Goode v. Department of Social Services

143 Mich. App. 756 (1985) 373 N.W.2d 210

GOODE
v.
DEPARTMENT OF SOCIAL SERVICES

Docket No. 77428.

Michigan Court of Appeals.

Decided June 19, 1985.

Edward J. Hoort, for Selma Goode and Westside Mothers Welfare Rights Organization.

Legal Services of Eastern Michigan (by Terri L. Stangl), for Intermediate and United Welfare Rights Organizations.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Erica Weiss Marsden, Assistant Attorney General, for defendant.

Before: D.E. HOLBROOK, JR., P.J., and ALLEN and E.M. THOMAS,^[*] JJ.

PER CURIAM.

Plaintiffs, who are an individual and three welfare rights organizations, seek to compel defendant, Michigan Department of Social Services, to conduct its contested case hearings in conformity with the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq. This is an original action for mandamus.

Plaintiffs contend that the Open Meetings Act is violated by the defendant's having approximately 75 percent of the hearings conducted by telephone conference calls and that decisions regarding the hearings are not publicly made. Defendant planned to make the teleconference hearings standard procedure on October 1, 1984. Plaintiffs' motion to stay implementation of this procedure was granted by this Court on October 11, 1984.

Plaintiffs have requested mandamus.

"Mandamus is an extraordinary remedy. Clarke v Hill, 132 Mich. 434; 93 N.W. 1044 (1903). As this Court said in Stein v Director, Bureau of Workmen's Compensation, 77 Mich. App. 169, 173; 258 NW2d 179 (1977):

"``It is well established that mandamus is appropriate only when it clearly appears that the plaintiff has shown that he has a clear legal right to the performance of a specific duty by the defendant, and that the defendant has an uncontrovertible legal duty to act in the manner so requested.'

"Moreover, the ``lack of an adequate legal remedy is a necessity before a writ of mandamus may issue'. Cyrus v Calhoun County Sheriff, 85 Mich. App. 397, 399; 271 NW2d 249 (1978). See, also, Constantine v Liquor Control Comm, 374 Mich. 259, 261; 132 NW2d 146 (1965)." Khan v Jackson Prison Warden, 128 Mich. App. 224, 226; 340 NW2d 77 (1983). Additionally, if defendant had a clear legal duty to act and has not, mandamus is the appropriate remedy in the instant action.

The Social Welfare Act specifically provides that its hearings are to be conducted pursuant to the Open Meetings Act. MCL 400.9; MSA 16.409. Defendant argues that, as only a single person presides, these hearings do not come under the act. See 1977-1978 OAG, No. 5183-A, p 97 (April 18, 1977). We do not agree with this ruling of the Attorney General. We do not find the question of whether a multi-member panel or a single person presides to be dispositive. Such a distinction carries with it the potential for undermining the Open Meetings Act, as merely having a single person preside would exempt the public body from compliance with the act. This is not a situation where only one person is present, which would make holding a "meeting" impossible. 1977 OAG 5183-A. Rather, the single hearing officer convenes the hearing and witnesses and testimony are received. Additionally, it is clear that defendant could have multi-member panels. MCL 400.9; MSA 16.409.

The dispositive question is whether the performance of necessary governmental functions is open to the public. Rochester Community Schools Bd of Ed v State Bd of Ed, 104 Mich. App. 569, 578; 305 NW2d 541 (1981). We find no problem with the holding of hearings via teleconference calls.^[1] Such calls are heard through speaker phones and are audible to all in the room. Persons who wish to attend the hearing are allowed to do so and may attend at either location. The conference call setup actually increases the accessibility of the public to attend, as now more than one location is open to the public. While we recognize that to actually see and observe all the witnesses and the hearing officer is desirable, we do not find it necessary. We disagree with 1977 OAG 5183-A to the extent that it holds differently.

The policy of promptly conducting the hearings and quickly resolving the claims far outweighs the benefits of members of the public actually seeing the hearing. The rights of the public are adequately protected by telephonic hearings as open adjudications of claims and public access to the deliberations can be provided by the telephone hearing procedure.

Plaintiffs additionally argue that the Open Meetings Act is being violated as the actual decision is not made in public. There is no way that the hearing officer's thoughts and research can be done publicly. The only possible solution would be to require a second hearing to be scheduled and held. Such a result is ridiculous.

We find that to require the hearing officer to hold a second hearing so that his opinion could be read out loud would be extremely costly and defy common sense. In the interest of judicial economy, we find that releasing a written opinion to the public sufficiently meets the requirements of the act.

Mandamus denied. No costs. A public question involved.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.

[1] We by no means intend to infringe upon the rights of the welfare recipient to privacy. See MCL 15.268; MSA 4.1800(18), MCL 400.64; MSA 16.464.