Durant v. Department of Education

110 Mich. App. 351 (1981) 313 N.W.2d 571

DURANT
v.
DEPARTMENT OF EDUCATION.

Docket No. 51431.

Michigan Court of Appeals.

Decided October 19, 1981.

Clark, Hardy, Lewis, Fine & Pollard, P.C. (by Dennis R. Pollard and Gary Pollack), for plaintiffs.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald F. Young and James E. Riley, Assistants Attorney General, for defendants.

Before: DANHOF, C.J., and M.F. CAVANAGH and D.R. FREEMAN,^[*] JJ.

PER CURIAM.

Plaintiffs seek mandamus to compel defendants to fund the Fitzgerald Public Schools in the same proportion those schools were funded in fiscal year 1978-1979, pursuant to the so-called Headlee Amendment, Const 1963, art 9, §§ 25-34.

Plaintiffs claim that the state has provided for a smaller percentage of operating revenues for general public education in the Fitzgerald Public Schools, in addition to special education and driver education, than is required under the Headlee Amendment. Defendants deny that less money has been provided and dispute plaintiffs' standing to bring this suit. This Court issued an order to show cause, GCR 1963, 816.2(2)(c), thereby bringing the issues presented before us for plenary consideration.

Our consideration of the briefs and arguments convinces us that the issues presented involve questions of fact and mixed questions of fact and law, as well as questions of law. See Deziel v Difco Laboratories, Inc, 394 Mich. 466, 475; 232 NW2d 146 (1975). Although there may be exceptions for extraordinary circumstances, in general mandamus will not lie in cases involving disputed or doubtful facts. Powers v Secretary of State, 309 Mich. 530; 16 NW2d 62 (1944).

While plaintiffs assuredly have standing to contest the appropriations for public education, Waterford School Dist v State Board of Education, 98 Mich. App. 658; 296 NW2d 328 (1980), Const 1963, art 9, § 32, the fact that standing has been conferred does not alter the general principles applicable to prerogative writs. Lepofsky v City of Lincoln Park, 48 Mich. App. 347, 356; 210 NW2d 527 (1973).

Where an administrative remedy exists, mandamus will lie only to compel the administrative agency to carry out its statutorily assigned function. Mandamus will not be utilized to usurp the powers and duties of the administrative agency. Sears v Dep't of Treasury, 57 Mich. App. 218; 226 NW2d 63 (1974). This principle flows from the general rule that a precondition to judicial relief is exhaustion of administrative remedies. Oak Construction Co v Dep't of State Highways, 33 Mich. App. 561; 190 NW2d 296 (1971). The only exceptions to this rule are those situations in which resort to an alternative remedy would obviously be a useless effort, Welfare Employees Union v Civil Service Comm, 28 Mich. App. 343; 184 NW2d 247 (1970), lv den 384 Mich. 824 (1971), or declaratory judgment actions challenging the constitutionality of the administrative remedy. Trever v Sterling Heights, 37 Mich. App. 594; 195 NW2d 91 (1972), Dation v Ford Motor Co, 314 Mich. 152; 22 NW2d 252 (1946).

In the present case, the Legislature has chosen to establish an administrative remedy by creating the local government claims review board, 1979 PA 101; MCL 21.240; MSA 5.3194(610). The statute creating this agency does not appear to be unconstitutional on its face, cf. Request for Advisory Opinion on the Constitutionality of 1979 PA 57, 407 Mich. 60; 281 NW2d 322 (1979), and 407 Mich. 506; 286 NW2d 686 (1979), inasmuch as Const 1963, art 9, § 34 directs the Legislature to "implement the provisions of Sections 25 through 33, inclusive, of this Article". It is thus particularly appropriate for this Court, at this time, to defer to the Legislature and the remedy it has provided to resolve these issues of first impression. Rostker v Goldberg, ___ US ___; 101 S. Ct. 1646; 69 L. Ed. 2d 478 (1981).

After the duly designated administrative authorities have had the opportunity to consider plaintiffs' claims on a suitable evidentiary record, plaintiffs, if still aggrieved, will have available adequate review in a judicial forum. MCL 600.631; MSA 27A.631, Harper Hospital Employees' Union v Harper Hospital, 25 Mich. App. 662, 666-667; 181 NW2d 566 (1970).

On this record, however, we cannot say that the administrative remedy afforded is patently useless or facially unconstitutional. Accordingly, in light of the existence of alternate remedies, mandamus must be denied. Oakland County Board of Road Comm'rs v State Highway Comm, 79 Mich. App. 505, 508; 261 NW2d 329 (1977), lv den 402 Mich. 907 (1978), Hunt v State Highway Comm'r, 350 Mich. 309; 86 NW2d 345 (1957).

The complaint for mandamus is therefore denied, without prejudice to the right of plaintiffs to pursue alternate remedies provided by law.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.