Department of Public Health v. Rivergate Manor , 452 Mich. 495 ( 1996 )

550 N.W.2d 515 (1996) 452 Mich. 495

PUBLIC HEALTH DEPARTMENT, Plaintiff-Appellee,
v.
RIVERGATE MANOR and Senior Services Development Associates, Defendants-Appellants, and
Certificate of Need Board, Defendant.

Docket No. 100631, Calendar No. 10.

Supreme Court of Michigan.

Argued March 6, 1996. Decided July 16, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Ronald J. Styka, Assistant Attorney General, Lansing, for plaintiff.

Sommers, Schwartz, Silver & Schwartz, P.C. by Patrick Burkett, Southfield, and Cook, Goetz & Rogers, P.C. by John A. Cook, Bloomfield Hills, for defendants.

OPINION

LEVIN, Justice.

We granted leave to appeal to decide whether the circuit court erred in entering an order of superintending control, declaring that the Certificate of Need Board of the Department of Public Health acted "without authority" in granting Rivergate Manor's request for modification of a certificate of need issued by the board. The Court of Appeals, in an unpublished opinion,^[1] affirmed the decision of the circuit court. We affirm.

I

In 1983, Rivergate Manor applied to the Michigan Department of Public Health, pursuant to part 221 of the Public Health Code,^[2] for a certificate of need to permit it to construct a 223-bed nursing home in the City of Riverview. The department denied Rivergate's application on the ground that it had failed to show a need for the proposed home in the subarea where Riverview is situated.^[3]

The Certificate of Need Board reversed the department's decision and, in October, 1987, issued a certificate of need to Rivergate.

Rivergate then entered into an agreement with Senior Services Development Associates to transfer its common stock to Senior Services for $125,000 if Rivergate was able to have the certificate of need amended to allow construction of a nursing home in Westland,^[4] which is located in a different subarea than Riverview.

In July 1990, Rivergate communicated with the Department of Public Health in an effort to have the certificate of need modified. The department responded that the certificate of need was site specific and not transferable. After Rivergate asked for clarification, a department representative responded that because the certificate had been granted by the Certificate of Need Board and not by the department, the department was "without authority" to modify it.

Rivergate then requested a modification of the certificate from the Certificate of Need Board, explaining why it thought it would be appropriate for the board to modify the certificate of need to allow the project to be built in the northwest Wayne, rather than the southwest Wayne, subarea. On October 2, 1990, the board held a public meeting at which Rivergate's request was discussed in some depth. Twenty days later, the board granted Rivergate the requested modification.

After the release of the board's decision, Rivergate and Senior Services completed the sale of Rivergate's common stock at a lower purchase price. The closing included an immediate nonrefundable payment of $25,000 from Senior Services to Rivergate.

On January 16, 1991, the Department of Public Health filed a complaint in the Ingham Circuit court, seeking an order of superintending control over the Certificate of Need Board on the ground that the procedure it employed in reviewing Rivergate's request was contrary to law. After both parties filed motions for summary disposition, the circuit court granted summary disposition for the department under MCR 2.116(C)(10). Stating that the board must "act in accordance with law and only to the extent of its statutory authority," the court vacated the board's order granting the modification of Rivergate's certificate of need.

The Court of Appeals affirmed in an unpublished per curiam opinion.^[5]

II

We first consider whether the circuit court had jurisdiction under the circumstances to superintend the Certificate of Need Board. We conclude that it did.

A

The constitution,^[6] and the Revised Judicature Act^[7] provide that the circuit court has superintending control over inferior courts and tribunals subject to rules promulgated by this Court. This power of superintending control, enforced by an order of superintending control,^[8] is available only in a limited number of circumstances. "An order of superintending control ... traditionally has been used only to determine ``if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law.'" In re People v. Burton, 429 Mich. 133, 139, 413 N.W.2d 413 (1987), quoting Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 194 N.W.2d 693 (1972).^[9]

An order of superintending control will not be granted when the party seeking the order is entitled to pursue an appeal.^[10] Nor will an order of superintending control be issued where the petitioner seeks to employ the court's power to superintend as a substitute for an appeal or to evade a statutory prohibition of an appeal.^[11]

Both parties concede that the Department of Public Health is precluded by statute from appealing the Certificate of Need Board's decision.^[12] The department asserted in its complaint for superintending control that "the CON Board has acted contrary to law," and "violated its clear legal duty" by making its decision to modify Rivergate's certificate of need without observing the requisite procedural safeguards. The department did not take issue with the substantive merits of the board's decision to modify Rivergate's certificate. We conclude that under the circumstances, the circuit court had jurisdiction to consider the department's complaint seeking superintending control.

B

Rivergate and Senior Services assert that an order of superintending control nevertheless is not available, arguing that "superintending control is an inappropriate remedy where an appeal has been specifically precluded by the Legislature." They rely on In re People v. Burton, in which this Court concluded that the Court of Appeals improperly exercised superintending control authority when it reversed the trial court's order granting a new trial.

In re People v. Burton and Michigan Affiliated Healthcare System v. Dep't Public Health, 209 Mich.App. 699, 531 N.W.2d 722 (1995), also cited by Rivergate and Senior Services, dealt with situations in which superintending control was sought to review a lower court's or tribunal's decision on the merits, not to inquire whether a lower court or tribunal had the authority to act in the manner in which it did.

The situation here is somewhat similar to that in Genesee Prosecutor v. Genesee Circuit Judge, supraat 684, 194 N.W.2d 693. There, the judge had the power or jurisdiction to amend the information to add a related offense with a lesser penalty, and to accept a plea of guilty to the lesser offense, but did so without the consent, and over the objection, of the prosecutor. This Court held that because the "judge acted without authority in amending the information over the objection of the prosecutor," a writ of superintending control would issue vacating the decision of the judge. We conclude, as set forth in part III(A), that the Certificate of Need Board has the power (jurisdiction) to modify a certificate of need, but, as set forth in part III(B), failed to notify the department and minimally provide it with an opportunity to object to the modification. The board, much like the Genesee circuit judge, "acted without authority in amending" (modifying) the certificate.

III

We turn to the question whether the circuit court, which we have found had jurisdiction to issue an order of superintending control, properly exercised its power in this case. "Whether an order of superintending control should issue depends upon the circumstances in the specific case." In re People v. Burton, supraat 142, 413 N.W.2d 413. We conclude that the Certificate of Need Board exceeded its authority when it granted the requested modification without observing the requisite procedural safeguards. The circuit court acted properly in issuing the order of superintending control order under the circumstances.

A

The Department of Public Health argues that the Certificate of Need Board lacked the power to modify Rivergate's certificate of need. There is, indeed, nothing in part 221 of the Public Health Code that explicitly stated that the board is provided such power. The closest the act came to addressing the authority to modify was § 22123(2)(d), which provided that the Department of Public Health was to promulgate rules necessary to implement part 221, which could "include:... [t]he duration, modification, and extension of certificates issued under this part." (Emphasis added.)

The absence of an explicit grant of authority is not dispositive. This Court, in Coffman v. State Bd. of Examiners in Optometry, 331 Mich. 582, 590, 50 N.W.2d 322 (1951), said "powers [of administrative boards] are limited by the statutes creating them to those conferred expressly or by necessary or fair implication." Quoting 42 Am. Jur., § 26, pp. 316 ff (emphasis added). The Certificate of Need Board, by necessary and fair implication, had the power to modify a certificate of need that it had previously granted.

The language of § 22123(2)(d) respecting "modification" evidences that the Legislature intended that the power to modify certificates of need would be exercised by some administrative body, either the Certificate of Need Board or the Department of Public Health. The department's failure to promulgate rules clarifying under what circumstances, if any, a certificate of need may be modified, does not negate the legislative expectation that, in appropriate circumstances, modification is permissible.

We conclude that the Certificate of Need Board, the tribunal that issued the certificate of need, had the authority to modify its earlier decision. "Every tribunal, judicial or administrative, has some power to correct its own errors or otherwise appropriately to modify its judgment, decree, or order." 2 Davis, Administrative Law, § 18.09, p. 606.

B

Although the Certificate of Need Board possessed the power to modify its decision, it was required to exercise that power in an appropriate manner. In this case, the board was presented with a request to change the specifics of the original certificate, to substitute a new location in a different subarea for the original, and to modify the project costs. This was not a minor or insignificant request. To the contrary, when a request for modification by the certificate holder seeks permission to build the proposed facility in a different subarea, all prior considerations regarding need, made by the board in the context of the original application, are rendered largely irrelevant. The central statutory issue whether there is a need, the question at the core of the certification process,^[13] must be reevaluated, focusing on the new locale.

Section 22121(3) provided that the appeals hearing held by the Certificate of Need Board "shall be conducted pursuant to the administrative procedures act of 1969." M.C.L. § 333.22121(3); M.S.A. § 14.15(22121)(3). It is not claimed that the 1987 board hearing failed to satisfy this requirement.

The modification hearing conducted by the board did not, however, comply with the Administrative Procedures Act. While it may not be necessary to observe APA procedural requirements when the modification issue is relatively minor, when the issue involves a change in subarea, the board was required to observe the same standards required in the initial review. A request for modification involving a new subarea raises the same need-related issues that were present in the earlier appeals hearing.

The hearing conducted by the board to review Rivergate's and Senior Services' request for modification failed to observe the APA requirements in two respects. First, no notice of Rivergate's request to modify was given to anyone at the Department of Public Health.^[14] The request was only added to the October 2, 1990, agenda after the board's meeting had already begun. This was contrary to APA, § 82.^[15] In addition, the board's brief decision granting the requested modification did not include "findings of fact and conclusions of law," nor was it "supported by and in accordance with the competent, material, and substantial evidence" as required by § 85. Rather, the board released a decision that only served to provide notice of the outcome and, as is clear from a reading of the transcript of the hearing, the decision was based solely on the representations of Rivergate's agent that the Westland subarea was in need of the facility.

IV

We now address Rivergate's and Senior Services' contention that the decision of the Court of Appeals should be reversed because the department's complaint for superintending control was barred by laches and equitable estoppel or, in the alternative, because the department lacks the authority to challenge the Certificate of Need Board's approval of Rivergate's modification request because it failed to promulgate a state medical facilities plan as required by the certificate of need statute.

A

Rivergate and Senior Services base their laches claim on the department's eighty-six-day delay before filing a complaint seeking superintending control. In the interim, the two apparently finalized their transaction with Senior Services, paying Rivergate a nonrefundable down payment of $25,000.

The doctrine of laches is a tool of equity that may remedy "``the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert.'" Lenawee Co. v. Nutten, 234 Mich. 391, 396, 208 N.W. 613 (1926). It is applicable in cases in which there is an unexcused or unexplained delay in commencing an action and a corresponding change of material condition that results in prejudice to a party. Lothian v. Detroit, 414 Mich. 160, 168, 324 N.W.2d 9 (1982); McGregor v. Carney, 271 Mich. 278, 280, 260 N.W. 163 (1935); 11A Callaghan, Michigan Pleading & Practice (2d ed.), § 92,12, p. 580.

Assuming that the department's delay in filing its complaint for superintending control can be considered unacceptably long, we conclude that the doctrine of laches does not invalidate the decision of the circuit court because Rivergate and Senior Services cannot show sufficient prejudice. The basis for the claim that the Rivergate and Senior Services suffered harm from the delay is Senior Services' assertion that it has already paid a nonrefundable $25,000 down payment to Rivergate, and is obligated to purchase Rivergate's now worthless common stock for $100,000.

Equity, by its very nature, requires the weighing of often competing interests to reach an outcome that is fair and just to all involved. Even if Senior Services' assertion that it will lose $25,000 and is obligated to pay another $100,000 because of its agreement with Rivergate is accurate, we are unable to conclude that such a result is "unfair" or "unjust" in the light of the comparatively greater injustice to the citizenry of licensing a health care facility in what may well be an already over-bedded region. See Bennington Twp. v. Maple River Inter-Co Drain Bd., 149 Mich.App. 579, 588, 386 N.W.2d 599 (1986).

Rivergate and Senior Services also assert that the decision of the Court of Appeals should be reversed by the application of the doctrine of equitable estoppel. Because equitable estoppel, like laches, requires a showing of prejudice, we similarly reject Rivergate's and Senior Services' equitable estoppel argument.

B

Finally, Rivergate Manor and Senior Services contend that the Court of Appeals decision should be reversed because the Department of Public Health is powerless to challenge the Certificate of Need Board's approval of Rivergate's requested modifications because the department failed to properly publish a state medical facilities plan. In West Bloomfield Hosp v. Certificate of Need Bd, 452 Mich. 515, 550 N.W.2d 223 (1996), we reject this contention.

Affirmed.

BRICKLEY, C.J., and MICHAEL F. CAVANAGH, BOYLE and MALLETT, JJ., concur with LEVIN, J.

RILEY, Justice (concurring).

I agree with the majority that the circuit court properly issued an order of superintending control over the Certificate of Need Board to determine whether the board "``had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law.'" Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 681, 194 N.W.2d 693 (1972), quoting In re Fredericks, 285 Mich. 262, 267, 280 N.W. 464 (1938). I write separately to express my belief that Rivergate Manor's request to change subareas, inter alia, did not, as a matter of law, constitute a modification and should have been submitted for consideration to the department in the form of a new application for a certificate of need. Accordingly, I find it unnecessary to decide whether the Certificate of Need Board has the authority to modify a certificate of need.

A

Through 1978 P.A. 368, M.C.L. § 333.22123(2); M.S.A. § 14.15(22123)(2), the Legislature granted the department the authority to

promulgate rules necessary to implement this part. The rules may include:

* * *

(c) Procedures for state and local review of applications for issuance of a certificate of need and modification....

(d) The duration, modification, and extension of certificates issued under this part. [Emphasis added.]

Pursuant to M.C.L. § 333.22123(2); M.S.A. § 14.15(22123)(2), the department promulgated rules, including 1986 AACS, R 325.9413(1), specifically addressing amendment of certificates:

An applicant may make a written request to the department for an amendment to a certificate of need. After consultation with the appropriate health systems agency, a determination shall be made by the department whether the amendment does or does not require another review. A certificate of need issued after a concurrent comparative review shall not be amended to increase the scope of the project. Unless waived by the department, amendments to a certificate of need shall be subject to the same conditions and stipulations imposed on the original certificate.

Because the request in this case involved an entirely new project in a different subarea, it is not necessary to decide whether, in an appropriate case in which the request for modification does not change the "scope" of the project, the Certificate of Need Board has the power to modify a certificate of need it has issued.

B

In response to the National Health, Planning and Resources Development Act, 42 U.S.C. § 300k et seq. (now repealed), the Legislature enacted 1978 P.A. 368, M.C.L. § 333.22101 et seq.; M.S.A. § 14.15(22101) et seq., as part of the Public Health Code. Both were intended to contain rising health care costs and avoid unnecessary duplication of facilities and services while continuing to provide for the health of citizens. See Shannon, Certificate of need: Where it has been and where it is going, 67 Mich. B. J. 592 (1988). The Legislature declared that the certificate of need program was established in order to:

(a) Provide for review and determination of need before new institutional health services, facilities, and organizations are offered or developed or substantial expenditures are undertaken in preparation for the offering or development.

(b) Provide that only needed services, facilities, and organizations shall be offered or developed in this state.

(c) Meet the policies and procedures governing the issuance of certificates of need required for projects under federal grant-in-aid programs and federal loan guarantee programs. [M.C.L. 333.22111; M.S.A. § 14.15(22111) (emphasis added).]

The Court of Appeals has noted that the underlying purpose of the legislation was to prevent "the construction of unneeded health facilities." Greenbriar Convalescent Center, Inc. v. Public Health Dep't, 108 Mich.App. 553, 558, 310 N.W.2d 812 (1981). To that end, the state established subareas designated by county, except Wayne, which is divided into three subareas. Determinations of the existence of a need for health facilities was then evaluated by subarea. M.C.L. § 333.22131(1); M.S.A. § 14.15(22131)(1) established a litany of criteria that the department and a health systems agency must consider when determining whether to issue a certificate of need. The criteria is weighted on a scale of one to three.^[1] The following criteria were given a weight of three, i.e., "very important":

(c)The need of the population served or to be served for the health care facilities or services being reviewed.

(d) The feasibility and availability of less costly alternatives or more effective methods of providing the health care facilities or services being reviewed.

(e) The relationship of the health care facilities or services being reviewed to the existing health care systems of the health services areas in which the facilities or services are provided or proposed, including the probable impact on the costs of providing health services in the areas served. [Emphasis added.]

C

Mindful of the evaluating criteria and, hence, the specific purposes of the legislation, we must closely review Rivergate's request in this case. After the department denied Rivergate's certificate of need, Rivergate appealed to the Certificate of Need Board. On October 28, 1987, the board granted a certificate of need to Rivergate, stating that "[t]his project involves the construction of a long-term care facility which would be licensed for 200 long-term nursing care beds and 23 home for the aged beds. The facility would be located on a site which fronts on Pennsylvania Avenue and is adjacent to Fort Street in Riverview (Wayne County)." In 1990, Rivergate requested that the location of the project be changed from the City of Riverview to the City of Westland, which is located in a different subarea, and changed the project costs from $5.4 million to approximately $7 million.

Rivergate's request to change the subarea in the existing certificate of need would require a totally new evaluation using the criteria listed in M.C.L. § 333.22131(1); M.S.A. § 14.15(22131)(1).^[2] This request for "modification" strikes at the very heart of the legislation.^[3] Given that the entire purpose of the legislation was to control the number of beds in a given subarea, to allow such a modification by amendment of an existing certificate of need would frustrate the purpose of the act. Such a modification would not only extend the "scope" of the project,^[4] it contemplates a totally new project that would require a wholly new determination of the need for such a facility in the proposed subarea. This would require the same process previously used by Rivergate to obtain the original certificate of need. Accordingly, Rivergate's request to build a facility in a different subarea should have been in the form of a new certificate of need.

D

Finally, having characterized Rivergate's request as more than a mere modification or amendment, it is unnecessary for me to decide whether the Certificate of Need Board had the authority to modify the certificate of need. In this case, the board exceeded its authority by approving what was essentially a new certificate of need. The request to change subareas should have been in the form of a new certificate of need submitted to the department and then, if denied, appealed to the Certificate of Need Board. Accordingly, I would affirm the decision of the Court of Appeals on this basis.

WEAVER, J., concurs with RILEY, J.

NOTES

[1] Issued June 13, 1994 (Docket No. 146841).

[2] 1979 CL 333.22101 et seq.; part 221 was repealed and replaced by 1988 P.A. 332, effective October 1, 1988, with part 222, M.C.L. § 333.22201 et seq.; M.S.A. § 14.15(22201) et seq.

[3] For statutory purposes, Riverview is located in the southwest Wayne subarea, also known as subarea 68.

[4] A modification of financial terms set forth in the certificate of need was also a prerequisite.

[5] This Court granted Rivergate's application for leave to appeal, 450 Mich. 873, 539 N.W.2d 506 (1995).

[6] Const. 1963, art. 6, § 13.

[7] M.C.L. § 600.615; M.S.A. § 27A.615.

[8] See MCR 3.302(A).

[9] See also Beer v. Fraser Civil Service Comm., 127 Mich.App. 239, 242, 338 N.W.2d 197 (1983), stating that an order of superintending control "is an original civil action designed to require the defendant to perform a clear legal duty," citing People v. Flint Municipal Judge, 383 Mich. 429, 432, 175 N.W.2d 750 (1970).

[10] When an appeal in the Supreme Court, the Court of Appeals, the circuit court, or the recorder's court is available, that method of review must be used. If superintending control is sought and an appeal is available, the complaint for superintending control must be dismissed. [MCR 3.302(D)(2).]

See also In re Payne, 444 Mich. 679, 687, 514 N.W.2d 121 (1994).

[11] In re People v. Burton, at 142, 413 N.W.2d 413.

[12] If an applicant for a certificate of need is aggrieved by the decision of the department or if the recommendation of the health systems agency is not accepted, the applicant or the health systems agency may request a hearing to be conducted pursuant to the administrative procedures act of 1969 by the appeals authority created pursuant to section 22121(2). The decision of the appeals authority to issue or deny a certificate of need shall be final and is binding on the department. [1978 P.A. 368, § 22165, M.C.L. § 333.22165; M.S.A. § 14.15(22165), repealed by 1988 P.A. 332.]

[13] M.C.L. § 333.22111; M.S.A. § 14.15(22111), repealed by 1988 P.A. 332, provided, in relevant part:

A certificate of need program shall be established and shall:

* * *

(b) Provide that only needed services, facilities, and organizations shall be offered or developed in this state.

Consistent with this, M.C.L. § 333.22132; M.S.A. § 14.15(22132) provided in part:

In reviewing a request for a certificate for construction of, conversion of, addition to, or modernization of a health facility, including a project to correct a licensing deficiency, approval shall be based on, but not limited to, a demonstrated current and future need for the facility or a part of the facility.

See also Greenbriar Convalescent Center v. Public Health Dep't, 108 Mich.App. 553, 558, 310 N.W.2d 812 (1981), "The purpose underlying both state and federal [certificate of need] statutes is to contain the costs of medical care by restricting the construction of unneeded health facilities."

[14] This appears in the statement of the department's representative at the board meeting. When asked to respond to Rivergate's representative's comments regarding the modification, he said, "I don't know what the department's position is because I had no notice this was going to be on the agenda."

[15] Section 82 provides:

Unless required for disposition of an ex parte matter authorized by law, a member or employee of an agency assigned to make a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party nor, in connection with any issue of law, with any party or his representative, except on notice and opportunity for all parties to participate. [M.C.L. § 24.282; M.S.A. § 3.560(182) (emphasis added).]

[1] See 1986 AACS, R 325.9208.

[2] See Downriver Nursing Associates v. Public Health Dep't, 193 Mich.App. 594, 484 N.W.2d 748 (1992), in which the Court of Appeals rejected the argument that a certificate of need could be modified to change the site of a proposedthe proposed change was within the same subarea as the specified city in the original certificate of need. Finding that an issued certificate of need conveys a property interest, the Court held that "[t]he [certificate of need], as issued, did not provide plaintiffs a property interest in any project outside the City of Dearborn." Id. at 601, 484 N.W.2d 748.

[3] Indeed, the majority acknowledges that resolution of Rivergate's request requires a new determination whether there is a need in a different subarea.

[4] 1986 AACS, R 325.9413 prohibits an amendment of a certificate of need that would "increase the scope of the project."