177 N.W.2d 679 | Mich. Ct. App. | 1970
BURTON
v.
VELOSKY
Michigan Court of Appeals.
Ivan E. Barris, for plaintiff.
Harold Helper, for intervening defendant.
Before: QUINN, P.J., and FITZGERALD and R.B. BURNS, JJ.
QUINN, P.J.
The paramount issue in this controversy is whether plaintiff or Clara Raven is to be medical examiner of Wayne County. The factual background is:
Early in 1967, the Wayne County medical examiner died suddenly. The county board of supervisors *648 designated Clara Raven, a deputy medical examiner for several years, acting medical examiner. March 30, 1967, the following resolution was passed:
"Resolved, by the Board of Supervisors of the County of Wayne, this 30th day of March, 1967, that John F. Burton, M.D., be and he hereby is, provisionally appointed as acting medical examiner for Wayne County, effective April 3, 1967, said appointment to be on an interim basis until such time as the medical examiner position may be filled through civil service procedures, and be it further
"Resolved, that the Wayne County Civil Service Commission be and it hereby is requested to approve this provisional appointment, and be it further
"Resolved, that the Civil Service Commission be and it hereby is requested to take immediate and appropriate steps towards the development of an eligible list from which the appointment of a medical examiner may be made on a permanent basis by this board, and be it further
"Resolved, that the chairman of this board be and he hereby is authorized to sign all necessary documents on behalf of this board as appointing authority to effectuate the terms of this resolution."
Pursuant thereto, plaintiff assumed the office of medical examiner April 3, 1967 and retains the office to this date.
June 14, 1968, the civil service commission gave a promotional examination for the purpose of developing an eligibility list from which to fill the office of medical examiner. Plaintiff and Clara Raven were the only persons who took the examination. After evaluating the examinations, the commission determined that Clara Raven was first and prepared *649 to certify her as the only eligible candidate for the appointment.
June 21, 1968, plaintiff filed his complaint for injunctive relief against the commission on the basis that the factors included by the commission and the methods used in computing examination scores were illegal, and if proper factors and methods had been used in computing the examination scores, he would have been first. On the filing of this complaint, plaintiff obtained an ex parte order restraining the commission from using the eligibility list or from certifying any name therefrom for the position of medical examiner. GCR 1963, 718.2 was not complied with in obtaining the ex parte restraining order. It was dissolved September 16, 1968 as improvidently granted, and on October 17, 1968, the commission certified Clara Raven to the board of supervisors as being first on the promotional list.
July 10, 1968, Clara Raven was permitted to intervene and her answer contained a motion to dismiss the complaint as prematurely brought because plaintiff had failed to exhaust his administrative remedies before seeking relief in court. This motion has never been specifically ruled on by the trial court. Administrative remedies must be exhausted before judicial relief is sought. Bennett v. City of Royal Oak School District (1968), 10 Mich. App. 265. On the record before us we are unable to determine whether plaintiff has exhausted his administrative remedies.
Normally on such a record, we would remand to the trial court for a determination of this question, but other aspects of this litigation lead us to a different conclusion.
By bringing this action as he did, plaintiff prevented completion of the administrative process of appointment. Conceivably, had that process been *650 completed, no court action by plaintiff would have been required. The statute, CLS 1961, § 38.415 (Stat Ann 1961 Rev § 5.1191[15]), gives the appointing authority the choice of appointing the person certified or to make an original appointment.
The jurisdiction of the trial court is questionable due to the form of plaintiff's action. Review of civil service commission action is by certiorari, Bischoff v. County of Wayne (1948) 320 Mich. 376, presently, superintending control, GCR 1963, 711.3.
By finding that the examination results were not affected by the application of factors and methods attacked by plaintiff in his action, and the record supports such finding, we believe the question of the propriety of using these factors and methods is moot.
For these reasons, we decline to decide the serious and substantial issues raised by the appeal and cross-appeal. We find a more appropriate solution to be that the administrative appointment process be completed before it is challenged in court.
Reversed and remanded for entry of an order dismissing plaintiff's complaint, intervening defendant's cross-complaint and denying defendant's prayer for affirmative relief. No costs are awarded.
All concurred.
