Bennett v. City of Royal Oak School Dist.

10 Mich. App. 265 (1968) 159 N.W.2d 245

BENNETT
v.
CITY OF ROYAL OAK SCHOOL DISTRICT.

Docket No. 3,496.

Michigan Court of Appeals.

Decided March 26, 1968. Leave to appeal denied June 18, 1968.

Craig & Fieger, for plaintiff.

Patterson & Patterson, Barrett, Whitfield, Manikoff & White, for defendant.

Leave to appeal denied June 18, 1968. See 381 Mich. 755.

T.G. KAVANAGH, P.J.

In October, 1966, the superintendent of schools in the city of Royal Oak filed with the school board charges against plaintiff, a teacher, and requested his suspension and discharge. The board suspended plaintiff who then requested a hearing on the charges, pursuant to the tenure of teachers act. CL 1948, § 38.71 et seq., as amended (Stat Ann 1959 Rev and Stat Ann 1965 Cum Supp § 15.1971 et seq.). A hearing was held and the superintendent submitted his proofs and rested. Plaintiff Bennett thereupon moved for a dismissal of some of the charges against him on the ground that the superintendent had failed to establish a prima facie case as to them. The board denied the motion without giving any reasons therefor, and ordered Bennett to proceed with his defense. Rather than so proceed plaintiff filed a complaint in circuit court seeking a writ of superintending control (GCR 1963, 711) to compel the board to dismiss such charges. The circuit court dismissed plaintiff's complaint, and on leave granted plaintiff appeals.

Article 6 of the tenure act, supra, provides:

"A teacher who has achieved tenure status may appeal any decision of a controlling board under this act within 30 days from the date of such decision, to a state tenure commission." CL 1948, § 38.121, as amended by PA 1963, No 242 (Stat Ann 1968 Rev § 15.2021).

The word "decision" refers to a final disposition of the case and does not comprehend interlocutory rulings which are not decisive of a case. See Scola v. Director of Division of Employment Security (1950), 326 Mass 180 (93 NE2d 523). The denial, as opposed to the granting, of a motion to dismiss is palpably interlocutory. We view the board's action as an interlocutory ruling rather than an appealable "decision."

Plaintiff argues that because the ruling of the board is not appealable under the act his administrative remedy is inadequate and thus, he contends, the writ of superintending control should have been issued.

The fact that administrative action may be erroneous does not create any exception to the rule that the statutory administrative procedures must be exhausted before judicial relief is sought. Holland Furnace Company v. Purcell (DC Mich, 1954), 125 F Supp 74. Nor can the exhaustion rule be circumvented by asserting that the charges are groundless.

"Lawsuits * * * often prove to have been groundless; but no way has been discovered of relieving a defendant from the necessity of a trial to establish the fact." Myers v. Bethlehem Shipbuilding Corporation (1938), 303 U.S. 41, 51, 52 (58 S. Ct. 459, 464, 82 L. Ed. 638, 645).

The basis for the doctrine of exhaustion of administrative remedies is the presumption that "the administrative agency, if given a complete chance to pass upon the matter, will decide correctly, and [the doctrine] is at least influenced by the assumption that the agency will not fail in the performance of any duty imposed upon it by the Constitution and other laws." 2 Am Jur 2d, Administrative Law § 595, p 429.

A remedy is not "inadequate" so as to authorize judicial intervention before exhaustion of the remedy merely because it is attended with delay, expense, annoyance, or even some hardship. State, ex rel. O'Brien, v. Police Court of City of Seattle (1942), 14 Wash 2d 340 (128 P2d 332, 141 A.L.R. 1257); Rescue Army v. Municipal Court of City of Los Angeles (1946), 28 Cal 2d 460 (171 P2d 8). There must be something in the nature of the action or proceeding that indicates to the court that it will not be able to protect the rights of the litigants or afford them adequate redress otherwise than through the exercise of this extraordinary jurisdiction. An interlocutory administrative ruling such as the one in the case at bar, although not subject to statutory review when made, may nevertheless be challenged in a proceeding to review an administrative decision based upon such ruling.

Superintending control is a discretionary writ which should not be issued where another adequate remedy is available to the petitioner. In our view plaintiff's rights are adequately protected and his statutory remedy is adequate. Accordingly, we hold that the circuit court did not abuse its discretion in denying the writ.

There is no merit to plaintiff's contention that the board was required to assign reasons for denying his motion. The act provides that the hearing be concluded by a decision in writing, CL 1948, § 38.104 (Stat Ann 1968 Rev § 15.2004), but it does not require that reasons be given for every ruling it may make during the course of the hearing.

Affirmed. No costs as a public question is involved.

FITZGERALD and McGREGOR, JJ., concurred.