Fort v. City of Detroit

146 Mich. App. 499 (1985) 381 N.W.2d 754

FORT
v.
CITY OF DETROIT

Docket No. 78256.

Michigan Court of Appeals.

Decided October 21, 1985.

Houston, Bunn, Houston & O'Connor (by M. Elizabeth Bunn), for plaintiff.

Donald L. Pailen, Corporation Counsel, Abigail Elias, Deputy Corporation Counsel, and Thomas L. Walters and Terri L. Hayles, Assistants Corporation Counsel, for City of Detroit.

Before: J.H. GILLIS, P.J., and BRONSON and M.J. KELLY, JJ.

M.J. KELLY, J.

Plaintiff appeals as of right from an order of accelerated judgment, GCR 1963, 116.1(2), dismissing his complaint against the City of Detroit and the Detroit Civil Service Commission for lack of subject matter jurisdiction. We reverse.

Plaintiff is a civil service employee of the City of Detroit. In May of 1978, plaintiff failed to receive a promotion for which he had been recommended by the supervisor of his work unit. Plaintiff was again recommended for a promotion by his supervisor in March of 1979 and, when he was passed over a second time, plaintiff filed a grievance with the Detroit Civil Service Commission in accordance with the applicable personnel rules and regulations. Following an administrative hearing, the commission's hearing officer ruled that plaintiff should be promoted to the position of Senior Job Development and Training Specialist. Several months later, on May 6, 1980, the commission reversed the hearing officer's recommendation and denied plaintiff's grievance.

On May 11, 1983, plaintiff filed this action in Wayne County Circuit Court against both the city and the commission, alleging that the city had improperly considered plaintiff's personal associations in withholding his promotion and that the commission had failed to comply with the Detroit City Charter and applicable rules and regulations governing civil service employment in denying his grievance. Plaintiff requested a court order directing that he be promoted to the appropriate position. Plaintiff also sought unspecified monetary damages. Defendants responded to plaintiff's complaint with an answer and various motions, including a motion for accelerated judgment premised on the ground that the trial court lacked subject matter jurisdiction over decisions of the commission. The court relied upon Robertson v Detroit, 131 Mich. App. 594; 345 NW2d 695 (1983), and granted defendants' motion.

In Robertson, the plaintiff filed a claim of appeal from a decision of the Detroit Civil Service Commission. The trial court granted accelerated judgment on the ground that the plaintiff had failed to file his claim of appeal within 20 days after entry of the commission's decision as required under GCR 1963, 701.2. In considering whether the 20-day filing requirement of that court rule applied, however, the panel in Robertson concluded that there was no direct appeal from decisions of general civil service commissions at the local level. This Court in Robertson recognized that Const 1963, art 6, § 28 guarantees judicial review of all decisions rendered by an administrative officer or agency but pointed out that review is available only "as provided by law". While the Legislature has provided for direct appellate review of decisions of local fire and police civil service commissions, MCL 38.501 et seq.; MSA 5.3351 et seq. (the firemen and policemen civil service act), and of all state administrative agency decisions, MCL 24.301 et seq.; MSA 3.560(201) et seq. (the Michigan Administrative Procedures Act), the Legislature has not created a mechanism for appealing decisions of general municipal civil service commissions. We agree with the Robertson panel's analysis and with its conclusion that there exists no avenue of direct appellate review from decisions of general municipal civil service commissions.

In this case, however, plaintiff has filed an original action in circuit court rather than a claim of appeal as did plaintiff in Robertson. The difference in these procedural postures is significant in that we are presented here with the much broader issue of whether any judicial relief is available to aggrieved civil service employees once a petition has been denied by a general municipal commission. We hold that the appropriate remedy for such employees is an action for superintending control in circuit court. We read Robertson narrowly to mean only that circuit courts have no jurisdiction over "claims of appeal" from civil service commissions.

Section 615 of the Revised Judicature Act vests the circuit courts of this state with "a general superintending control over all inferior courts and tribunals, subject to Supreme Court rule". MCL 600.615; MSA 27A.615. Tribunals include administrative agencies acting in a judicial or quasi-judicial capacity, Parshay v Warden of Marquette Prison, 30 Mich. App. 556, 559; 186 NW2d 859 (1971), such as local civil service commissions. Beer v Frazier Civil Service Comm, 127 Mich. App. 239, 243; 338 NW2d 197 (1983), In re Fredericks, 285 Mich. 262; 280 N.W. 464 (1938). Actions for superintending control must comply with MCR 3.302, formerly GCR 1963, 711.

In Beer v Frazier Civil Service Comm, supra, the city challenged a decision of the local civil service commission by way of an action for superintending control. That case is not precisely on point as the city was the aggrieved party and the commission had been formed under the firemen and policemen civil service act, MCL 38.501 et seq.; MSA 5.3351 et seq., which allows an employee to directly appeal a decision of the commission to circuit court. Nevertheless, Beer is important for our purposes in light of its general review of the applicable law. Actions for superintending control are original civil actions rather than appeals and are not appropriate where parties have the available remedy of an appeal. The purpose of an action for superintending control is to order a defendant to perform a clear legal duty. See 127 Mich. App. 242-243 and cases cited therin. In Beer, we found that the city did not have a right to appeal the commission's decision under the firemen and policemen civil service act and could thus challenge the commission's decision in circuit court by initiating an action for superintending control.

A similar analysis applies in the instant case. Under Robertson, it is clear that plaintiff does not have a right to directly appeal the commission's decision in his case. Plaintiff's remedy is thus to proceed in circuit court against the commission by way of an action for superintending control. In addition to the authority already cited, we find further support for our decision in Lenz v Mayor of Detroit, 338 Mich. 383; 61 NW2d 587 (1953); Erlandson v Genesee County Employees' Retirement Comm, 337 Mich. 195; 59 NW2d 389 (1953); Public Welfare Comm of Detroit v Civil Service Comm of Detroit, 289 Mich. 101; 286 N.W. 173 (1939), and Rinaldi v City of Livonia, 69 Mich. App. 58; 244 NW2d 609 (1976). In all of these cases, an employee or the employer properly appealed from a decision of the local commission either by writ of certiorari, under the old rules, or by order of superintending control under the current rules.

Plaintiff in this case did not specifically identify his complaint as a complaint for superintending control as required under MCR 3.302(E)(1), formerly GCR 1963, 711.5(a). However, it is clear that plaintiff filed an independent civil action and not a claim of appeal and we find that no prejudice will result if, on remand, plaintiff is permitted to amend his complaint to specify it as an action for superintending control. The issues presented will be essentially the same as those that were presented in the initial complaint and the proper parties to this action have all been served. We note, however, that plaintiff will have to refashion his prayer for relief in a manner that is consistent with the relief available through this extraordinary remedy.

Reversed and remanded.