Porter v. Board of Optometry

41 Mich. App. 150 (1972) 199 N.W.2d 666

PORTER
v.
BOARD OF OPTOMETRY.

Docket No. 12815.

Michigan Court of Appeals.

Decided May 26, 1972.

Philip A. Clancey, for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Michael D. Lewis, Assistant Attorney General, for defendant.

Before: QUINN, P.J., and McGREGOR and BRONSON, JJ.

QUINN, P.J.

Plaintiff's license was suspended for a period of three months by the State Board of Examiners in Optometry upon the board's finding that plaintiff had violated the Michigan optometry act, MCLA 338.251 et seq; MSA 14.641 et seq. Plaintiff filed a petition for review in circuit court pursuant to the procedure outlined in the Administrative Procedures Act of 1969, MCLA 24.301, 24.306; MSA 3.560(201), 3.560(206). The circuit judge affirmed the decision of the Board of Optometry, and plaintiff filed a claim of appeal in this Court. Defendant now asks this Court to dismiss the appeal for lack of jurisdiction.

Is the judgment of the circuit court on review of administrative proceedings a final judgment appealable as of right? The answer is no and defendant's motion to dismiss is granted.

MCLA 600.308; MSA 27A.308 establishes the jurisdiction of the Court of Appeals. MCLA 600.309; MSA 27A.309 establishes the right of appeal. GCR 1963, 806 governs appeals by right and by leave. GCR 1963, 806.2(1) requires leave to appeal from judgments and orders of administrative agencies or tribunals which by law are appealable to the Court of Appeals or the Supreme Court. GCR 1963, 806.6 deals with obtaining leave to appeal from administrative bodies and officers.

We recognize that GCR 1963, 806.2(1) and 806.6 relate to appeals from administrative agencies directly to the Court of Appeals and not to appeals from a circuit court which has reviewed administrative proceedings. However, to distinguish on this basis leads to the illogical result of restricting direct appeal from administrative agencies to the Court of Appeals to leave to appeal, but granting a right of appeal when review is first sought in circuit court. This we decline to do.

Logic is not the only basis for our action. In speaking of the constitutional right of review of administrative proceedings, Const 1963, art 6, § 28, the Supreme Court said in Evans v United States Rubber Company, 379 Mich. 457, 461 (1967):

"We do not read the above language, `shall be subject to direct review by the courts as provided by law', to mean that in each such case review shall be compulsory or as of right upon its being invoked by either party but only that review shall be had when, in the exercise of judicial judgment and discretion, the court shall, on application, so determine, or when so provided by law."

Later in the same opinion, the Court held that MCLA 600.308 and 309; MSA 27A.308 and 309 apply to appeals as of right in "civil matters in the courts". GCR 1963, 806.1 speaks to civil matters. Review of administrative proceedings by a court does not change an administrative proceeding to a civil proceeding, and the Supreme Court, at least by implication, so held in Evans, supra.

Defendant's motion to dismiss is granted and this appeal is dismissed for lack of jurisdiction but without costs.

All concurred.