate prospective candidates, with ratings to be transmitted confidentially to the appointing authority.”⁴⁴

B

One month after Professor St. Antoine’s report was issued, a bill was introduced in the Legislature incorporating his principal recommendations. The appellate tribunal would be reduced from fifteen members to seven, and would be renamed the appellate commission.⁴⁵ Workers’ compensation hearing officers would be known as hearing judges and would be required to file written opinions stating findings. De novo review would be eliminated, and the findings of fact and conclusions of law⁴⁶ of a hearing judge would be conclusive if supported by competent, material, and substantial evidence on the whole record.⁴⁷ Hearing judges and members of the commission would be appointed by the Governor on the recommendation of a newly created seven-member workers’ compensation council.⁴⁸ ,

The bill made virtually no changes in the duties and functions of the hearing officers, except the requirement that a written opinion shall be filed. The bill did not organize the hearing officers in a board.

The first full Senate revision would have created a workers’ compensation commission and designated both the hearing and appellate members as workers’ compensation commissioners.⁴⁹ This was done according to the accompanying analysis to remove the hiring and firing constraints of civil service and to ensure accountability of the hearing officers within the "administrative system.”⁵⁰ The House substitute, which became Act 103, separated the single workers’ compensation commission into a workers’ compensation appellate commission and a workers’ compensation Board of Magistrates.⁵¹

III

The Civil Service Commission and the referees contend that the Legislature, in removing the workers’ compensation hearing officers from the classified service, defied the findings and recommendations of Professor St. Antoine, who saw no reason for major structural changes at the hearing officer level.⁵² The reforms he recommended were all embodied in the first draft of the amendatory legislation which left the hearing officers in the classified service.⁵³

It is argued that none of the referees’ functions or duties are assigned to the board. The sole purpose was to remove the referees from the civil service system. The magistrates are no more a board than were the referees. The legislation does not take the initial decisionmaking function from the classified referees and give it to the board. It keeps that function with the individual hearing officers who act individually and not collectively.⁵⁴

The Civil Service Commission and the referees observe that the terms "board” and "commission” have been said to be synonymous,⁵⁵ and to mean a "body of persons” charged with a specific function or with the transaction or superintendence of some particular business.⁵⁶

It is further observed that the referees perform functions that are not significantly different from those of federal administrative law judges.⁵⁷ The referees argue that nothing in the act suggests that "all thirty 'magistrates’ are to hear cases en banc or en masse to preside over each hearing in the interests of 'economy’ or 'administrative efficiency.’ The decisive function remains personal and essentially a solitary responsibility. It is not a function of any 'board’ or 'commission.’ ”

The act in many sections speaks of action to be taken by "a” or "the” workers’ compensation magistrate.⁵⁸ These specific provisions indicate, it is argued, that the work of the magistrates is not a collegial or collective enterprise. The hearing is not before a board, commission, or other collective body, but before a single magistrate.

IV

The circuit judge agreed with the characterization advanced by the Civil Service Commission and the referees. He entered a judgment declaring that § 213 of Act 103, establishing' the Board of Magistrates, is unconstitutional. The opinion filed by the judge stated that on consideration of this Court’s decision in Case v Liquor Control Comm, 314 Mich 632; 23 NW2d 109 (1946), he had concluded that the board of magistrates was "not a body of importance and dignity.[⁵⁹] It is merely a tool, an artifice whose sole purpose is to legitimize the removal of positions from the classified service.”

The judge observed that the magistrates would "operate almost exclusively as individuals. Essentially, they are administrative law judges who individually conduct hearings.” "[T]heir duties and functions are substantially similar to those of their predecessors, the hearing referees who are classified employees.” The magistrates have no duties and functions which they "are required to discharge as a collective body,” although they "are authorized to act as a collective body” in employing a support staff and promulgating rules on administrative hearing procedures. "In comparison to the many and important functions discharged by the magistrates individually, these two responsibilities, which are of a type commonly entrusted to single officials, and which may be corporately undertaken by the magistrates, are insignificant. In the opinion of this Court, they fall far short of conferring importance and dignity and are insufficient to constitute a proper board.” (Emphasis in original.)

V

It does not ineluctably follow from the truisms that magistrates are expected to perform, individually and not collegially or collectively, their principal function of hearing and deciding cases, that boards and commissions ordinarily have two or more members and make their decisions collectively, and that the magistrates were organized in a board to remove workers’ compensation hearing officers from the civil service system, that the Legislature acted unconstitutionally in creating a board of hearing officers to perform a function formerly performed by persons covered by civil service.

To be sure, boards or commissions are generally composed of two or more persons, and thus the common understanding of most people would indeed be that a board or commission is composed of two or more persons. But that only replicates the truism that ordinarily boards or commissions are composed of two or more persons. It does not follow that a board or commission cannot be composed of one person or that all members of a board or commission must act collectively in every matter or in some matters.

A

In 1940, when the civil service amendment was added to the constitution, there were two commissions, the Racing Commission and the Corporation and Securities Commission, that were essentially one-person commissions.

The Racing Commission was composed of one person, the Racing Commissioner, who was appointed by and served at the pleasure of the Governor.⁶⁰

The Corporation and Securities Commission was essentially a one-person commission.⁶¹ The one commissioner of that commission was appointed for a fixed term by the Governor.⁶²

The Racing Commissioner, for the Racing Commission, and the Corporation and Securities Commissioner, for the Corporation and Securities Commission, acted alone. There was no decisionmaking by either commission through persons acting collegially as members of a collective body or entity.

Just as there can be a one-person commission, there can be a one-person board. The Business Corporations Act provides that a board of directors "shall consist of 1 or more members.”⁶³

The civil service commission, at a meeting on March 6, 1941, adopted an "order” declaring that among the boards and commissions "exempt” from the state civil service are the one-member Corporation and Securities Commission and the one-member Racing Commission.⁶⁴

B

The Workers’ Compensation Appeal Board no longer carries out its function acting as a collective body or entity.

The primary, indeed the only, function of the wcab — like the employment security appeal board/board of review⁶⁵ — is adjudicative, to hear and decide appeals from orders of referees and the director⁶⁶ arising out of claims for workers’ compensation filed with the bureau. In discharging that function, the fifteen-member wcab sits in panels of three. Since 1980, the decision reached by a majority of the three members assigned to hear an appeal is the final decision of the wcab.⁶⁷ Thus, two of the fifteen members of the wcab decide the appeal, and their decision then becomes the decision of the wcab without consultation or deliberation with, or participation or voting by, the other twelve members of the wcab. There is no decisionmaking by the entire board acting as an entity.

Act 103 provides that matters now pending before the wcab shall be heard by a panel of two members of the wcab and that their decision shall be the final decision of the wcab. Only if they cannot reach a decision is a third member to be designated, in which event the decision of the third member shall be controlling and shall be considered to be the final decision of the wcab. Act 103 does not in terms require that the third member participate in a "collective” decision.⁶⁸

If Act 103 were held to be unconstitutional, the wcab would continue to act in panels,⁶⁹ now of two, or on occasion three, and the decision of a majority — two of a three-member panel — would continue to constitute the decision of the fifteen-member wcab. The wcab would continue to perform its only function, not as a collective body or entity, but in panels of two or three._

c

Before the wcab was created in 1955,⁷⁰ the work thereafter and now done by the wcab was done by the four-member Workmen’s Compensation Commission,⁷¹ the successor of the Industrial Accident Board,⁷² with the aid of deputies who were grandfathered as referees when that office, at the time the wcab was created, was established.⁷³

The original 1912 enactment provided that a claim for workers’ compensation would be heard by a "committee of arbitration” consisting of an employer’s and employee’s representative and one member of the Industrial Accident Board; unless a claim for review was filed, the committee’s decision would stand as the decision of the Industrial Accident Board.⁷⁴

By 1919, the act had been amended to state that the board could name one of its employees, called a deputy member, to sit as a third member of the committee of arbitration.⁷⁵ The decision of the committee, none of whom would then be members of the board, would stand as the decision of the board unless a claim for review was timely filed.⁷⁶

In 1921, the committee of arbitration was eliminated except in name. If the parties could not agree, the hearing was to be conducted by one person, either by a member or deputy member. "The member or deputy member so designated shall be known as a committee of arbitration wherever the phrase 'committee of arbitration’ is used in the act.” The decision of the member or deputy member would, as before, stand as the decision of the board unless review by the board⁷⁷ or commission⁷⁸ was timely sought.

Accordingly, from 1912 until 1955 — for over forty years — unless review of a workers’ compensation hearing officer’s decision was timely sought, the decision of a single member or employee of the board or commission would stand as the decision of the full board or commission without, consequently, any decisionmaking by the board or commission as a collective body or entity.

D

The Liquor Control Commission has been organized as a unified commission with a hearing division, which does not act collectively, and an appellate division, which does, for nearly thirty years, since 1957. There are two hearing commissioners and three administrative commissioners.⁷⁹ The hearing commissioners replaced the members of the Board of Hearing Examiners established under the 1945 act held to be excepted from civil service in Case, discussed in Part VI.⁸⁰ An administrative appeal may be allowed in the discretion of the three administrative commissioners who for this purpose are constituted an appeal board.⁸¹

The hearing commissioners, as did the hearing examiners, hear individually and not collectively complaints seeking license suspension or revocation. Since 1945, either a member of the Board of Hearing Examiners or (since 1957) a member of the commission described (since 1976) as a hearing commissioner has acted individually in hearing complaints against licensees. There has been no decisionmaking either by the board or the commission as an entity at the hearing level. The only collective action occurs if and when an appeal is allowed by the appeal board. If an appeal is allowed, the decision of two, a majority of the administrative commissioners, stands as the decision of this five-member commission.

If the workers’ compensation hearing function had been reorganized, in the manner of the Liquor Control Commission, as a unified commission, with a hearing division and an appellate division,⁸² there would then be as much collective decision-making at the hearing level by the entire unified commission as there was between 1912 and 1955 in workers’ compensation cases where, after decision by the member or deputy member who conducted the hearing, no further administrative review was sought. And there would then be as much collective decisionmaking at the appellate level by the entire unified commission as has obtained since 1973, when the wcab began to sit in panels of five, and 1980, when it began to sit in panels of three.

Surely it is not a constitutional difference — only a difference in form, not substance — that two separate bodies, the Board of Magistrates and the appellate commission, were created rather than a single unified commission, as the Liquor Control Commission, composed of two divisions — a hearing and an appellate division.⁸³

E

Also stated by the Civil Service Commission to be exempt at its March 6, 1941 meeting was the Unemployment Compensation Commission and the Unemployment Compensation Appeal Board created by a 1936 act that was amended in 1937.⁸⁴

The 1936 act provided for an Unemployment Compensation Commission composed of four members appointed by the Governor and a separate appeal board composed of three persons to be appointed by the commission. In 1937, the power to appoint the members of the appeal board was vested in the Governor. In 1977, the adjudicative function of the appeal board was transferred to a new appellate tribunal, named the Employment Security Commission Board of Review, composed of five persons appointed by the Governor.⁸⁵

It appears that the only function of the employment security appeal board/board of review was and is adjudicative. Thus, before the 1940 civil service amendment was added to the constitution, a board had been created by the Legislature that had no administrative and only adjudicative functions, and that board had been recognized by the Civil Service Commission as exempt in 1941.

F

The dissenting opinion would require as a precondition to exception from civil service that a statute creating a board or commission require that the members of the board or commission "perform some of their primary decisionmaking functions collectively either as an entire board or commission or through panels of the bodies.”⁸⁶ It thus appears that we all agree that a board or commission need not act as a collective entity in every or indeed any matter. Our disagreement is thus limited to whether some collective decision-making is required by a panel of say two or three members of a fifteen- or thirty-member board or commission.

Once it is decided that a board or commission need not act as an entity through the vote of a quorum of the whole board or commission, there is no reason in precedent or logic for seeking to retain the form of collective action by insisting that a board or commission act at least in panels of two or more. The notion that collective decision-making is required flows from the concept that a board or commission must act as a collective body. There is no basis for drawing the line at two members rather than one once it is recognized that the exception, in Const 1963, art 11, § 5, for members of boards or commissions does not require collective action by the entire entity acting as an entity. Establishing a collective decisionmaking criterion and announcing that it is satisfied when two members of a fifteen-member board agree would be incongruous.

G

In sum, the Board of Magistrates is composed of more than one person; it is composed of thirty magistrates.

A number of gubernatorially appointed boards and commissions — (i) the Industrial Accident Board, subsequently named the Workers’ Compensation Commission, now the Workers’ Compensation Appeal Board; (ii) the Board of Hearing Examiners, and subsequently the Liquor Control Commission; (iii) the Racing Commission; and (iv) the Corporation and Securities Commission — and countless corporate boards, have acted either on the decision of one person or on the decision of less than a majority of a quorum of the whole board or commission.

Three boards or commissions, the Industrial Accident Board, subsequently the Workers’ Compensation Commission, the Racing Commission, and the Corporation and Securities Commission, acted — before the 1940 amendment to the constitution adding the civil service provision — on the decision of one person.

The sole function of two boards, the Unemploy-. ment Compensation Commission Appeal Board (created before 1940), now the Employment Security Commission Board of Review, and the Workers’ Compensation Appeal Board, was adjudicating claims of workers seeking compensation.

The wcab no longer carries out its function of adjudicating particular claims as a collective body or entity, and would continue to act in panels without regard to whether § 213 of Act 103 were to be declared unconstitutional.

VI

In Case v Liquor Control Comm, supra, this Court considered a challenge to the constitutionality of 1945 PA 133 which created a Board of Hearing Examiners for the Liquor Control Commission. There were three members of the board who were appointed for six-year terms by the Governor, with the advice and consent of the Senate. Members were removable by the Governor for misfeasance, malfeasance, and nonfeasance.

The act required the Liquor Control Commission to file a complaint with the board whenever a license was to be either suspended or revoked, and required the board to conduct a hearing limited to the facts and law and rules and regulations of the commission. The findings of the board, to be based on the facts adduced at the hearing and the law and the rules and regulations of the commission, were required to be reported to the commission for decision. It was provided: "Such board of hearing examiners or any member thereof shall conduct hearings on questions referred to the board by the commission, under such rules and regulations as the commission may establish.” (Emphasis supplied.)⁸⁷

This Court said "[i]f there is any invalidity in [the 1945 act], it must appear so clearly as to leave no room for any reasonable doubt that it violates the Constitution, for every reasonable presumption and intendment must be resolved in favor of the constitutionality of the act. Cady v City of Detroit, 289 Mich 499 [286 NW 805 (1939)]; In re Brewster Street Housing Site, 291 Mich 313 [289 NW 493 (1939)].”⁸⁸

The Court first rejected the claim that the creation of the Board of Hearing Examiners infringed on the prerogatives of the Liquor Control Commission under the constitution. Because the Board of Hearing Examiners merely made recommendations which the commission had the right to accept or refuse, the Court saw no infringement on the commission’s prerogatives.⁸⁹

The Court then rejected the Attorney General’s challenge to the 1945 act based on the 1940 civil service amendment to the 1908 Constitution.⁹⁰ The Attorney General had argued that ”the legislature may not add [to the constitutional language] by the use of tags or labels; calling the examiners created in [the 1945 act], a 'board’ does not take them out of civil service,” and had further argued that the board of examiners was "ancillary to the Liquor Control Commission” and not an independent "agency or unit of government subordinate to the governor” but rather part of and under the "direction and control” of the Liquor Control Commission.⁹¹

The opinion, after noting that the members of the board were appointed by the Governor, their salary, term of office, and the limited grounds for removal, concluded that members of the board were excepted from civil service because they were members of a board or commission. The Court said that the Legislature had

created a board of importance and in language that showed that the appointment of mere employees was not contemplated, but an additional auxiliary body to assist the commission. The mere labeling of a body of employees as a board would be insufficient, but that was not the legislative intent as seen by the wording of the act. It was to be a real board of hearing referees which was to be independent of the commission, but its findings would not bind the commission. We believe that the creation of a body of such importance and dignity, and characterized by the legislature as a board, as a matter of fact created a board which is expressly excepted by the civil service amendment. Cases to the contrary cited by the attorney general bear some analogy but refer to employees and not to a board of this character. We find that the board was properly authorized, and that they have the constitutional power to act as an auxiliary, a fact-finding body; that hearings must be had before the board when created, but the final decision rests with the commission. If the commission acts capriciously, fraudulently or illegally, certiorari is the remedy as provided by the act. [Case v Liquor Control Comm, supra, pp 641-642. Emphasis supplied.]

The dissenting opinion in the instant case states that, while the statute construed in Case authorized the board or any member thereof to conduct hearings on questions referred to the board by the commission, "in instantes where the commission filed a complaint against a licensee, the statute provided that the board should hold a hearing. Individual members of the board were not authorized to hold such hearings. Hence, the Board of Hearing Examiners was required by statute to conduct hearings on complaints filed by the Liquor Control Commission as a collective entity.”⁹² (Emphasis in original.)

The purpose of the Board of Hearing Examiners, as stated in Case, was to address the "evil in having the liquor commission make the complaint and then take testimony and make the final decision. The Legislature wanted a board of hearing examiners to first take the testimony and make findings for the benefit of the commission” which would then make the decision.⁹³ The 1945 act was a limitation on the authority of the Liquor Control Commission. The act clearly stated that the "board of hearing examiners or any member thereof shall conduct hearings on questions referred to the board by the commission . . . .” (Emphasis supplied.)⁹⁴ The only kinds of questions that the commission was required to submit to the board for hearing were those involved in a complaint seeking suspension or revocation of a license. There is no evidence that any other kind of question was ever submitted by the commission to the board for hearing.

The practical construction of the act by the commission and the board, embodied in administrative regulations,⁹⁵ was that any member of the board could conduct a hearing on a complaint against a licensee seeking suspension or revocation of a license. In Napuche v Liquor Control Comm, 336 Mich 398, 401; 58 NW2d 118 (1953), this Court said that Napuche’s license was suspended following a "hearing held before a hearing examiner on September 6, 1950, pursuant to the provisions of section 5a [creating the Board of Hearing Examiners] of the Michigan liquor control act, as added by PA 1945, No 133 . . . ”⁹⁶ (Emphasis supplied.) The record in Napuche substantiates that a hearing was conducted by one member of the Board of Hearing Examiners on the commission’s complaint against Napuche, and that the member who conducted the hearing forwarded his findings to the commission without any consideration by any other member of the board or any action of or in behalf of the board other than the decision of the member of the board who conducted the hearing.⁹⁷

The view that the 1945 act creating the Board of Hearing Examiners required all three hearing examiners to hear a routine complaint seeking the suspension or revocation of a liquor license is contrary to the purpose and clear language of the act, the practical construction by the commission and the board reflected in a reported decision of this Court and in the administrative regulations, and is inconsistent with the way hearings of this kind are generally conducted in this country.⁹⁸

VII

The 1957 amendment, making Liquor Control Commission hearing officers members of the Liquor Control Commission, came only two years after the 1955 amendment designating the deputy members of the workers’ compensation commission as workers’ compensation referees.⁹⁹

The difference in legislative approach in enacting the 1955 workers’ compensation and 1957 liquor control amendments indicates that the Legislature chose to retain some hearing officers in the civil service system and to remove others from the system by organizing them in a board or commission subject to gubernatorial appointment for fixed terms.

The referees question the precedential value of this Court’s decision in Case, holding that Liquor Control Commission hearing officers may be removed from the civil service system, pointing out that their collective-decisionmaking argument was not advanced in Case and therefore was not considered. The rule is indeed well-established that a point not briefed and considered is not decided.¹⁰⁰ Case nevertheless — because it is the only decision addressing the meaning of the words "boards and commissions” — has been the focal point of arguments of counsel in this appeal.

This Court in Case obviously was concerned with whether the Board of Hearing Examiners there challenged was a "proper” or, to use the Court’s term, "a real board of hearing referees.” It saw the problem of labeling "a body of employees as a board.” While the collective-decisionmaking argument was not there briefed, considered, or decided, the justices surely knew and understood that the hearing examiner members of that board would act alone.

Be that as it may, what this Court did in Case is as important as what it said. What it did was to sustain the 1945 legislative decision to remove, by organizing them in a board, liquor control hearing examiners from the operative effect of the 1940 amendment to the constitution concerning the state civil service system.

In 1961, the Constitutional Convention met. The delegates were presumably aware of this Court’s decision in Case which in effect held that a hearing officer need not be included in the civil service system.¹⁰¹ Nevertheless, the words "boards and commissions” were not modified in the 1963 Constitution to preclude the inclusion of a hearing officer — who acts individually and not collectively —as a member of a board or commission.

VIII

If collective decisionmaking were the determinative criterion, the Legislature could readily create a board of hearing officers whose individual decisions would become "collective” when approved by another hearing officer, with a third to be assigned to the panel if they could not agree.¹⁰² Similarly there could be "collective” action by "boards” of parole or probation officers or social workers. Clearly something more or other than collective decisionmaking is required to constitute a real or true board or commission.

Case spoke of "importance,” "dignity,” and "independence” to distinguish a "real board” from a "body of employees” merely labeled as a board.

Act 103 provides that the Board of Magistrates is created as an "independent body” and an "autonomous entity.”¹⁰³ The members of the board are appointed by the Governor, like the members of most other boards or commissions. Their term of office is four years. That is the maximum term of office authorized under the constitution for a member of a board or commission.¹⁰⁴

This Court sustained in Case the validity of the Board of Hearing Examiners because it perceived the role or function of the members of that board to be important and their status — appointment by the Governor, four-year term of office, and salary —to be dignified. The members of the Board of Magistrates established under Act 103 have a role or function of greater importance, and similarly are appointed by the Governor, will be comparatively well-paid, and have stature.

The magistrates, like the hearing examiners in Case, are not subject to removal except for cause.¹⁰⁵ In the discharge of their hearing function, the magistrates have as much or more independence, autonomy, and importance as the members of most other boards or commissions.

A

The Civil Service Commission and the referees argue that the magistrates will be performing the same duties — hearing particular cases — as have been performed by the referees. They reason that the position they now hold must therefore remain in the civil service system. Equally true, however, is that the magistrates will be performing the same function — deciding particular cases with a large measure of finality — as has been performed by the members of the wcab, who are excepted from the civil service system._

This argument by the Civil Service Commission and the referees proceeds on the assumption that because the referees were granted civil service status, the position of workers’ compensation hearing officer could not have been organized by the Legislature in a board of referees or hearing examiners. They also seem to be arguing that the referees have a vested right in the decisions that permitted referees to acquire civil service status that precludes the Legislature from creating a board or commission of hearing examiners for workers’ compensation cases as it has done for Liquor Control Commission cases.

With the exception of the hearing commissioners of the Liquor Control Commission, who replaced the members of the Board of Hearing Examiners considered in Case, it has indeed been the practice in this state to provide hearing officers with civil service status. It is unclear to what extent that is a result of inertia or a thought-through decision for policy reasons.

It has been approximately fifty years since the growth of administrative law began to accelerate in the days of the New Deal. The proliferation of boards and agencies at the federal level was later paralleled at the state level. There followed a federal administrative procedures act¹⁰⁶ and subsequently state administrative procedures acts¹⁰⁷ with a requirement of a hearing in contested cases. The procedural guarantees provided by the federal and state constitutions¹⁰⁸ and these administrative procedures acts created a need for hearing officers at the administrative level in ever-increasing numbers._

At the beginning of this process, the hearing officer was often an aide to the person or persons charged with making the decision. The aide relieved the person or persons charged with making the decision of the need to hear the evidence. After hearing the evidence, the aide prepared a report with proposed findings of fact and sometimes conclusions or proposed conclusions of law that would then be forwarded to the decision-maker with or without a recommendation. Such persons were influential in the decisional process, but nominally at least did not make the decision.¹⁰⁹

Hearing officers whose decisions are mere recommendations that are reviewable de novo might understandably be regarded as persons performing a function similar to that performed by other civil servants and hence as persons that should be included in civil service and thereby removed from the political process.

The decision of a workers’ compensation magistrate will, however, stand as the decision of government, and will not be reviewable de novo. In this connection it is noteworthy that Case did not require that the decision be of that importance— the hearing examiner members of the Board of Examiners filed only findings without a recommendation — to justify placing employees of government performing that role in a separate board or commission and hence removed from the protection of civil service.

B

Since 1940, the Legislature has created at least nineteen commissions or boards to address particular concerns.¹¹⁰ It would be surprising if some department of state government had not theretofore addressed some of those concerns, and some state employee with civil service status was not charged with or had not exercised the responsibility of acting for the state in addressing those concerns or some of them. Surely, the constitutionality of legislation creating a commission or board could not be challenged by a civil servant on the basis that the new agency will politicize the governmental effort to address the concern or will eliminate or reduce the civil servant’s role in addressing that concern.

The issuance and revocation of some state licenses is the primary function of independent boards or commissions,¹¹¹ while other state licenses are issued by a bureau or division of a principal department of state government.¹¹² Where licensing is one of a number of functions of a department, or there are a considerable number of licenses issued by the department, there may be less supervision by the department head of the employees involved in the licensing process than of employees who serve on a board or commission that has no other business. The resultant increase in the power of civil servants who operate relatively free of supervision may lead to legislation creating a board or commission to increase political accountability. Surely a civil servant who formerly exercised considerable power could not be heard to say that the legislation creating the board or commission is unconstitutional either because this might politicize the licensing process or because he might, after years of faithful service and effort, be required to alter his role in government.

C

The civil service system relates to the executive branch of state government. The exceptions for employees of courts of record and employees of the Legislature are exceptions to take out of the civil service system and the control of the Governor, who appoints the members of the Civil Service Commission, employees of the other two separate branches of government, the judiciary and the Legislature. Similarly, to preserve the independence of state institutions of higher education from gubernatorial control, their employees are excepted. Persons in the armed forces of the state are excepted because they are not part of the civil service.¹¹³

Turning to the exceptions and exemptions in the executive branch, they appear to be generally characterized by policy-making. Positions filled by popular election, the heads (principal executive officers) of the not more than twenty departments are policy-making positions and by definition all the exempt positions in the principal departments are policy-making except for not more than one position in each department that is not required to be but may be policy-making.¹¹⁴

We all agree that however one characterizes the function of an administrative hearing officer or appellate tribunal member, it is clear that a real or true board or commission may be created to perform no function other than to adjudicate particular cases.

The Unemployment Compensation Commission Appeal Board was extant as a gubernatorially appointed board in 1937, three years before the civil service amendment was added to the constitution in 1940. The Civil Service Commission recognized in 1941 that the members of that appeal board were not covered by the civil service system. The employment security appeal board/board of review has and has had no function other than to adjudicate particular cases.¹¹⁵_

Similarly, the wcab has and has had no function other than to adjudicate particular cases. It is thus clear that persons who have no function other than to adjudicate particular cases may be members of a board or commission that is excepted from the civil service system.

D

A board or commission is generally placed in charge of some business of the government. Whether a board or commission is "important” depends on the nature of the business, and the authority and power entrusted to it. The "dignity” of a board or commission relates to status or stature, as well as the importance of its business, authority, and power.

Members of boards and commissions are generally appointed by the Governor and sometimes by the Legislature. The members are accountable only to the appointing authority. They do not have a supervisor who can tell them how and what to do or decide. They are not part of a bureaucratic hierarchy, and hence are "independent.”

A chairperson of a board or commission is not the superior of the other members. He can no more tell the other members how to vote or decide than the chief judge of a court could tell a Court of Appeals, circuit, district or probate judge how to decide. In the exercise of the decisional function, a member is not accountable to the chairperson.¹¹⁶

The members of the Board of Magistrates are appointed by, and are accountable only to, the Governor. They are not part of a bureaucratic hierarchy. In the exercise of the decisional function, they do not have a supervisor who can tell them how and what to decide. They are therefore "independent.” The Board of Magistrates is created separate and apart from the appellate commission and the Bureau of Workers’ Compensation, and accordingly is a separate autonomous entity within the Department of Labor.

The business of the Board of Magistrates and of the appellate commission is adjudicating controversies that arise under the workers’ compensation law. Both the magistrates and the members of the appellate commission have the authority and power to decide those controversies — the magistrates at the hearing level and the members of the appellate commission on appeal. That business, authority, and power is of sufficient importance to justify the establishment of an independent board and commission for the purpose of discharging the governing function involved in resolving those controversies.

E

It is argued that Act 103 will politicize workers’ compensation because the magistrates will serve for fixed terms and reappointment is dependent on gubernatorial favor.

The members of the wcab have always served for fixed terms, with reappointment at the pleasure of the Governor. The decisions of referees were reviewable de novo by members of wcab panels who serve only for a fixed term. Act 103 does not further politicize the workers’ compensation system.

The constitution does not preclude the Legislature from requiring political accountability of persons who make quasi-judicial decisions involving factfinding and law finding.¹¹⁷

The character of the decisions to be made by the magistrates are essentially the same as the quasi-judicial decisions made by the Employment Relations Commission, the Employment Security Commission Board of Review, the Liquor Control Commission, and numerous licensing boards. The members of all those agencies are gubernatorial appointees who serve for fixed terms and do not have civil service tenure.

A decision to revoke a liquor license or a physician’s, veterinarian’s, nurse’s or other professional person’s license, to grant or deny relief from an unfair labor practice, to award or deny unemployment compensation benefits, are decisions no less important than whether to award or deny workers’ compensation benefits. Those decisions are made, by members of boards and commissions whose appointment and tenure are subject to the political process.

F

The reports of some hearing officers state only findings or recommendations. Workers’ compensation referees’ decisions are, however, of greater importance because they are decisions, not solely findings. Absent an appeal to the wcab, a judgment can be obtained from the circuit court enforcing a referee’s decision.¹¹⁸ Since 1975, when a referee’s decision is appealed to the wcab, seventy percent of any benefits awarded by the referee is required to be paid during the pendency of the appeal.¹¹⁹ Those are decisions of importance.

Workers’ compensation hearing officers’ decisions will henceforth have even greater importance. A magistrate’s decision will no longer be reviewable de novo, and will be reviewable only for errors of law and a determination whether it is supported by substantial evidence on the whole record. A magistrate’s decision on a claim seeking $2,000 or less is reviewable only for fraud or error of law in the discretion of the Court of Appeals or this Court.¹²⁰

The legislative decision to constitute persons whose decisions have that importance as members of a board or commission who serve by gubernatorial appointment for fixed terms for the purpose of removing them from civil service and subjecting their appointment and retention to the political process is entirely consistent with constitutional principles that contemplate that persons exercising certain kinds of power shall or may be made politically accountable. That legislative decision making workers’ compensation hearing officers more accountable in the political process was made in conjunction with the legislative decision to make their decisions more final and hence more important.

There is nothing pretextual about the increase in the power of workers’ compensation hearing officers. There is a real increase in their power and in the importance of their decisions. The Legislature did not merely transfer the duties of the referees to the magistrates._

G

Hearing officers who have the power to make decisions that become final unless appealed and whose findings are required to be considered conclusive on an appeal if supported by substantial evidence will have a function in state government similar in importance to that of the adjudicative appellate tribunals, the wcab, and the employment security board of review. They will be deciding particular cases and controversies with a high degree of finality.

A primary purpose of Act 103 is to make the decisions of the magistrates final in most cases. While an appeal can be filed, it is intended that relatively few appeals will be successful. The number of members of the workers’ compensation appellate tribunal has been reduced because the appellate role has been reduced from factfinder to a limited review for error. The decision of the magistrates will in most cases constitute the final decision. In making their decisions, the magistrates will be performing a function similar to that performed by the wcab when the members of that board were thought to be performing a function of sufficient importance and dignity to be removed from the civil service system.

A magistrate, in hearing a workers’ compensation claim, will have the same role as a judge when the judge acts as trier of fact in an action brought to enforce a right created by statute. A magistrate, like a judge, will find the facts with a large measure of finality and apply the law to the facts, and in so doing will often find it necessary to construe the workers’ compensation act. In so construing the act, the magistrate may not have the guidance of reported appellate decisions. The function of a magistrate and of a judge and their authority and power in hearing a statutory claim are essentially indistinguishable. The findings of fact of a circuit judge are subject to reversal if clearly erroneous (when the Court of Appeals or this Court is left with the definite and firm conviction that a mistake was made),¹²¹ while a magistrate’s findings of fact can be reversed on appeal only if there is not substantial evidence on the whole record to support the decision.

A magistrate’s decision is reviewable by the newly constituted appellate commission under precisely the same standard that applies to judicial review of decisions of administrative tribunals generally.¹²² His decision has the same dignity and importance in that regard as the decision of the Employment Security Commission Board of Review or the Employment Relations Commission, which are subject to further review (by the circuit court for the Employment Security Commission Board of Review,¹²³ and by the Court of Appeals for the Employment Relations Commission)¹²⁴ under a substantial-evidence standard.

A magistrate’s decision vis-á-vis the appellate commission has thus the same stature as the decisions of the Employment Security Commission Board of Review or Employment Relations Commission. The potential for review or reversal by the appellate commission of a magistrate’s decision does not make the decision insufficiently important when the review is under the same limited standard that is applicable to review by a circuit judge of a decision of the Employment Security Commission Board of Review or by the Court of Appeals of the Employment Relations Commission.

H

It is argued that Act 103 destroys rights of the referees in continued employment.

Although the Legislature may not have been required to establish the position of workers’ compensation referee in the civil service system, it did so and may thereby have created legitimate expectations of continued employment. Whatever promise of continued employment may have been made to the referees when they were given civil service status can, however, be fulfilled without a decision by this Court that the Legislature could not enlarge the duties and function of workers’ compensation hearing officers and require that they be selected by a different process, their tenure be limited, and they be more accountable in the political process.

The referees have civil service status. Act 103 does not deprive them of that status. A year remains before the referee positions are abolished effective March 31, 1987. There are a number of civil service employment opportunities in state government for former referees. They are all lawyers. Some may become employed in other departments of state government either as lawyers or in some other capacity. There are a large number of civil service hearing examiner/officer/referee/Au positions in state government. The Civil Service Commission is charged with the responsibility of administering the civil service system.

Some of the referees may be selected by the qualifications advisory committee for recommendation to the Governor for appointment as members of the Board of Magistrates or as members of the appellate commission, and some so recommended may be appointed by the Governor.

Act 103 contemplates that until July 1, 1989, the Governor may appoint, with the advice and consent of the Senate, senior hearing referees and former hearing referees to the wcab to fill a vacancy or to temporarily increase the number of members on the appeal board to expedite decisions in the large backlog of cases before the board.¹²⁵

IX

The Civil Service Commission, the referees, and amici curiae make additional arguments.

A

It is argued at some length that the elimination of the position of hearing referee was motivated by racial and sexual bias.

The record in respect of these claims has not been developed.

The referees are not precluded by today’s decision of this Court sustaining the facial constitutionality of Act 103 from seeking to establish that Act 103 discriminates racially or sexually in violation of the constitution of this state or of the United States.

B

It is claimed that the Civil Service Commission, not the Legislature, has plenary power to regulate the terms and conditions of the referees’ employment.

We agree with the circuit judge that the power of the Civil Service Commission to "regulate all conditions of employment in the classified service”¹²⁶ does not preclude the Legislature from eliminating a position once it is classified as within the civil service system.

The provisions authorizing the Civil Service Commission to "classify all positions” and empowering the appointing authorities to "create or abolish positions for reasons of administrative efficiency”¹²⁷ do not in terms bar the Legislature from creating new positions or eliminating old positions and changing the respective duties and responsibilities by law.

As indicated earlier, there is authority that the Legislature is limited by a judge-made rule requiring that it act in good faith, and not merely transfer a civil service position to non-civil service status.¹²⁸ It is again relevant that the Legislature did not merely transfer the duties of the hearing referees to the members of the Board of Magistrates. It vested the magistrates with the power, presently vested in the members of the wcab, to determine the facts with substantial finality and the power to determine the facts with full finality in cases involving less than $2,000.

The question whether a position within the civil service system should be abolished for administrative efficiency is a different question than whether a position can properly be created outside of the civil service system. The language concerning abolition of a position for administrative efficiency speaks of the elimination of redundant positions in the classified service. The power to do so is vested in department heads who may see a job that no longer needs to be done. This provision does not limit the authority of the Legislature to provide that a function formerly performed by civil service employees henceforth shall be performed by a board or commission outside the civil service system. The Legislature is not powerless to eliminate a position in government once it is established.

The critical question in the instant case is not whether the Legislature can abolish or eliminate a position, but whether it can transfer duties and power exercised by a person holding a position covered by civil service to a board or commission. It if can do so, then the position is in effect eliminated, whether or not formally abolished, because then no further duty or power is attached to the position, the duties and power of which have been so transferred.

For reasons previously stated, the Legislature validly transferred the duties and power of the office of referee to a Board of Magistrates in connection with a substantial increase in the power and importance of the workers’ compensation hearing officer function.

C

We hold that §206, abolishing the position of hearing referee, and §213, creating a board of magistrates, of Act 103 do not violate Const 1963, art 11, § 5. The judgment of the circuit court is reversed, and we remand to the circuit court for further consideration of plaintiffs’ other claims. The injunction entered December 2, 1985, is dissolved.

Pursuant to MCR 7.317(C)(3), the clerk is directed to issue the judgment order immediately.

Williams, C.J., and Cavanagh and Boyle, JJ., concurred with Levin, J.

1 "The classified state civil service shall consist of all positions in the state service except those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and within each principal department, when requested by the department head, two other exempt positions, one of which shall be policy-making. The civil service commission may exempt three additional positions of a policy-making nature within each principal department.” Const 1963, art 11, § 5.

2 MCL 418.213; MSA 17.237(213).

3 See ns 25 and 26.

4 See n 33 ff.

5 Report of Professor Theodore J. St. Antoine, Workers’ compensation in Michigan: Cost, beneñts and fairness, December 12,1984, p 67.

6 MCL 418.213; MSA 17.237(213).

7 MCL 418.251; MSA 17.237(251), MCL 418.274; MSA 17.237(274).

8 MCL 418.274; MSA 17.237(274).

9 "The committee shall consist of persons who have experience in the area of worker’s compensation.” MCL 418.209; MSA 17.237(209).

"The qualifications advisory committee shall develop a written examination. The examination shall be administered to applicants for the position of worker’s compensation magistrate in order to determine the applicant’s ability and knowledge with regard to worker’s compensation in the following areas:

"(a) Knowledge of this act.

"(b) Skills with regard to fact finding.

"(c) The Michigan rules of evidence.

"(d) A basic understanding of human anatomy and physiology.” MCL 418.210(1); MSA 17.237(210X1).

"(1) The qualifications advisory committee shall evaluate the performance of each worker’s compensation magistrate at least once every 2 years. The evaluation shall be based upon at least the following criteria:

"(a) The rate of affirmance by the appeal board and the appellate commission of the worker’s compensation magistrate’s opinions and orders.

"(b) Productivity including reasonable time deadlines for disposing of cases.

"(c) Manner in conducting hearings.

"(d) Knowledge of rules of evidence as demonstrated by transcripts of the hearings conducted by the worker’s compensation magistrate.

"(e) Knowledge of the law.

"(f) Evidence of any demonstrable bias against particular defendants, claimants, or attorneys.

“(g) Written surveys or comments of all interested parties.

"Information obtained under this subdivision shall be exempt from disclosure under the freedom of information act, Act No. 442 of the Public Acts of 1976, being sections 15.231 to 15.246 of the Michigan Compiled Laws.

"(2) Upon completing an evaluation under this section, the qualifications advisory committee shall submit a written report including any supporting documentation to the governor regarding that evaluation which may include recommendations with regard to 1 or more of the following:

“(a) Promotion.

"(b) Suspension.

"(c) Removal.

"(d) Additional training or education.

"(3) The governor shall respond in writing to the committee regarding the action taken in response to the report of the committee.” MCL 418.212; MSA 17.237(212).

10 MCL 418.213; MSA 17.237(213), MCL 418.274; MSA 17.237(274), MCL 418.251; MSA 17.237(251).

11 MCL 418.211; MSA 17.237(211).

12 MCL 418.213; MSA 17.237(213), MCL 418.274; MSA 17.237(274).

13 Id.

14 A member of the board or commission "may be removed by the governor for good cause which shall be explained in writing to the” member. "Good cause for removal shall include, but not be limited to, lack of productivity or other neglect of duties.” MCL 418.213; MSA 17.237(213), MCL 418.274; MSA 17.237(274).

15 Id.

16 MCL 418.205; MSA 17.237(205).

17 MCL 418.213; MSA 17.237(213), MCL 418.274; MSA 17.237(274).

18 MCL 418.847; MSA 17.237(847).

19 MCL 418.851; MSA 17.237(851).

20 MCL 418.862; MSA 17.237(862), added by 1975 PA 34.

21 MCL 418.274; MSA 17.237(274).

22 Id.

23 MCL 418.261; MSA 17.237(261).

24 MCL 418.859; MSA 17.237(859).

25 MCL 418.861a; MSA 17.237(861a).

26 MCL 418.861a(14); MSA 17.237(861a)(14). Former MCL 418.861; MSA 17.237(861).

27 The constitution provides that "[findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.” Const 1963, art 6, § 28.

The statute provides that the "findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive.” MCL 418.861a(14); MSA 17.237(861a)(14).

28 MCL 418.206; MSA 17.237(206).

29 MCL 418.266; MSA 17.237(266).

30 MCL 418.251; MSA 17.237(251).

31 1985 PA 103, § 4.

The non-severable provisions pertain to:

—a requirement that the claimant prove entitlement by a preponderance of the evidence and that in the absence of a claim for review, the order of a magistrate is the order of the bureau (§ 851)

—medical benefits pending an appeal (§ 862[2])

—the limitation of attorneys fees (§ 858)

—hearing and mediation application and procedures (§ 222)

—employee exclusions from the act (§§ 119, 151[l][b], and 161[l][d] and [4])

—payment of compensation in weekly installments and penalty for nonpayment (§ 801)

—redemption of personal injury liability by payment of lump sum pursuant to approved agreement (§ 835[1])

—the liability of employer to sub-employee if contractor engages persons who would not be considered employees under 161(l)(d) and the liability of a principal for wilfully encouraging a person of employee status to pose as a contractor (§ 171[3] and [4])

—coordination of payments with contributions to qualified profit sharing plan under § 401(a) of IRC (§ 354[l][f])

—the effect on compensation payments of remarriage of wife or maturity of child (§ 335)

—payment of benefits for death or disability to a vocationally handicapped person (§§ 921, 925 and 935)

—an employer’s duty to furnish medical care, dental service, etc. (§ 315[1])

—the liability of a carrier or fund determined by a hearing referee or magistrate, and reimbursement (§ 852)

—an employer’s failure to comply with the act, and misdemeanor, penalty and employee’s entitlement to damages (§ 641)

—the examination of an employee by a physician at the request of the employer, report to attorney, refusal of employee to submit to an exam, and testimony of physician (§ 385)

—the repeal of extension of time to claim review by appeal board (§ 851a[2])

—the provision that payment of nursing care shall not be made for periods more than one year prior to appeal for hearing (§ 381[3])

—the abolition of the hearing referee position (§ 206)

—the elimination of the appeal board (§§ 251[3], 255[3], 261[5], 265[4], and 266)

—the creation of the appellate commission and procedure for a claim for review (§§ 274 and 859a)

—the provision that beginning October 1, 1986, magistrate’s finding of fact shall be conclusive if supported by competent, material, and substantial evidence on the whole record (§ 861a[3])

—the repeal of the procedure for review by appeal board, and the requirement of written opinions and conclusions of law (§ 859[2])

—a right to appeal to the appellate commission where the matter has been pending before the appeal board for three or more years (§860)

32 Report of Professor Theodore J. St. Antoine, n 5 supra, pp 68-71.

33 Id., p 68.

34 Id.

35 Id, p 69.

36 Id.

37 Id., pp 69, 68.

38 Id., pp 71-72.

The report also recommended that the appealing party should be required to narrow the appeal board’s inquiry and specify the portions of the transcript relied on. Where the decision of the hearing officer is affirmed, the appellate tribunal ought to be able to act without preparing a formal opinion when it finds that it can adopt the hearing officer’s findings. Id., p 72.

39 Id., p 75.

40 Const 1963, art 11, § 5, ¶ 4.

41 Statement of Assistant Attorney General George Weller during oral argument in this Court.

42 St. Antoine, n 5 supra, p 75.

43 The report noted that the referees are informally and almost universally known as administrative law judges. Id., p 67.

44 Id., p 75.

45 SB 7, § 274.

46 SB 7, § 852.

47 SB 7, § 274(7).

48 SB 7, § 273(c).

One member would be appointed by each of the majority and minority members of each house of the Legislature, and three by the Governor.

49 Substitute for SB 7 (S-4), §§ 274, 275.

Appeals were to be heard by an appeal panel which could not include the commissioner who had heard the evidence.

50 Senate Analysis Section, Analysis of SB 7 as reported out of committee (S-4), p 5 (May 22,1985).

51 House Substitute for SB 7 (H-4), §§ 213, 274.

52 See n 33 and accompanying text.

53 See ns 45-48 and accompanying text.

54 The Civil Service Commission and the referees additionally contend that legislative bad faith is inferable from the transfer of functions heretofore performed within the classified civil service to magistrates politically appointed outside of the classified service:

"As a general rule, where positions axe purported to be eliminated and incumbents laid off, and thereafter identical or similar positions are re-established and the positions filled by others not entitled under the civil service law and rules to such employments, the courts will not hesitate to order re-employment of the laid off employees.” Kaplan, Civil Service, p 215.

It is argued that this principle has been recognized in Michigan. The referees cite Smith v Flint City Comm, 258 Mich 698, 701; 242 NW 814 (1932); Owen v Detroit, 259 Mich 176, 177; 242 NW 878 (1932). They further argue that courts look through the argument that it is a "position” that is being abolished rather than the employee who is being discharged, for abolition of the job entails displacement of those who have been qualified for it, learned its requirements, gained specialized experience in performing it, and would be forced to alter their working lives and careers.

55 The referees cite 1 Oxford English Dictionary 239; 2 Oxford English Dictionary 681 (Compact ed 1971).

56 The referees cite State ex rel Johnson v Independent School Dist No 810, 260 Minn 237, 243-245; 109 NW2d 596 (1961).

They also cite People v Maynard, 15 Mich 463, 468, 472, 473 (1867). In Maynard, this Court said that the powers of a board of supervisors may not be exercised by "single persons.” The Court also said: "Among the necessary incidents to a county are subdivisions in which the electors can lawfully vote, and townships whose supervisors conjointly may exercise the legislative and administrative powers of the corporation.” Justice Cooley, concurring, added that "the term ’board,’ in its derivation as well as in its ordinary use, indicates a deliberative body, composed of more than one person.”

57 Federal administrative law judges are included in a civil service system. 5 USC 3105.

It appears that workers’ compensation administrative law judges are civil service employees in twelve states and are not in seventeen states. These statistics were provided by the chief administrative law judge for Minnesota, who is conducting a survey under the auspices of the Executive Committee of the National Conference of aljs and the Commission on Standards of Judicial Administration. Both are part of the Judicial Administration Division of the American Bar Association.

58 MCL 418.206(3); MSA 17.237(206X3), MCL 418.356; MSA 17.237(356), MCL 418.375; MSA 17.237(375), MCL 418.835; MSA 17.237(835), MCL 418.841; MSA 17.237(841), MCL 418.847; MSA 17.237(847), MCL 418.851; MSA 17.237(851), MCL 418.861a; MSA 17.237(861a), MCL 418.863; MSA 17.237(863).

59 See text following n 91 for quotation from this Court’s opinion in Case v Liquor Control Comm, 314 Mich 632; 23 NW2d 109 (1946), where the phrase "importance and dignity” appears.

60 The commission was created pursuant to 1933 PA 199, 1948 CL 431.1 et seq.; MSA 18.941 et seq. There was one Racing Commissioner and no other member of the commission. The act spoke in terms of a "commissioner” and a "commission” and provided that "[t]he term 'commissioner’ and 'commission’ as used in this act shall be construed to mean the Michigan Racing Commissioner.” 1948 CL 431.1; MSA 18.941. The 1933 act was replaced by 1959 PA 27, MCL 431.31; MSA 18.966(1).

61 The commission was created pursuant to 1935 PA 13, 1948 CL 451.1 et seq.; MSA 19.781 et seq., MCL 451.1; MSA 19.781.

62 The Corporation and Securities Commissioner was empowered to appoint not more than three deputy commissioners who were authorized "to conduct hearings in the several matters submitted to the commissioner for his determination, and to make report of such evidence as may be submitted to them, together with their conclusions and recommendations, to the commissioner for his action . . . .” MCL 451.2; MSA 19.782. It was further provided that the deputy commissioner "shall likewise have power and authority to perform such other duties as may be delegated to them by the commissioner.”

They carried out their hearing function as individuals and not as, or members of, a collective entity.

63 MCL 450.1505; MSA 21.200(505). This is not an unusual provision. See O’Neal, Close Corporations, § 3.13, n 1.

64 The dissenting opinion indicates that the Racing Commission and the Corporation and Securities Commission may have been excepted from civil service as heads of departments and not as members of commissions. Post, pp 652-653, n 25. That they may have been excepted as heads of departments does not preclude their also having been excepted as members of commissions.

The 1963 Constitution provides that a board or commission may head a principal department of state government (see n 1). That does not negate the exception from civil service of members of boards or commissions that head principal departments. It rather indicates that the members of such a board or commission are excepted because of their membership in the board or commission and not as the head of a principal department — it is the members who are excepted, not the board or commission. (The Civil Service Commission and the Civil Rights Commission head principal departments.)

65 See ns 84 and 85 and accompanying text.

66 MCL 418.255; MSA 17.237(255).

67 1980 PA 357, MCL 418.261; MSA 17.237(261).

The number of members of the wcab was increased from three (1955 PA 62) to five (1964 PA 266) to seven (1965 PA 139; 1969 PA 317). After the 1965 amendment, the members sat in panels of four. If four members concurred in the result, it was final; if there was disagreement, the matter was required to be reviewed by the full board.

In 1973, the number of members was increased to eleven who sat in panels of five. Further review by the entire board was obtainable only in the unusual case where a majority of the five could not agree; otherwise the decision of a majority was the final decision of the board (1973 PA 73).

In 1978, the number of members was increased to fifteen who sat in panels of three. If a majority of the three were unable to agree, the matter was required to be reviewed by the entire fifteen-person board.

In 1980, the provision for review by the entire board was eliminated. Act 103 provides for such review; see n 23 and accompanying text.

68 MCL 418.261; MSA 17.237(261).

69 MCL 418.261; MSA 17.237(261) (see n 68) is not tie barred (1985 PA 103, § 4) and thus survives without regard to whether this Court decides that § 213 of Act 103 is unconstitutional.

70 1955 PA 62, MCL 408.9; MSA 17.6(15).

71 1947 PA 357, MCL 408.1; MSA 17.6(7).

72 1912 (1st Ex Sess) PA 10.

73 1955 PA 62, MCL 408.7; MSA 17.6(13).

74 1912 (1st Ex Sess) PA 10.1915 CL 5460, 5461.

75 1919 PA 64,1929 CL 8459.

The workers’ compensation act had been theretofore amended to permit the board to appoint two deputy commissioners who held office "during its pleasure” who were authorized under the direction of the board to conduct a hearing or arbitration in the same manner and with like effect as if done by a member of the board. 1915 PA 171; 1915 CL 5472. This provision was amended by 1919 PA 64; 1929 CL 8459, to permit the commission to appoint "sufficient deputy members” to enable it "efficiently to administer the law.”

76 1919 PA 64,1929 CL 8447.

77 1921 PA 60, 1929 CL 8445, 8446, 8447.

In 1943, the references to the Industrial Accident Board and the committee of arbitration were eliminated. However, until 1955 (see n 75), the decision of an employee (a deputy member) would stand as the decision of the board or commission unless review was timely sought. 1943 PA 245,1948 CL 413.6, 413.7, 413.8; MSA 17.180, 17.181, 17.182.

78 See 1921 PA 43 and 1947 PA 357, 1948 CL 408.1; MSA 17.6(7), transferring the powers of the Industrial Accident Board to commissions.

79 1945 PA 133, creating the Liquor Control Commission Board of Hearing Examiners, was repealed by 1957 PA 264. The 1957 act carried forward the concept embodied in the 1945 act by enlarging the number of liquor control commissioners from three to five. All five members of the commission are appointed by the Governor with the advice and consent of the Senate. "Two . . . shall be designated by the chairman as hearing commissioners” to hear violation cases and to perform other functions and duties. The other three, shall "act as an appeal board to the decisions rendered by the hearing commissioners.” MCL 436.5; MSA 18.975.

As originally enacted in 1957, the statute did not describe the hearing officer commissioners as "hearing commissioners” or the other three commissioners as "administrative commissioners.” The 1957 act stated simply that the "commission shall consist of 5 members,” and that two of these members "shall hear cases and render decisions,” and the remaining three commissioners "shall act as an appeal board.”

The statute took its present form in 1976 PA 31, providing that two commissioners shall be designated by the chairman as hearing commissioners, and the remaining three shall be designated as administrative commissioners. The three who are not hearing commissioners "have the responsibility for administering the provisions of this act relating to licensing, purchasing, enforcement, merchandising, and distribution.” It is further provided: "The responsibilities of the 5-member commission shall be the administration of the provisions of this act which have not been specifically delegated to either the hearing commissioners or the administrative commissioners in this section.” It might be argued that this latter provision indicates that the Liquor Control Commission is responsible for performing at least some of its primary functions as a collective body. It does not appear, however, what function, if any, of the commission would not be included within either "licensing, purchasing, enforcement, merchandising, and distribution” or hearing "violation cases” and appeals therefrom. Absent any evidence that there is some function so performed as a collective body, there is no basis for concluding that a primary function of the commission is required to be performed or has been performed by the five members as a collective body.

In all events, the hearing function was and is performed individually by hearing commissioners who replaced the members of the Board of Hearing Examiners who also acted individually.

80 See n 79 and Part VI. The power of a liquor control hearing officer was expanded by the 1957 act; the members of the Board of Hearing Examiners were empowered under the 1945 act only to "report their findings to the commission for decision” — the hearing commissioners were empowered by the 1957 act not only to "hear cases” but also to "render decision.” MCL 436.5; MSA 18.975.

81 See n 79.

82 The asserted deficiency in Act 103, namely that there would not be collective decisionmaking by the "entire board or commission or through panels” (see text accompanying n 86), could, it would appear —consistent with the practice in hearing workers’ compensation claims (see text accompanying ns 70-78) over the forty-year period, which included 1940, when the amendment concerning the civil service system was added to the constitution with an exception for members of "boards and commissions,” (Const 1908, art 6, § 22; now Const 1963, art 11, § 5) — have been avoided or rectified by simply creating a single unified commission, as was done in the first full Senate revision of the bill that became Act 103 (see n 47 and accompanying text), of say thirty-seven members with two divisions, an appellate division (seven members) and a hearing division (thirty members). Then some of the primary functions of the unified commission would be discharged collectively through panels of the appellate commission.

83 The trial court of general jurisdiction and the intermediate appellate court in New York is organized as a unified court. There is one court composed of over 350 elected justices, most of whom are trial justices, some of whom serve by gubernatorial appointment on four appellate divisions of the court with a discretionary appeal to the Court of Appeals, New York’s highest court. NY Jud Law, § 70 et seq. (McKinney).

84 1936 (Ex Sess) PA 1, 1948 CL 421.3, 421.35; MSA 17.503, 17.537, 1937 PA 347,1948 CL 421.35; MSA 17.537.

The act was subsequently amended a number of times, but there was no substantive change until 1977 when there was created a board of review composed of five members, also to be appointed by the Governor, to replace the appeal board. 1977 PA 52; MCL 421.35; MSA 17.537.

85 Id.

86 Post, p 654.

87 "Sec. 5a. Same; board of hearing examiners. There is hereby created a board of hearing examiners to consist of 3 members to be appointed by the governor, by and with the advice and consent of the senate, for terms of 6 years each .... Members of the board may be removed by the governor for misfeasance, malfeasance and nonfeasance in office. . . . Such board of hearing examiners or any member thereof shall conduct hearings on questions referred to the board by the commission, under such rules and regulations as the commission may establish. The examiners shall report their findings to the commission for decision. Each member of the board is authorized to examine witnesses and administer oaths, ... In all instances when a license is to be either suspended or revoked the commission shall cause a complaint to be filed with said board whereupon said board shall conduct a hearing limited to the facts and law and rules and regulations of the liquor control commission as specified in said complaint.” 1945 PA 133; 1948 CL 436.5a.

88 Case, supra, p 638.

89 The board, said the Court in Case v Liquor Control Comm, supra, pp 639-640, did not have the power to suspend or revoke a license and was "merely a fact-finding board which makes its findings to the commission” which "retains complete power” to suspend and revoke the licenses and to "accept or refuse to accept the findings of the board.” There was no unconstitutional delegation of the commission’s power under the constitution (Const 1908, art 16, § 11, now Const 1963, art 4, § 40) to exercise complete control of the alcoholic beverage traffic to the Board of Hearing Examiners. The hearing before the board was merely ministerial, the board having but limited duties.

90 See Const 1908, art 6, § 22, which excepted "members of boards and commissions.”

91 See records and briefs, Case v Liquor Control Comm, supra, Attorney General’s supplemental brief.

92 Post, pp 646-647.

93 Case v Liquor Control Comm, supra, p 640.

94 1945 PA 133, 1948 CL 436.5a; MSA 18.975(1). See n 87 for text.

95 The regulations promulgated by the commission confirm that the hearing was and is conducted by a single hearing examiner or commissioner.

Currently, 1979 AC, R 436.1909, promulgated in 1977 AACS, R 436.1901, provides that "[a] hearing commissioner shall conduct the violation hearing on the complaint.” 1979 AC, R, 436.1917 provides that a "licensee aggrieved by an order of a hearing commissioner . . . may request a violation appeal hearing” and that an appeal shall be heard by the violation appeal board consisting of three administrative commissioners. Unless an appeal is taken and the appeal board, in its discretion, grants an appeal, the order of the hearing commissioner is not subject to further administrative review and is subject only to judicial review.

These rules superseded 1960 AACS, R 436.701. The 1960 rules stated that "the commissioner shall conduct the hearing” and spoke of the findings and decision of "the commissioner.” Again, it is clear that decisions were made individually and not collectively.

The 1960 rules superseded 1954 AC, R 436.461 et seq., which were promulgated under the authority of the 1945 act. See Michigan Administrative Code 1954. They were promulgated as 1947 ACS, No 11, p 25, and 1948 ACS, No 14, p 6, in 1947 and 1948. These rules stated that the complaint shall be filed with the Board of Hearing Examiners by the commission. It is stated that "[t]he board of hearing examiners or any member thereof shall conduct the hearing That the hearing before the board or any member thereof was of "a complaint against a licensee” appears in subparagraph K of R 436.461 which sets forth a "form of notice to licensees,” which form states that the "[cjommission has caused a complaint to be filed with the Board of Hearing Examiners alleging a violation of the laws of the state of Michigan and the regulations of the commission with respect to the operation of your establishment” and that "[fjailure to attend the hearing will result in immediate suspension of your license pending your appearance before said Board of Hearing Examiners, or the member thereof assigned thereto, in answer to the complaint.”

96 The opinion further stated: "Full opportunity was given to cross-examine and to make arguments to the examiner,” and "[following the hearing, the examiner dictated his findings which were then forwarded to the commission.” (Emphasis supplied.) Id., p 401.

97 The complaint was filed July 28, 1950, by the Liquor Control Commission. It was signed by the executive secretary of the commission. It was captioned: "State of Michigan, Board of Hearing Examiners, Liquor Control Commission.” It was dated July 28, 1950 and stated "Re: Christo P. Napuche, d/b/a Bronx Cafe,” the address and kind of license. Then, "Complaint” and then "To the Board of Hearing Examiners, Michigan Liquor Control Commission,” and then that the complaint concerned a sale to persons under the age of twenty-one years.

The transcript of the hearing on the complaint was captioned: "Board of Hearing Examiners, Michigan Liquor Control Commission” and was held on September 6, 1950, "Before: John B. Sosnowski, Hearing Examiner, LCC.” The findings of the Board of Hearing Examiners were dated September 7, 1950, and the signature was set forth as follows: "John B. Sosnowski, Member, Board of Hearing Examiners.”

The commission issued its decision on October 24, 1950, following a meeting of the commission on that day, suspending the license. On November 20, 1950, an attorney advised the commission that Napuche desired to "appeal the findings of the Commissioner to the Michigan Liquor Control Commission.” The hearing was held before two members of the commission on January 4, 1951, and further testimony was taken. The commission affirmed the earlier decision.

A petition for a writ of certiorari was filed with the Wayne Circuit Court on January 22, 1951, which set aside the order of the commission on the ground "that the Commission that made the findings did not hear the evidence.” The Attorney General filed a claim of appeal with this Court, which reversed and reinstated the decision of the commission.

98 A three-judge trial hearing is a rare exception. The United States Code provided at one time for a three-judge hearing where the constitutionality of a state or federal statute was challenged in the federal court. 28 USC 2281, 2282. This provision is now limited to an action challenging the constitutionality of the apportionment of congressional districts or of any statewide legislative body. 28 USC 2284. See 7 Moore’s Federal Practice (Part 2), ¶ 65.16.

Three-judge courts have also been convened in the circuit court on the rarest of occasions to consider complaints involving matters regarded by the judges as raising important and novel questions of law.

A healing conducted by three hearing officers is unknown or so rare that it is unknown. There may have been an occasional hearing by two or more hearing examiners in a particularly difficult, novel, or important case. It is inconceivable that a hearing on a matter as routine as whether to suspend or revoke a liquor license has ever or would ever be conducted by more than one person.

99 See n 73.

100 Allen v Duffie, 43 Mich 1, 11; 4 NW 427 (1880); Ajluni v West Bloomfield Bd of Ed, 397 Mich 462, 465; 245 NW2d 49 (1976); In re Apportionment of State Legislature—1982, 413 Mich 96, 113-114; 321 NW2d 565 (1982).

101 "The delegates to the 1961 Constitutional Convention are presumed to have known and to have understood the meaning ascribed in these earlier decisions to the language of the 1908 Constitution. This language was retained by them in the 1963 Constitution without modification in response to the earlier decisions. Under well-established principles, it is not open to us to place a new construction on this language.” Bds of Co Road Comm’rs v Bd of State Canvassers, 391 Mich 666, 676; 218 NW2d 144 (1974).

Similarly see Co Road Ass’n of Michigan v Bd of State Canvassers, 407 Mich 101, 121-122; 282 NW2d 774 (1979), and White v City of Ann Arbor, 406 Mich 554, 566; 281 NW2d 283 (1979).

102 The wcab, the members of which are excepted from the civil service system, makes decisions de novo on "cold” transcribed records without hearing or seeing live witnesses.

103 MCL 418.213; MSA 17.237(213).

104 Const 1963, art 5, § 3.

105 See n 16 and n 87.

106 Administrative Procedure Act, June 11, 1946, ch 324, 60 Stat 237; 5 USC 1001. Now 5 USC 551.

107 1943 PA 88, 1948 CL 24.71 et seq.; MSA 3.560(7), now MCL 24.201; MSA 3.560(101).

108 US Const, Ams V, XIV; Const 1963, art 1, § 17.

109 3 Davis, Administrative Law (2d ed), §§17:1-17:17, 17:11, 17:14. United States v Morgan, 298 US 468; 56 S Ct 906; 80 L Ed 1288 (1936).

110 Department of Labor. Commission on Agricultural Labor, 1968 PA 35, MCL 16.490; MSA 3.29(390), Commission for the Blind, 1978 PA 260, MCL 393.352; MSA 17.581(2), Construction Code Commission, 1972 PA 230, MCL 125.1503; MSA 5.2949(3), Construction Safety Commission, 1974 PA 154, MCL 408.1018; MSA 17.50(18), Elevator Safety Board, 1967 PA 227, MCL 408.807; MSA 17.495(7), Wage Deviation Board, 1964 PA 154, MCL 408.385; MSA 17.255(5).

Department of Natural Resources. Air Pollution Control Commission, 1965 PA 348, MCL 336.13; MSA 14.58(3), Exposition and Fair Grounds Council, 1978 PA 361, MCL 285.169; MSA 12.1280(59), Waterways Commission, 1947 PA 320, MCL 281.502; MSA 3.534(2).

Department of Commerce. Boundary Commission, 1968 PA 191, MCL 123.1002; MSA 5.2242(2), Mobile Home Commission, 1976 PA 419, MCL 125.1103; MSA 19.855(3).

Department of Management & Budget. Commission on Indian Affairs, 1972 PA 195, MCL 16.711; MSA 3.547(101).

Department of Licensing & Regulation. Carnival Amusement Safety Board, 1966 PA 225, MCL 408.653; MSA 18.484(3), ’Collection Practices Advisory Board, 1974 PA 361, MCL 445.226; MSA 19.655(36), ’Board of Registration for Professional Community Planners, 1966 PA 218, MCL 338.1358; MSA 18.170(8), ’Board of Forensic Polygraph Examiners, 1972 PA 295, MCL 338.1705; MSA 18.186(5), ’Board of Foresters, 1955 PA 78, MCL 338.723; MSA 13.215(3), ’Board of Hearing Aid Dealers, 1966 PA 265, MCL 338.1454; MSA 18.276(4), ’Board of Horology, 1965 PA 201, MCL 338.1403; MSA 18.275(3), ’State Board of Marriage Counselors, 1966 PA 292, MCL 338.1037; MSA 18.398(7), ’Board of Examiners of Massage, 1974 PA 251, MCL 338.1857; MSA 18.360(7), Board of Physical Therapy, 1978 PA 368, MCL 333.17821; MSA 14.15(17821), Board of Psychology, 1978 PA 368, MCL 333.18221; MSA 14.15(18221), ’Board of Examiners in Social Work, 1972 PA 352, MCL 338.1753; MSA 18.365(3), Ski Area Safety Board, 1962 PA 199, MCL 408.323; MSA 18.483(3), Toxic Substance Control Commission (department unclear), 1978 PA 116, MCL 286.183; MSA 14.529(103).

*1980 PA 299, the Occupational Code, MCL 339.101 et seq.; MSA 18.425(101) et seq., consolidates and reclassifies the laws regarding the regulation of certain occupations and creates a board for each occupation and procedure for licensing.

111 The licensing of architects and engineers, MCL 339.2002; MSA 18.425(2002), real estate brokers, MCL 339.2502; MSA 18.425(2502), and mobile home dealers, MCL 125.1103; MSA 19.855(3), are examples of licenses administered by a board or commission.

112 Mechanics, Bureau of Automotive Regulation, Mechanic Certification Division, MCL 257.1308, 257.1309; MSA 9.1720(8), 9.1720(9); Pet shops, Director of Agriculture, MCL 287.333, 287.334; MSA 12.481(103), 12.481(104).

113 See n 1.

114 Id.

115 See ns 84 and 85 and accompanying text.

116 The power of the chairperson to prescribe productivity standards gives him essentially the power this Court had granted to the chief judge of a multi-judge court. MCR 8.110. That power does not impinge on the independence or autonomy of Court of Appeals, circuit, district, or probate judges in multi-judge courts.

117 Requiring political accountability in such decisionmaking is consistent with the provisions of the constitution that limit the terms of office of judges of all courts to six years and of the justices of this Court to eight years, and requires judges and justices to stand for reelection. Const 1963, art 6, §§ 2, 9, Í2, 16.

118 MCL 418.863; MSA 17.237(863), 1948 CL 413.13; MSA 17.187.

119 See n 21.

120 Claims of $2,000 or less are to be heard in a separate division of the board by a magistrate. The magistrate’s decision in matters heard in that division is "final and nonappealable in the absence of fraud” as provided in the constitution. MCL 418.841(9); MSA 17.237(841)0).

121 MCR 2.613(C). Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976).

122 "All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.” Const 1963, art 6, § 28.

123 MCL 421.35; MSA 17.537, MCL 421.38; MSA 17.540.

124 MCL 423.3; MSA 17.454(3), MCL 423.23(3); MSA 17.454(25).

125 MCL 418.251(2); MSA 17.237(251X2).

126 Const 1963, art 11, § 5, f 4.

127 Const 1963, art 11, § 5, ¶| 4, 8.

128 See n 54.