*1 ceiving superintendent report from the petitioner is institution upon then it insane is incumbent appoint a commission “who shall court inquire sanity into facts as to the mentality report person or of such findings providing
their court” as hearing person
for notice and before the period
is committed for an indefinite
distinguished temporary from a commit-
ment observation then we think that petitioner in violation of his held rights proper constitutional notice and
hearing. though
Even confinement person insane under void com illegal, mitment will not be set liberty corpus under a writ of habeas if enlargement dangerous be will people,
himself or to other but he will be legal permit detained to commitment proper proceedings. secured under Winstead, supra. We, Robinson v. there
fore, remand the case the district court with instructions to release the
prisoner peti unless the state affords hearing
tioner to which he is entitled
within reasonable time.
Reversed and remanded.
Alphonse LEWIS, Jr., Plaintiff-Appellee, al.,
CITY OF GRAND RAPIDS et Defendants-Appellants.
No. 15669. Appeals
United States Court Sixth Circuit.
Feb. hospital mentality person report from the staff where person observation, findings court.” is committed for who their inquire sanity shall into as to the fact *2 Michigan Liquor
proval. Under the
Con-
required
approval
Act,
trol
such
was
be-
fore the
Control Commission
would effectuate the transfer. M.S.A.
18.988, Comp.Laws
Mich.
436.-
§
§
Anscer,
308
Roodvoets v.
Mich.
The District held that the product Commission’s action was the racial and other invidious discrimination negro, plaintiff, and that was entitled to, denied, process due of law City’s applica- consideration of his the approval. tion for After the desired such approval refused, and after a sub- sequent resolution of the re- Commission questing Control Commission license, plaintiff to revoke the involved brought action United States Rapids. District Court at His Grand complaint charged rights deprivation of guaranteed by the First and Fourteenth Amendments to the States Con- United stitution, jurisdiction asserted under rights pertinent civil sections Judicial Code. hold that the District
We erred in conclusion that consideration application comply transfer procedures proc of due with traditional Miles, grounds Rapids, Mich., ess, viz., specification Wendell A. Grand for appellants, Garlington, refusal, support presentation William J. of evidence City Dutchess, Miles, Meyers Atty., Mika, grounds, confrontation of such wit Mich., Snow, Rapids, opportunity & on brief. cross-exami Grand nesses with procedures. nation, and like
George Detroit, Crockett, Jr., Mich., W. Alphonse Lewis, Jr., appellee, racial dis If bias or invidious Rapids, Mich., Waugh, Charles M. James crimination motivated actions of Kobza, Muskegon, Mich., on brief. City Rapids, of Grand denial of if CECIL, Before O’SULLIVAN and ED- Judges. approval consequence transfer was the WARDS, Circuit conspiracy deny plaintiff Lewis his rights, civil then such actions must be Judge. O’SULLIVAN, Circuit struck down as a Four denial Appellants, City Rapids, guarantee plain of Grand Mich- teenth Amendment’s igan, Police, equal protection Chief of tiff its William A. Lewis of the law. Johnson, challenge judgment Michigan Liquor of the Glicker Com mission, 6, 1947). (CA United which va- F.2d 96 States Court Our City case, cated an order the Grand review of entire record denying approval however, definite and Commission leaves us with “the firm has of Class C license to that a mistake conviction Lewis, plaintiff-appellee, Alphonse Court find and committed” the District affirmatively ings regard. ordered Chief United States v. to rec- such grant Gypsum Co., ap- ommend 333 U.S. and the United States attorney 525, 92 L.Ed. act Mrs. Ettress’ manager as well as 68 S.Ct. 52(a). given (1948). re- of her bar. He Fed.R.Civ.P. We broad sign powers documents, judgment Court all of the District needed verse the order otherwise exercise full control to the extent that it vacates over denying operation bar, including right affirmatively ap- orders to hire and fire all of its em- transfer and *3 ployees. proval City’s paid does not thereof. The brief Lewis was to 6% Judge’s finding gross year challenge of bar’s for the of his District sales first employment process for the denial of due in the revocation second 10% therefore, contract, We, subsequent do term of the license. guaranteed United Ass’n with annual minimum com- discuss that. McCraw v. a Journeymen Plumbing, etc., pensation App. $2,000.00. fur- of of of The contract & 1965). 6, provided (C.A. ther “the F.2d 705 that Lewis was agent attorney in for his client. fact” history of Much of the troubled as to the of The record is unclear amount Bar, Barnett’s C establish- a Class spent per- in time Mr. Lewis at the bar Rapids, set ment of Grand forth managerial of his Dur- formance duties. Judge. opinion of the extensive ing management the time of his there Rapids, 222 F. Lewis of Grand payment were several in defaults of fed- Supp. (W.D.Mich.1963). The 349-396 taxes, although appears eral and state Judge’s opinion sub- contains the District that Mr. Lewis cured at least of such one jective and factual inferences conclusions defaults with a loan from own his funds. findings. upon which he based his brought One or more of such defaults Chief of Police and six the seven “stop” prevent about so-called orders to members of the Commission operation the continued of the bar. Dur- Rapids of con- Grand were convicted ing period Lewis obtained a chattel spiring invidiously discriminate mortgage equipment bar secure against Lewis, motivated, plaintiff at advances made Mrs. Ettress. Negro. part, was a least in because he August 1960, consequence In as the Plaintiff connection Lewis’ relevant investigation police of a at the Barnett early began Barnett’s Bar with premises, complaint Bar was filed with Lewis, attorney, represented Liquor Control with under Patricia Barnett while she was of the Police Court of Grand during minority. guardianship Her her Rapids persons named therein princi- property at time consisted game.” carrying were on “the numbers pally of her of her interest estate persons Arrests several were made. father, deceased the former licensee of attorney for Mr. Lewis acted as those Bar, Barnett’s a client who also been ultimately charges arrested and all By marriage, of Mr. Patricia Lewis. except withdrawn or dismissed toas one Ettress, and Barnett became Patricia pleaded guilty accused who on October later Patricia Bell. The possession policy unlawful Commission did not consider this then pool Avenue, tickets “at 58-60 Ionia year girl operate qualified old building S.W.”—the where the bar was step bar an initial in Mr. located. young mak- client was the service ing, his May 15, 1960, On which of contract November Patricia manager agreed made him the of Barnett’s Bar. Ettress to sell her license and arrangement approved English This the business to one Dr. Cortez police $18,000.00. May In authorities apparently English agreement required amended the to add purchaser English. to himself as a Dr. Control Commission as a condition April acquired In of 1961 had been Lewis had restoration purchaser’s suspended previous defaults. contract in the build- because interest By contract, plaintiff in which Bar was to was located. acquired and that was from been in business before sellers had their title why requested I stepmother. The con- the Commission Patricia Ettress’ acquired manager purchase and also at the time tract which Lewis have only twenty-three I an interest was the names because was Following making of he wasn’t what sisters. time. Then also manager working contract under which Mr. join refered to as a began buying client, attorney profes- out there because he is get steps approval of there were the needed law. of course sion So plaintiff a transfer of the license to didn’t come near times when he even English. days Dr. at a time. Lewis and the business few me for miscellaneous He also billed legal During 1961 and into came to $2609.50. fees which Ettress expressed at various times her under of these came felt that some I dissatisfaction with Mr. Lewis’ conduct *4 management. him In loans from plan acquire and with his to her license. $6079.87, with amount comes 6% On several occasions she wrote to the in of course. added interest Liquor Commission, withdrawing Control willing I’m more than of which latter her May 10, consent to a transfer. On I no pay him and have back expressing she wrote to Lewis her my him I owe mind that doubt management desire terminate the con- from him. The what borrowed I tract, stating “you are unable to take $17,096.15. grand * * * total of this my care of affairs because of I before mentioned The sale that conflicting interest.” On October you only $18,000. can see As 1961, following years two and one-half problem of with the this leaves me management bar, Lewis’ of the Mrs. obligations, my paying other reported Ettress pay life time as for in a couldn’t I Commission that her bar business was enough possibly earn padlock couldn’t I satisfy then under for failure to job pay them. Federal tax liens and that her license was cation for transfer be withdrawn “because buyer, ner.” Alphonse Lewis, Jr., with fore” then in the hands of the Internal Revenue Service; debts. She asked that the some application was to sell her business to only before he Her letter things that her Dr. Cortez that have requested proceeds, only be named sent out “now as be- English happened pending appli- aas originally attorney pay as the part- since her by him to the Internal Revenue office a situation similar to this of a loan of to ment that Mr. Lewis stead of his release the “I’m considered and Lasing sending you copy your Mr. $800.00 paying some padlock. -X- signed by Ressi to reconsider -X- kind of a more to be gave We had tried tax he was of a me in lieu me to be hearing and agree- paid in- application. his He had however manager has “He been the of the charge money been in because before mentioned Bar and money he had loaned me to avoid my attorney also financier closing thought for sales tax and I many repeatedly I occasions. perhaps the whole business would accounting asked him for a final up be cleared before this situation gave it to me this summer after I long would have be continued for ready
was all committed to sell agreeable as it was not to me. But, goes him. in a nut shell it follows, managers gotten money fees from “He had however from May 21, May 21, 1961, pay degree 1959 to the bar to these taxes to a 6% gross year of income for the first that would have satisfied Mr. Farrell. gross padlocked income for Instead the bar was 10% year. things the second came to Which is how stand at $8,406.78. present paid I course never time. He some obligations kept of the bar and to curtail the All of the fore- activities.” against going, during rest for however, his bill or I his bill occurred say give management. should and he wouldn’t appeared, however, even He money me the any irregularities as I had none to upon live cast the blame for client, on because I had been home sick.” Mrs. Ettress.
On December gambling charges While Ettress the end of the wrote came, applica- continuing. “that the tax difficulties my tion for Appellee transfer of license to Mr. Lewis recites transactions which English Lewis and hereby acquiring eventuated in can- his client’s celled.” fixtures, interest the bar August Tax “In of 1961 sales tax man during defaults were chronic upwards police years state came to three close of Mr. Lewis’ management up, appears day her half and after a con- and it that for such period they agreed personal entire ference if property she turned taxes due over financial control the bar to went un- paid. me, kept money if I prevent- track of Additional circumstances paid came in from long the bar transfer were the pending taxes, they gambling charges. sales would her let It was a policy operate, continue to addition also Control Commission upon my paying complete not to them imme- $500 transfer of a diately *5 paying charges the sales while tax violation remained weekly. outstanding. long The and confused charges against route of the the bar is “Thereupon, was communicated Judge’s set in opinion, out the District to Mr. Farell of the Internal Reve- nue, F.Supp. pages at 353-355. From Mr. Farell had and at that time August, 1960, when some four or five up come demanded that she men were ain raid at arrested the bar money. certain of I amounts premises, 2, 1961, until October some money some time and offered at that charges pending. remained All of those Farell, pay if Mrs. to to Mr. charged represented by Mr. Lewis. that she didn’t Ettress dissipate any sure would be Two of on were dismissed examina- those money. more tion, two more had their cases nolle agreement get firm I could never prossed, plea guilty and one entered a satisfaction, her, my out of to possession gambling to parapher- pay Mr. Farell that so I did not nalia “at 58-60 Ionia Avenue”—the ad- money, particular and Mr. Farell building dress of the where the bar was course, aware, kept was money located. The District found that Then it was accumulated. charge itself, did not involve the bar bar, indicated here he closed the clearly but we are unable to understand before.” how this conclusion was arrived at. Fol- 1961, On November the Internal lowing the above dispositions, agent Revenue bar fixtures at sold the 31, 1961, on Commission October bought auction and in for them investigation concluded its own satisfy paid The did not $50.00. $50.00 gambling charges. report Its concluded the Internal * * * Revenue taxes and the bar that “there is no doubt that there September 21,1961, remained closed from gambling has been operations some April 6, until 1962. Lewis asserts that your knowledge your bar with the bar- acquired purchase he for himself examining tender.” The officer dis- equity equipment his client’s in the bar charges missed the with the observation mortgage. over chattel above Lewis’ glad you’re that he “was [Mrs. Ettress] He testified: going out of the business and under- I * ** you’re “Q. going purchased stand that certain You [Lewis] * * you’ll property *. I’m from the Internal Revenue sure be able [Lewis] settling agreement Service auction sale on the lawsuit Novem- an 13, 1961, it,By ber Dr. that correct? was entered into. English agreed addition “A. Correct. they $18,000 originally agreed upon “Q. price you pay? What did $7,- pay additional would assume and Now, “A. also $50.00. that was agree- This 300 Mrs. debts. Ettress’ original second auction. The auction subject approval ment was $1,400.00 person went and the appendix to transfer of the license. See * * pay couldn’t for it. *. F.Supp. opinion at the District Court “Q. you purchase What did on that auction ? agreement of November equity “A. It was the English, con- drafted and with Dr. equity redemption of Mrs. Ettress nothing There is cluded Lewis’ office. over and above mort- the chattel Eng- Dr. evidence indicate gage which then held on I all lish than Lewis’ client. was otherwise equipment.” bar originally price $18,000 The sale alleges complaint in this case gear- paid It cash. was then the Internal owed, all the Revenue “sold Service client then ed what Lewis’ right, title and interest Patricia Ett- and serv- would owe him advances public plaintiff ress sale aas ices. was after Lewis was added (Lewis).” purchaser We do not find that Lewis rendered statement he totalling slightly has ever announced or considered that more than to his client acquired protect up $17,000. title then was to made This amount was amounting December, or as trustee for his client. In loans at interest about 6% Liq- manager $6,000, Patricia Ettress wrote to the fees as and Lewis’ attorney $11,000. uor Control Commission that she consid- of about the amount application $1,920 ered the for transfer the addition With arrange- English English, and Dr. void. On owed December Ettress to Dr. *6 1961, owing she bal- made a her a sworn statement to ment would still a leave Rapids English. Grand Police There Lieutenant that she ance to Lewis and Dr. go making through would this not with a sale to no that Lewis evidence English, saying, other “I deal had advisor don’t want to Mrs. Ettress manager, simply attorney transfer Mr. Lew- it to them for for than her credit $18,000. May, 1961, price Mr. ing was Lewis’ bills.” is. In The confusion exist- performance these months is set forth in the When she was sued lawyer, Judge’s opinion agreement by F.Supp. her own at 222 this 356-358. When obtained new counsel. Ettress litigation presumably settled was Mrs. Ettress’ recalcitrance was met $7,300 was added March of about 21, 1961, a lawsuit filed on December assuming price by way purchase Rapids, the State Circuit Court at Grand additional of Mrs. Ettress. debts whereby sought specifically Mr. Lewis to agreement enforce the City that his client Among charged had Com- faults to English made with Dr. to which he was failure mission the District party. complaint had become a His asked for not to its reasons detail appointed that he be receiver of approving found as fact him. He applica- Bar. This was refused. not, prior Lewis’ rev- had the Commission tion for specification transfer continued proceedings, undetermined ocation made Safety into 1962. prompted The Committee of the of the reasons which to Lewis Rapids City appear Commission which no formal its It does actions. considering request was for trans- for denial enumeration of the reasons English, fer to formally Lewis and But, Dr. under- provided. no- was whether study against took to not, during lawsuit his of the tified or consideration client, things transferor. On March of the aware transfer was which, case, Safety at the trial of this tion recommendation to a iden- being disap- up tified as the causes of his made of three Committee members proved. He Rapids knew about the tax defaults of the Grand Commission. closing body and the governing of the bar therefor. He The latter is elected Safety testified that city he told the Commit- of the and consists of seven members paid meeting tee that the time, regularly taxes would if he part was who serve approved as a transferee. This condi- once of Police sub- a week. Chief promise tional not was substitute for form mits Control Commission discharge obligation of an (LCC giving assumed when 1800) his recommendation given considered, he was the exclusive financial con- but as to transfers. This Placing controlling. trol necessarily business. the blame not answer; on his Safety client not an practice was neither Commit- been the his was intimation that hearings, his client and tak- formal with the tee ing hold boy taking large friend were testimony procedures. sums and like money enterprise. from the He knew Safety Hearings Committee gambling charges. He about was application extended over consider Lewis’ lawyer persons for all involved. He July January 16, period 1962, to from knew about his own relations with his young client, appli- date his at which latter posi- to whom in a he stood January 16 denied. At cation was high tion of He trust. knew that spoke present hearing, fiduciary relationship ended in his suit English. The matter and Dr. for himself convey require her him the asset Commissioner tabled to allow was then managing upwards which he had lawyer, plaintiff Sevensma, review years. complaints of two He knew her against cli- pending his suit Lewis’ then again, management “on and her about County, of Kent Court ent in the Circuit again” transferring off attitude toward investigation, Through Michigan. him. her license to The Grand of the char- learned Committee things in authorities learned of these litigation hearings acter and issues involved course numerous their client, application. erstwhile the transfer Lewis and between unwilling transferor. and then Members of the testi- lawsuit settlement above-detailed City Attorney fied advised was made March necessary specify them that it was not upon approval of a conditioned applicants denying to fer, reasons a trans- plaintiff English and to Dr. appli- of such embarrassment cants thus avoided. It seems clear Lewis. *7 during Safety that hear- the Committee 17, Safety April 1962, On the Commit- ings standing of the Mr. again up tee present. was took matter. Lewis the acceptable license for transferee of the meeting, At this the Grand deteriorating. was We are Bar Police, A. Chief William John- considering, the discre- of the view that 12, son, presented April a letter dated City in the tion vested in a Commission the United Internal from States licenses, liquor matter of transfers “Stop requesting Revenue that Service ground ample had the against placed Order” be transfer finding unacceptable. for Mr. This was the license to Lewis. signed letter Applications by agent for For- Gordon F. revenue letter, April are for considera- first referred ell.1 An earlier dated licenses “Superin by Liquor letter, . License addressed to the transfer of the held The Police,” Ettress, Bar, DBA Barnett 60 tendent of read: Patricia brought Michigan. S.W., Rapids, atten- “It has been Ave. Grand Ionia Alphonse information, your Patricia Ettress tion of office that “For Attorney Law, Lewis, Jr., at Grand the Federal Government indebted Rapids, Michigan, applied past for the taxes has due Federal by Liquor linquencies, had been written the the Chief considered that the charged operation expressing game the Control Commission Com- of the numbers understanding bar, handling “This has mission's and Lewis’ conduct complex hope affairs, has been a matter which we his client’s lessened his attrac- satisfactorily now clarified. been We as a licensee. tiveness and tax diffi- understand the violations April July 24, Between the The have all been resolved.” culties meetings, investigation by Liq- Safety have recon- Committee’s desire to uor continued; Control Commission apparent ciled this Liquor conflict between the agent charge reported difficulty April 6 Control Commission’s contacting Lewis, and Lewis then indi- tax difficulties been statement that hurry cated he that was not in a to have Internal settled Revenue letter investigation July 24, concluded. On requesting “Stop for failure Order” 1962, hearing was held before the Safe- emphasized by pay taxes is federal ty Lewis, English, Committee Dr. indicative of bad faith District Ettress, attorney pres- and her then delay Safety ap- in the Committee’s agreeable ent. Mrs. Ettress was then contends, proving the transfer. Lewis English. ato transfer to Lewis and Dr. Judge agrees, that the dispute There is toas what said and Chief solicited Internal of Police meeting, seemingly done at the but all thwarting a means Revenue letter as present opportunity express had an soliciting Lewis. The denial of Chief’s meeting themselves. This concludedwith attempt explain and his its the letter a carried motion that the matter ta- origin sustaining cut off bled three weeks. At the trial of objection.2 charge of solici- case, city Lewis and the officials ex- plain- principal support finds tation its pressed differing understandings of the hearsay he had import tiff statement that tabling the matter. Lewis hearing In all heard that such was the case. stated that assumed a further would events, be held in three weeks. impropriety no we find Committee considered that the members presentation letter, es- Chief’s hearing was concluded and the ta- pecially in of the chronic tax delin- view bling merely purpose for the of al- manage- quencies of the under Lewis’ bar lowing the Committee its to consider de- not, fac- ment. Whether solicited cision, and to obtain some further infor- is not tual correctness of the Farell letter mation from the Control Commis- questioned, of federal viz.: that notices sion. recorded; “Stop tax liens placed had been Order” the transfer events, In regular all at the next meet- Commission; ing with the Safety Committee, July 31, the Internal Revenue Service the matter was taken from table desired vote, similar action unanimous and denial Rapids. The record does indicate transfer present recommended. Lewis was not developing given Chief Johnson was a view nor notice that such meet- that Lewis was not a application. desirable licensee was to consider his *8 for this bar. In given addition to the tax acting waiting de- reason without your of Notices Register Lien have been with filed the file the of transfer matter the Deeds, County, of Michi- Kent license Mr. the to Lewis.” gan. my 2. “Mr. Forell came into with office ‘Stop placed “A Order’ been on has the Captain Szumski, explained dif- the tax Michigan transfer of this license with the they had es- ficulties tablishment, had with this Liquor asking Control Commission placed me he informed cooperation holding up their trans- Michigan ‘Stop’ Liquor order with the obligation fer until the Government’s Commission, Control quite and to be seemed ” satisfied. (Here concerned that an possible, objection ground “If at all this office would was sustained on the part hearsay) like a similar order be made a hearings process. The with due several the three weeks was concern plated contem- resolution, final held members antecedent to the vacations of committee might prevent early the 16 and 24 and on November action. On same October regular meeting City day, 13, 7 and and confu- at the the created excitement Commission, Safety by the sion. no time Committee’s rec- There is doubt that unanimously approved opposition possibly ommendation was dislike of by present. developed the six The Lewis and there was evi- members then had Safety expressive an inten- Chairman of the Committee of remarks dence Commission, reporting to the convened tion to his efforts to take over resist gave 13, by Whole, as Bar. On as Committee of the Barnett’s November City 0, Com- for denial of the transfer the unanimous vote of the reasons situation, capacity requested re- tax manager, Lewis’ dual “as mission license be the placed and the same in es- advisor and counselor” voked “unless Michigan “poor operation” of the bar under crow with the reasons, however, 20, management. prior These Commission to November having part mo- made a of the formal 1962.”3 The license not were not 20, adopted by placed prior tion which the Commission in escrow to November Commission, date, requested Committee’s recommendation. on that license. unconditional revocation of the Bar deterio- affairs The Mayor Rapids a dis- cast Grand following the denial of the rated further senting request. Except for vote to such Ettress, Lewis. Mrs. this, City previous by all Com- actions Flint, Michigan. licensee, had moved to involving license mission Bar Barnett 1962, had, 20, an March executed She by Novem- had been unanimous vote. On assignment of her to Lewis complaint 10,1962, case ber English. September she On Dr. voluntary bankruptcy. petition in at bar was started. filed a Bar was The license the Barnett setting which out the reasons Before bankrupt principal estate. asset give prompt decision, we our should arose contest between A summary rele- broad of the case. The ownership. bankruptcy to its trustee history vant and of the Barnett troubled assignee of the Lewis contended that began May, 1959, Bar when Lewis bankrupt he was the owner. The referee management client, for his took over its the owner. the trustee was held bankruptcy in in his client’s ended City Thereafter, on October September, 1962, at a when time Rapids initiated of Grand Commission part owner claims to have become the steps on November culminated premises, upon the bar foreclosure requesting the Mich- in a resolution acquired fixtures, ob- the bar’s and had re- igan Control Commission assignment tained Al- its license. Barnett Bar. license of voke the though by broad attrib- inference Lewis Judge’s “dipping utes Because the District vacation some of trouble into friend, request boy is not the till” of such for revocation here his client and her give proved it is involved we need detailed recital claimed nor that ac- neither police municipal tion relevant events. Under advice or other offi- Attorney, Michigan anything and because the cers of to do requires statute, 18.988, inability discharge M.S.A. § request pre- fiduciary responsibilities for revocation be as to main- the LCC so hearing,” proper “due notice and tain his client’s asset ceded as a solvent up going attempted enterprise. only pro- set solution hearing comply posed hold a that would him. sale of the business *9 location, Michigan practice, bankruptcy 3. where an under- or owner. trus- Under interrupted lying agreeable escrow, or tee business has been to such but may suspended, be held “in its license not. awaiting to a new its transfer escrow”
285
which is
then to the reasons
was not
licensee and could
We come
become
only
pro-
upon approval
prompt
first
that in the
of the transfer
us to hold
prior
ceedings
to him the
denial of the
Ettress license. Section 17
Michigan
Act,
process
Liquor
the due
clause
Control
to Lewis
18.988, requires
M.
re-
S.A.
did not
condition
§
United States Constitution
quire
license,
applica-
to issuance of a
to afford
that the
approved by
hearing,
plaintiff
trial-type
tion therefor
with
“shall be
legislative body.” Application
specification
local
for find-
formal
ing
reasons
unacceptable,
become licensee
transfer must have
with confronta-
Anscer,
taking
approval.
witnesses,
like
Roodvoets v.
308
with the
tion
360,
364,
testimony
363,
recording
Mich.
ond,
plaintiff
not in
Lewis was
rela-
accept
rely
not
on Hanson v. Romeo
equal pro- Village Council,
tion to
denied the
612, 615,
the transfer
Mich.
64
339
guaranteed
570,
which,
N. W.2d
him
571
tection of the
relevant to the
law
discretionary
legislative
action of a local
Amendment.
Fourteenth
body,
though
said
exercised in an
“[e]ven
arbitrary
capricious manner,
I. Due
Process.
we do
only
it.”
not review We hold
that neither
Dealing with the law of Michi
the Fifth nor Fourteenth Amendment
gan,
always
business has
to the United States Constitution re
recognized
possessing
a character
quired
Rapids City
that the
Com
vesting
public
authorities a broad dis
hearing
process”
mission hold full “due
cretion
regulation
in the control and
plaintiff
request
to consider
Stuart,
it. Sherlock
193,
v.
96 Mich.
55
to him of
the transfer
a license then own
845,
N.W.
21
(1895);
L.R.A. 580
Johnson
by another.
ed
Liquor
v.
Commission,
Control
266 Mich.
682, 254 N.W.
(1934);
557
Scott v. Ar
Michigan legislature recognized
Township Bd.,
cada
170,
268 Mich.
255
a difference between issuance
a new
(1934); McCarthy
N.W. 752
v. Thomas
existing
license and revocation of
Township Bd.,
293,
324 Mich.
36 N.W.2d
Act,
one.
17 of the
M.S.A.
While Section
(1949) ; People
923
Wheeler,
v.
185 Mich.
originally
up-
provided
18.988,
§
164, 171,
(1915);
was conducted for the exercise liquor license, process in of a receive a police discretion of commissioners “ * * cluding actor, judex, reus, refusing petition- a further license to the regular allegations, opportunity to an only inescapable er.” The rule of Crow- according ley swer, set- hearing, some is that of a in it- trial the denial receiving expectation applicants un- Instructions for a license ap- officially large you carry notified letter are block til legend money proval.” “Do not invest or com- yourself binding agreement by any mit
287
judicial proceedings.”
unacceptable
him
transferee —the
tied course
Workers,
closing
delinquencies
Cafeteria and Restaurant
etc.
tax
and the
gen
McElroy,
886, 895,
history
gambling
S.Ct.
367 U.S.
81
bar —the
—a
(1961).
erally poor
manage
operation
L.Ed.2d
While
under his
process
client,
hold
we
that such kind
due
ment —and his
with
relations
his
precede
against
highlighted
did not have
her
to
the denial of the
his lawsuit
Lewis,
to
the evidence makes —were
to him and to
Corn-
known
the
given repeated hearings
Although
that
clear
he was
set in a formal
mission.
not
opportunity
argue
present
charge,
they
subject
with
to
and
his
much
were
the
position.
things
own
which made
discussion.5
Safety
excerpts
concerning
5. These
from the
Commit-
Commissioner Barto testified
give
meetings:
Safety
tee
members
of what went
the
idea
involved
Committee
recognized
repeat-
on.
“Lewis was
and heard
edly and allowed to
with
make statements
Commissioner Jamo described Lewis’
position
any
reference to his
on
all
and
get
conduct:
never
to
“We
seemed
brought up.”
matters
that were
always
meat. We
went round and round.
figured today you
Vandenberg,
talking
You were there and we
Commissioner
going
bring
your
testimony
up
July
meeting
Safety
are
the
of tlie
get
and we will
nev-
resolved. You
Committee and of
fact
the
that
point
given,
used, opportunity
speak,
er seemed to touch on the
we were
was
and
talking about.”
said:
“Mr. Lewis had
docu-
voluminous
ments with him. He referred to these
Commissioner Lamberts testified to dis-
frequently
I
think Mr.
documents
and
cussions,
presence,
in Lewis’
at the Safe-
long
present
ty
Lewis had a
time in
hearings
Committee
and which ex-
position.”
hibited Lewis’ attitude
toward his own
responsibilities:
“On some
he
occasions
Commissioner Sevensma
testified
say
would
that he
no
was not —he had
talking
meetings
Lewis between
responsibility for the fact
that
the bar
you
Safety
“I had asked
Committee'.
losing money,
that
was
the fact
the tax-
January
[Lewis]
time after
some
gambling
paid,
were
es
the fact
that
* * *
meeting
said,
X
16th
‘This
operation
going
been
had
that bar.
many
very
and
involved matter
has
things
responsibility
He had
no
complications
you,
and 1 would advise
wrong.”
that went
you
Lewis,
should sit down
“Q. And was there discussion then
Anglo-Saxon
plain
words an ex-
write
among the Committee members with and
chronology
had
act
happened
detailed
what
presence
in the
of Mr. Lewis with ref-
case, beginning
at
be-
responsbilities
erence
what his
in the
ginning
right up through
the time
bar were and had been?
was
when the
Committee
consider-
“A. Yes.
him.
We discussed
with
ing
you
However,
[Lewis]
matter.’
taxes,
think,
I
at
talked about
We
chose not
so.”
to do
every meeting in which he
was
at-
testimony
Commissioner
Sevensma’s
acquired
per-
He said
tendance.
he
lawsuit
was
that Lewis’
with
client
property through
sonal
tax
sale for
January 16,
disclosed at the
meet-
* * *. So
said
$50.00
he
he owned
ing
adjournment
and that
was had to al-
personal property.
personal
agreed
investigation
case,
low
* »
property
paid
had
taxes
not been
Lewis. Sevensma testified to what
opened
since
bar
in ’59. The
examining
he found from
the Circuit
responsi-
sales taxes he said were her
file,
Court
bility and the income taxes were her re-
January
“Mr. Lewis indicated on
sponsibility
*. We discussed that
1962, that
was then
he
manager
he
and he
he
declared
manager
bar;
sometime the
of this
* * *
responsibility
had no
to see that
management agreement
he had a
paid.
of the taxes were
Patricia Ettress
that he was
also
attorney.
gam-
“Q.
With reference to
her
bling,
discussion,
any,
what
if
was there
examining
“So in
Court rec-
Circuit
with reference to it?
ord,
particularly
I was
interested in see-
allegations
“A. Lewis said that
one
excuses
made in
what
ref-
gave
holding up
ap-
supposed-
that the Chief
I
erence what deemed to be a
proval
ly
had,
of his license was
that there was
he
conflict of interest
where
pending
gambling.”
manager
violation
relative to
one hand he
criminatory motive,
plea
guilty
Lewis contended that a
he would be without
possession
gambling
remedy
equipment
If he
Federal Court.
motivation,
proof
Ionia
indeed
“58-60
was not
of such
then
Ave.”
a victim
Bar,
equal protection
building
car-
was denied the
located
*12
rying
address,
of,
guaranteed
him
Four-
was the
or
to
the
site
the law
in,
enterprise.
involved
“numbers”
the
Amendment.
teenth
hearing
Except
any
that,
for
at
neither
rely
Judge and
on
The District
Lewis
any
Safety Committee,
the
of
before
at
Michigan Liq
in
v.
our decision
Glicker
hearings
the
or
revocation
at
the trial
Commission,
96
160 F.2d
uor Control
of
case at
did
sub-
the
bar
Lewis make
holding
6, 1947)
it
that
(CA
and read
underlying
stantial contest of the
truth
Safety
Com
or the
the
of the events
and which
detailed herein
dress,
required to hold
full
was
mittee
prompted
disapproval
the Commission’s
ap
adversary
hearing
denying
before
him
of
transferee. Whatever
ex-
proval
Glicker
of a
to Lewis.
planations he
at the
had al-
offered
trial
to do so.
so hold and we decline
did not
ready
been made to the
Commit-
Michigan
that
there announced
the
he
He has
what evidence
We
tee.
not
told
would,
might
not,
un
offered or devel-
have
could
Control Commission
hearing
oped,
type
if a
formal
of
more
liquor
guise
regulating
busi
of
the
der
had been held.
deny
equal protection
ness,
its citizens
of
appeal
on
The
came
us
the law.
case
foregoing
say
All of the
not
that
granting a
order
of
as a
was
from District Court
if denial
transferee
product
complaint
dis-
the
of racial bias or other
inter
which
to dismiss a
motion
attorney,
Complaint
my
hand he
on the other
was the
Bill of
examination of this
suing
action,
only
in
and then
he was
taxes
Court
not
there
income
that
withholding
client and
licensee.
the
also
of Patricia Ettress but
Paragraph
paid.
“And
I
from
so
ascertained
that
not been
taxes
had
Eng-
Complaint
Bill
Dr.
2 of the
of
that
“And then
further
examination
the
No-
had
into a
in
lish
entered
contract
manager
that Mr. Lewis was the
showed
for
of
Patricia Ettress
vember
business;
he
advanced
that
had
of this
purchase
that
the
of this
business
pay
money
apparently
of
certain sums
May
on,
Mr. Lewis
later
acquired
obligations of the business.
the debts and
con-
interest
in this
one-half
reading those
which
And so after
items
tract.
Paragraph
appeared in
and then
**
*
the de-
“I further noticed
that
reading Paragraph
de-
that
the
also
Ettress,
requested
fendant, Patricia
say
him, might
was
I
fendant
indebted
to with-
Control Commission
the
my suspicion
the correctness
as to
that
the
that
this transfer
for
reason
hold
of this matter were con-
and the ethics
greater than
amount
her debts were
the
January
firmed what he had told us
going
was
that she
business and the transfer
receive
appeared in
Bill of
and what
16th
license,
he,
Complaint,
to me that
seemed
January
Mr.
recall
16th
and I
that
is,
Lewis,
Mr.
untenable
that
stood
an
that,
mone-
was asked about
what
position.”
involved,
tary
and he
consideration was
$18,000.00,
present
price
English,
but
that
Dr.
with Lewis
stated
that Patricia Ettress was
meeting
him
mat-
indebted to
the next to
ter,
last
on the
Vandenberg
attorneys
items,
oth-
“I
Mr.
fees and
said
remember
on various
Ettress,
saying
woman,
expenses, although I do
recall
that
this Mrs.
this
her
er
losing
presented
legacy
inter-
itemized
he at that time
an
that
legacy.
debts,
anyway
protecting
listing
That was
but
her
of these
ested
one
things
that 1 remember
made that
amount
statement was
**
Vandenberg
$18,000.00,
*.
seemed
to him was
her debt
only thing
other,
very perturbed.
and im-
would cancel the
the one
mediately
worry
Et-
seemed to
him was Patricia
I wondered about that.
unpaid
losing
legacy.”
re-
matter
He also
noticed the
tress
her
“I also
saying
5;
Paragraph
taxes,
membered Chief Johnson
as related
right
temper-
paid, and
that he “didn’t have the
had not been
Federal Taxes
subsequent
run a
ament
bar.”
I learned
I believe that
charged
Hornsby Allen,
alia
Commission’s action
case
326 F.2d
existing liquor license,
(CA
suspending
5, 1964)
an
was decided after the
opinion
District Court’s
in this case was
“was intentional and deliberate dis-
upon by appellee
It
announced.
is relied
against
crimination
her on account of
process
for his
contention
full due
political reasons and was done delib-
had to be afforded before
denial
treating
erately
purpose
This,
case,
transfer.
like our Glicker
appellant
in a
manner
different
involved the
review
dismissal on
than
other owner
Class C
complaint
charged
motion of a
un
liquor license, and was in
violation
application
constitutional
denial
rights
her
under
Fourteenth
charged
license.
that such
Amendment
to the United States
denial was “without reason therefor” and
1979 of
Constitution
Section
*13
“arbitrary, unreasonable, unjust,
ca
Revised
the United
Statutes
pricious
discriminatory.”
Thus
[and]
States,
(Em-
Title
43.”
8 U.S.C.A. §
the matter was before
Fifth
the
Circuit
phasis supplied.)
foregoing allegations
with the
admitted.
allegations
accepted
be
The above
The Court said that “the trial
must
court
true on
and
held
as
motion to dismiss
we
entertain
the
and
suit
determine the
only that
the described conduct amount-
allegations.”
truth
cause
protection
equal
ed
denial of
case, however,
remanded
trial. This
say:
law. We took occasion to
comes to us after a full and extensive
[selling
liquor]
“The
business
be-
trial
in which the reasons for denial
may
admittedly
one which
exposed.
recognize
fully
were
We
some
safety
dangerous
health,
public
being
Hornsby
observations
case as
*
**
scope
and
morals
at odds with our
conclusion
to that
legislature’s
regulate
power to
it is
extent we decline
follow
it.
much broader than in the case of its
regulation
ordinary
,of an
lawful
Equal
II. Denial
Protection.
business essential
the conduct of
question
We
then
come
human affairs.”
plaintiff
whether
as matter of fact
scope
holding
and the
of our
is made
Lewis was denied a transfer because he
by
that,
clear
our conclusion
negro
awas
or was otherwise discrim
considering
“In
the motion to dis-
against.
inated
It was his burden to
by
allega-
miss we are controlled
prove
charges
regard.
in this
complaint.
specifi-
tions of the
cally
Judge’s
alleges
opinion
District
must be
Commission
read
‘unlawfully, fraudulently,
acted
finding
wil-
a factual
that Lewis
out
made
fully
illegally’
and ‘intentional-
opinion
such a case. We
are
ly
deliberately
discriminated
findings
clearly
such
erroneous.
against’ her, and that
action
its
‘was
52(a).
hold, applying
Fed.R.Civ.P.
We so
wilful, deliberate and intended sole-
the rule of United States v. United
**
ly
political purpose,’
for a
Gypsum Co.,
364, 395,
States
333 U.S.
the revocation of her
(1947)
68 S.Ct.
all who were associated with were
appear
represent
4)
made to
all that
“Chief Johnson was determined
and li
keep
only negro-owned
undesirable
taverns
Class C
liquor establishments,
liquor
censed
(222
and es
establishment closed.”
pecially,
varying
F.Supp. 359)
inflections of
overtone,
negro
(222
F.
bar.’’
“Chief Johnson wanted to close
382)
Supp.
Bar,
negro-owned
lone
important
“It
Rap-
in mind
bear
Class C
license Grand
population
negro
(222 F.Supp.
insofar as
375)
ids.”
by
Board.
Civil Service
Police
sustained
As
of the Grand
Chief
negro officer,
approved
shown that
Department,
It was
Johnson
Madison, was, upon
recommendation
after
reopening
Bar in 1959
of Barnett’s
Johnson, promoted
rank
approval
previous
Chief
a
signed by
bad record.
Sergeant, bypassing
of-
white
upon
several
condition of
Johnson
Chief
seniority.
greater
Negro,
Lewis,
man-
ficers with
take over its
agement.
fair
inference that
is a
6)
“The court’s discussion
of Mr. Lewis’
estimate
Chief Johnson’s
charges
gambling
re-
not be
need
manager
qualifications as a bar
deterio-
city
peated
The action
here.
there-
mounted
as the
troubles
rated
bar’s
however,
regard,
con-
police in this
Lamberts,
of Mrs.
after. As in the case
discriminatory
stituted
enforce-
charge
Judge supports
his
the District
against
gambling
laws
ment
against
reference
malice
the Chief
(222
liquor establishment.”
licensed
testi-
“He
witness stand demeanor.
382)
F.Supp.
quick-
great difficulty; he was
fied with
ly exasperated,
investigation
gambling
at Bar-
clipped
off his an-
product
nett’s Bar was the
of the volun-
questions were
When extensive
swers.
tary
negro
Madison,
action
officer
grew
Lewis,
Chief
red-
asked
previous knowledge
request
without
orof
tightlipped;
the blood vessels
fhced and
Discovering
police department.
from the
bulged
F.Supp.
out.”
in his head
suspecting
gambling,
reported
or
it;
he
may
The Chief
have remembered Lewis
customary
this was followed
calling
him a liar at one of the
police
bringing
practice of
in an officer
meetings.
Committee
Lewis'’cross-exam-
city,
from another
and the officer select-
pages
ination of the Chief covers 133
negro.
days
ed was a
surveillance,
After several
transcript;
charg-
it contains unfounded
reported
the “num-
misconduct,
es
supported
official
un-
well as
going
bers racket”
at Barnett’s
upon
reflections
the Chief’s
complaint
Bar and swore to a
named
personal
Perhaps
life.
the Ghief should
carrying
individuals who were
on such an
emotions,
have better controlled his
but
enterprise.
join the District
We cannot
very
responses
natural
under attack
Judge’s
trial characterization
this as
conspiracy, malice,
do not
him of
convict
intensity
“an
of surveillance of this es-
or racial bias.
charges
tablishment.”
Some of these
5)
negro
“Dred Scott Madison [a
year,
pended
appearing
for over a
police
claimed that
officer]
Chief
defendants;
they
for all
were concluded
*16
practiced discrimination,
Johnson
by plea
guilty by
the accused
one of
and cited his own demotion as evi-
possession
gambling paraphernalia
(222
dence of this discrimination.”
ad-
at
Ionia
This is the
“58-60
Ave.”
370)
Supp.
F.
building
dress of the
where the bar
located,
papers
and
in official
This
was used
officer
be-
testified: “I couldn’t
The
as the address of Barnett’s Bar.
lieve that he
against
was biased
[Chief Johnson]
Judge
that the bar was
District
infers
me himself.” He did not cite his
involved,
plea
guilty
does not
own demotion
but the
as evidence of racial dis-
it.
Control Commis-
exclude
crimination
Chief Johnson. He did
report
negro
constantly
“Items
state
sion’s file contains
were
officers
during
efficiency
from 58-60 Ionia
the bottom of
on
confiscated
Ave
the list”
“at
ratings. However,
8-5-60.” The re-
the Numbers Raid of
Chief Johnson did not
slips
efficiency ratings
port
and
mentions torn numbers
control the
and in all
adding
tapes
questioned
machine
events the official and not
—indicia
ratings
main
efficiency
“numbers racket” —found
records of
ranked
.
Bar, in its office waste-
21 floor of Barnett’s
officer Madison himself as number
basket,
rear
trash barrel at the
out of
far from the bottom of the
gave
other items
of Barnett’s. Numerous
list. The Chief
the reason
reported
validity
paraphernalia
as
were
relevant
demotion of Madison and its
was
happened,
popular
Ionia,
specifica-
were
what
if a
vote
seized
58-60
without
they
question
Bar
on the
“Shall Barnett’s
were Barnett’s
held
tion
to whether
be
vote would
Bar.
revoked?” the
[familiar
“Five Green Sheets
(222
ending overwhelmingly
game]
for the week
the affirmative.
the numbers
report-
383).
F.Supp.
other
with
material
8-4-60”
taken from
office located in
ed
found to be the
Mrs. Lamberts was
Ionia,
58-60
under
“basement of
S.W.
offender,
chief
members
other
not understand
Barnett Bar.” We do
succumbing
persua-
her
from
how the bar was excluded
involve-
Judge concluded that:
sion. The District
Judge’s impression
ment.
1)
rise to Chair-
“Her [Lamberts’]
may have arisen
of “undue surveillance”
Safety
man of the
Committee
like
from lack of
surveillance
evidence
Commission,
City
President of the
was,
any
or raid of
other bar. There
voting
she
blocwhich
the evident
any
however,
bar
no
other
evidence
Commission,
acquired in
had
gave
opera-
suspected
base of
had been
as a
power,
her
which
substantial
Both
tions for the “numbers racket”.
arbitrarily, capriciously,
she wielded
Madison
the Chief and officer
told
unreasonably
this instant
gam-
gambling
raids
establishments —
381)
(222 F.Supp.
case.”
white
rooms—and the arrest
their
Mrs. Lamberts
not Chairman of
patrons.
Committee at the
time
We conclude consideration of racial
here
If
events
involved.
there is
by mentioning
original
bias
that the
com-
support for the assertion that
Lam-
Mrs.
plaint filed in
this cause on November
acquired” voting
berts “had
which
block
no
made
such claim.
**
*
“gave
power,
her
which she
brought
into the
case
amended com-
arbitrarily,”
etc.,
wielded
it must be
plaint
January 2,
filed on
following:
found in the
**
*
“Q.
isn’t it true that
B. Other discrimination.
there is a faction
of which
Judge
The District
inferred
malice
part
Mrs.
con-
Lambert is a
conspiracy from other conduct which he
trols
four
?
at least
votes
specifically
does not
relate to racial bias.
Well,
so,
“A.
sometimes I think
repetitive vigor
With
he indicts the en-
sometimes don’t.”
I
tire
Rapids,
Commission of Grand
quoting
foregoing (222
In
from
F.
exception
Mayor.7
with the
Al-
Supp. 371)
the District
assumed
though the evidence does not disclose
question
that the
whether
Lam
content,
media, radio,
their
the news
TV
faction,
berts controlled the
not whether
newspapers
alleged
are
to have car-
part
she was a
a faction. The last
extensively
ried stories so
“and it was the
part
answer,
“sometimes I don’t” is
purpose of Chief Johnson and Commis-
omitted. The same examination went on
cause this result— n
sioner
Lamberts
inquire
whether the Commissioners
synonymous
Bar
became
*17
from Mrs. Lamberts’ ward and another
liquor
with all that
is undesirable
es-
always
ward did
vote
the same
not
tablishments,
negro-
especially
in a
say
was,
side. The answer
“I wouldn’t
owned-operated liquor
establishment.
support
so.” We find without
the Dis
Alphonse
Barnett’s Bar and
aas
Judge’s
trict
further inference that the
consequence
unpopular
are
com-
City Commission “was under her [Mrs.
munity.” (Emphasis supplied.)
(222 F.
dominating control insofar as
Lamberts’]
Supp. 383) Without relevant record evi-
this transaction was concerned.”
dence,
probe
com-,
we are unable to
munity
Rapids.
2)
mind of Grand
Dis-
“The court is also
of one
aware
Judge hypothesizes
trict
of
that because
time
when Commissioner
Mayor
present
7. The
was not
of
at which the
Commission
meetings
of the
Committee
considered and voted on.
different,
judgment have
would
her
his
Lamberts chose to demonstrate
say yes,
by expostulating
“I
answered
would
Sevensma
omniscient attitude
perhaps
different
question
would have been
‘was not
that a certain
”
* *
might
(222 F.Supp.
different.”
worthy
*.
have been
of answer.’
375)
We find other factual
inferences
quot-
question
provoked
which,
view,
which
are
our
during
It came
evidentiary support.
out.
without
ed answer
not set
substantial
forego, however,
of
plaintiff Lewis’ cross-examination
We
further extension
words,
subject.
“In other
questioned
Mrs. Lamberts.
It was
All who
say any-
you
conspira-
license don’t
Lewis’
if
want a
conduct were
accused
right?”
thing
police,
investigator
is that
about
tors.
bad
An
for the LCC who
cooperation
was dissatisfied with Lewis’
3)
Lamberts]
“When she [Mrs.
* *
was included. “Mr. Arens
investi-
[LCC
phoned
she told
the LCC
gator
knew, understood,
for the State]
grand
going
be a
them there was
jury
participated
in Chief
Johnson’s
investigation
this transac-
of
program
Commissioner Lamberts’
lay
of de-
381)
F.Supp.
(222
tion.”
(222
F.Supp. 362) All
denial.”
A memorandum in the
Control
of the condemned
Commissioners
records,
unidentified as to
responsible, reputable citizens,
were
elect-
authorship, referred to a call from Mrs.
people
ed and
Rapids.
re-elected
of Grand
(this
October,
long
Lamberts
inwas
Lamberts,
most seri-
transfer)
after denial of the
wherein she
ously accused, had taken
the trouble
allegedly
county prose-
stated
“that
negro
Cowles,
consult
awith Dr.
mem-
asking
thinking
cutor is
about
for a
city’s
ber of the
Human Relations Com-
grand jury investigation
The mittee, upon
subject
ap-
of Mr. Lewis’
prosecuting attorney testified that
he
plication
Development of
for transfer.
going
not Mrs.
told
he
Lamberts that was
subject, however,
was foreclosed
grand
investigate
jury
to call a
hearsay.
its exclusion as
Commission,
but said that
of
We
that Mr. Lewis’ record
he had
believe
discussed with the Chief of Police
management
possibility
petitioning
grand
Bar and his
the
jury
for a
handling
investigate
was such
of his client’s affairs
“to
all of Barnett’s Bar
affairs,
that it
said
cannot be
that denial
not Mr.
or his
connection
arbitrary, capricious
so,
transfer
criminatory.
or dis-
with it.” He
did
never
however. Mrs.
Sevensma,
Commissioner
Lamberts testified
she had heard
graduate
Michigan
University
talk from
Chief Johnson.
practicing lawyer
upwards
and a
4) “When
Sevensma
Commissioner
twenty years,
pressed by
when
on cross-examination was informed
why
handling
questioned
tell
Lewis’
he
gambling
alleged
facts
affairs,
“there
client’s
answered
cases, he
if he had known
stated that
**
definitely
was
you
a conflict
interest
facts,
judgment
these
about
manager, you
were the
would
case
have been different.”
lawyer,
you
you
creditor,
sued
were the
F.Supp. 373)
(222
your own
and the licensee.”
client
did
so tes-
Commissioner Sevensma
Vandenberg,
tify.
questions
John
Commissioner
Mr. Lewis’
contained
College
Rap-
graduate
hypothesis
at Grand
con-
Calvin
of facts
professor
ids
of economics
and now a
tended would
to establish that
have failed
graduate
there,
gambling
M.A. and
Bar.
Ph.D
in Barnett’s
there
Uni-
facts,
part
at the
time teacher
now a
if he
such to be the
*18
Asked
knew
neglected
failed,
refused and
Service
is ac-
ice has
8. The Internal Revenue
request
‘stop’
alleges
complaint
filed
remove
a so-called
which
cused in Lewis’
“
*
* *
Michigan
[by
Control Com-
despite
sale
said
which
fixtures
mission.”
to the bar
Lewis obtained title
$50,00]
Internal Revenue Serv-
said
versity Michigan,
this,
was elected in
“In addition to
we have other
Safety
a member of the
was
Com-
matters
such as the infraction of
law;
mittee which recommended denial of
we have
recommenda-
stated,
He
Police;
transfer.
tion of the Chief of
we have
paid.
the fact
that
not
taxes were
bias
“I had no
toward Mr. Lewis and
together
only
All these
con-
could
anyone.
I had no bias toward
This
vince
me that this would not be
my
against
philo-
personal
own
City
the welfare of the
to make this
sophical
religious commitments;
transfer.
against my
this was
commitment to
my opinion
Lewis,
“It
Mr.
City
was
which made when
I
I was
roles,
many
because
these
the law
sworn in as a
Commissioner to
infractions,
protect
rights
and the recommendation
of all
citizens
* *
Chief,
pay
Community
taxes
failure
being
control,
repeatedly
in
he
as
given
He testified that Mr. Lewis was
power
said
he
to us
of at-
ample
employed
opportunity
pre-
torney,
hire, fire,
could
he
he ran
position
sent his
Committee.
having
poor
the bar and
such a
done
prompted
which
He disclosed
reasons
job,
background
of all these
deny
as
vote to
the transfer
follows:
roles, I,
good conscience,
could
before me
“I was astonished
have
vote
transfer.”
who, one,
legal
a man
first was
coun-
Vandenberg
Mr.
not sure
was
Bell,9
licensee,
two,
sel to the
reasoning
explicitly
how much of his
was
manager
Bar,
who
then became
although
addressed to
re-
acquired
which she had
virtue of
giving
called
some of them to him.10
* *
of her father
*.
death
questioned
policy
public
He
an-
Three,
on the same
who was
court
of all
nouncement
of such reasons. He
Four,
trying
case.
who
to ac-
said,
quire
pay-
no
this
there would be
figure.
public
“Mr. Lewis
ais
He
ment for Mrs.
con-
Bell.
I cannot
attorney
is an
and as
I think
person
ceive of a situation where one
perfect right
go
he has a
about
many
can be in so
roles
are
lawyer.
I
business
think
obviously in conflict.
that Mr. Lewis would have been
damaged
great
expounded
we
management
"For someone to be in
particular
request,
detail
this
position
period
approxi-
and in the
giving
why
he did not
reasons
mately 18 months
to see
asset
given
transfer his license.
have
I
alleged
which is
been worth
have
by request
those
courtroom.
$18,000
$25,000
from
turn out to
given
any
publicly
I have never
these
nothing,
suspect'
be worth
me to
leads
place.”
other
person
managing
who is
incompetent,
dishonest,
that bar
finding
or
To sustain a
that denial
or he is more
application
interested
himself
product
was the
than he is in his
This
client.
discriminatory
racial
bias
mo-
other
why
chief reason
I could not
require
tive would
to leave
us
unreversed
transferring
particular
see
holding
li-
Vanden-
Commissioner
berg’s
cense to Mr. Lewis.
perjurious
above recital was
but
9.
Bnrto,
Patricia Ettress had become Mrs. Bell
so testified
Commissioners
during
Jamo,
Vandenberg.
the time involved.
Sevensma and
There
attempt
was no
refute
this testi
question,
though,
10.
mony except
There can be little
for the District Court’s ob
these matters were before the
servation that
all the
because
Commis
July 31, 1962,
agreed,
testimony
when the
sioners
all of their
application
questionable.
F.Supp.
was denied.
It was
*19
296
transfer;
applicati
mo-
vicious
onfor
was not de-
mask11
hide his real and
federally
granted
prived
can
of
consti-
so. Neither
cannot do
any
tives. We
right by
in which
tutional
the manner
for
enormous
discern
basis
we
application
ap-
immorality
such
was considered and
attributed
malfeasance
by
proval
the District
withheld.
the other Commissioners
pro-
others,
varying
of
Court. These
was,
2. Plaintiff Lewis
under Glicker
or means of livelihood12
fessions
authorities,
and other
entitled
standing
equally responsible
there
of
guaranteed
“equal protection of the law”
backgrounds
nothing
fore-
in their
by the Fourteenth Amendment.
capacity
the vicious con-
cast their
for
application
3.
If
of
denial
they
duct of
were convicted.
product
racial bias
was the
of
significant
plaintiff
Lewis
indeed that
motive,
discriminatory
or other
such
high points
deny
does not
the factual
deprivation
denial would
a
of the
management
of
Bar
his
of Barnett’s
protection
equal
of
law.
which, justifiably in
his client’s affairs
findings
Judge’s
4. The District
as
view,
City
our
led an entire
discriminatory
to racial bias and
motive
manage or be-
him unsuited to
find
part
Rapids
on the
of the Grand
come
of
Even
the licensee Barnett’s Bar.
clearly erroneous,
Commission are
with-
though
may
history
have caused
meaning
of Rule 52 Fed.R.Civ.P.
that,
personal
some
dislike of
Lewis
“clearly
as the term
erroneous” has been
by itself,
up
denial
does not add
to a
by
articulated
United
v. United
States
equal protection
of
That
of the law.
Gypsum,
States
68
U.S.
any beginning
no Commissioner had
(1948).
S.Ct.
wise, excerpt following is shown question 5. We do reach the of from his cross-examination : whether or in bank- the trustee ruptcy process equal were denied due “Q. now, looking And back at it protection the law the revocation of date, you even do assert as this any of the license for Bar. antagonism there was toward appeal present question. does not you by any of members of that January date,
committee as judgment of the District Court 16, 1962? opinion conflicts with is re- versed; the cause is remanded “A. No.” District Court with direction to vacate just We clear make what we decide. setting July 31, 1962, its order aside the not, Rapids 1. Plaintiff under resolution of the Grand Com- Commission, denying approval mission Glicker v. application (CA 6, 1947) F.2d 96 for transfer direc- entitled and with dress, injunctive type, hearing mandatory a full tion to trial dissolve the 11. The District characterized Commission since 1960 given by Vandenberg Manager reasons and the oth- Sales of a business concern of coverage; er “a statewide Commissioner Jamo Commissioners facade for involving owns his real reasons behind the action of own business the sell- personal sewing Committee and the vacuum cleaners and ma- year chines, grad- is a 35 old economics racial discrimination of Chief Johnson.” (222 University presi- F.Supp. 383) Michigan, uate chapter dent of alumni the local school, recipient stated, of that and as Commissioner Lamberts the wife neurological surgeon a of a of Grand commendation the NAACP graduate University behalf; work its Sevens- herself Commissioner Michigan Nursing; ma was shown to have School of been an active Commis- mortician, Negro, Judge worker sioner Barto is at one time the election Letts, judge been member elected licensee and had who was Municipal years; opposing Com- over white the Commission for Court Sypniewski had been a member candidates. missioner *20 requiring and its Chief order approve transfer to Lewis Police
of the involved license. judgment District Court foregoing extent,
is, reversed.
EDWARDS, (concur- Circuit
ring).
For five the reasons stated in the paragraphs
numbered at the conclusion opinion, I concur in the court’s
decision set forth thereafter. PHILLIPS, Jr., Jack Cecil Milton
John Walker, Dale Richard Cherbo and Appellants, America,
UNITED STATES Appellee.
No. 19646. Appeals Court of
United States Circuit. Ninth 18, 1965.
Oct. 22,1966.
Rehearing March Denied