In Re Payne

193 Mich. App. 620 (1992) 484 N.W.2d 759

In re PAYNE

Docket No. 132854.

Michigan Court of Appeals.

Decided April 7, 1992, at 9:45 A.M.

Pinsky, Smith, Fayette & Hulswit (by H. Rhett Pinsky), for the plaintiff.

O'Toole, Johnson, Potter, Rolf, Grafton & Eklund (by John C. Schrier), for the defendants.

Before: FITZGERALD, P.J., and HOOD and CAVANAGH, JJ.

PER CURIAM.

Defendant, the City of Muskegon Board of Civil Service Commissioners, appeals from the circuit court's order of superintending control directing it to set aside plaintiff's discharge and to determine an appropriate sanction less than discharge. Defendant contends inter alia that the circuit court used an improper standard when reviewing the board's decision to affirm plaintiff's firing. We agree.

In exercising superintending control over an inferior tribunal, a reviewing court is invoking an extraordinary power. In re Huff, 352 Mich. 402; 91 NW2d 613 (1958). An order of superintending control, which is comparable to a writ of certiorari, traditionally has been used only to determine if the inferior tribunal, upon the record made, had jurisdiction, whether it exceeded that jurisdiction, and whether it proceeded according to law. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 681; 194 NW2d 693 (1972).

The process of seeking an order of superintending control is not an appeal. It is an original civil action designed to require the defendant to perform a clear legal duty. Beer v Fraser Civil Service Comm, 127 Mich. App. 239, 242; 338 NW2d 197 (1983). The review in such a case is limited only to questions of law. In re People v Burton, 429 Mich. 133, 139; 413 NW2d 413 (1987). A reviewing court cannot substitute its judgment of the facts if there is any competent testimony in the record to support the findings made below. Bay Trust Co v Dow Chemical Co, 326 Mich. 62, 65; 39 NW2d 244 (1949).

In this case, plaintiff relies on Viculin v Dep't of Civil Service, 386 Mich. 375; 192 NW2d 449 (1971), and Farmers State Bank v Dep't of Commerce, 77 Mich. App. 313, 323; 258 NW2d 496 (1977), to argue that the decision made by the board must be reviewed to determine whether it was supported by competent, material, and substantial evidence. In our opinion, plaintiff's reliance on Viculin and Farmers State Bank is misplaced for a number of reasons.

First, we believe that the opinions in Viculin and Farmers State Bank discussed the proper standard to be applied in reviewing an administrative tribunal decision while on appeal, not the standard applicable to an original action for superintending control. Consequently, plaintiff has offered this Court no authority in support of her position and this issue could be considered abandoned on appeal. See Cramer v Metropolitan Savings Ass'n, 136 Mich. App. 387; 357 NW2d 51 (1984).

Second, appeals to this Court often pose the question whether there was competent, material, and substantial evidence on the whole record to support the underlying administrative decision. If we accepted plaintiff's argument that this same question can be posed here, the extraordinary remedy of superintending control would substitute for an appeal in a dispute where an appeal on the merits is not available. See Robertson v Detroit, 131 Mich. App. 594; 345 NW2d 695 (1983).

Finally, use of the standard advocated by plaintiff would slowly enlarge a review that has traditionally been limited to questions of law and would encourage a substitution of the facts by the reviewing court when there is competent evidence to support the findings made by the administrative tribunal.

For all these reasons, we are convinced that the circuit court erred in reviewing the board's findings of fact to determine whether they were supported by competent, material, and substantial evidence. On remand, the circuit court is directed to review the board's decision and determine only whether there is any competent evidence to support the findings made below. If there is any competent evidence on the record that the plaintiff, after a warning, failed to perform her work completely, the circuit court should guard against substituting its judgment of the facts for that which was made by the board.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.