*1 Chrysler 1982] Civil CHRYSLER CORPORATIONv DEPARTMENT OF CIVIL RIGHTS 4, 1981, Docket No. 52291. Submitted June at Detroit. Decided June 9, 1982. employee Chrysler Corporation An a racial filed discrimination complaint against Chrysler Michigan Department with the Rights. department charge against Chrysler The issued a subsequently based on the and filed amended charge $20,000 seeking damages in for emotional distress. Chrysler sought permission department depose department deposition claimant. The refused to allow the ground Chrysler deposition, discovery intended a evidentiary one, court rules forbid the allow- depositions. fact, discovery ance of the court rules had been approximately years taking amended 2-1/2 earlier to allow the depositions discovery purposes evidentiary for either both. The confusion came about as the result of the failure department incorporate the amended court rule into the governing depositions. department, administrative rule The sought deposition by Chrysler, not to allow the stated change that it had been unaware of the in the court rule and incorporate therefore never intended to the amended rule and that, any event, gave rights the administrative rules the civil deny depositions. commission discretion to brought Ingham seeking declaratory judg- suit in Circuit Court [6, [10] [3] [2, 4, [8, [II] [I] [12] [13] 22 Am Jur 22 Am Jur 20 Am Jur 52 Am Jur Mandamus 306. 20 Am Jur 7] 5 Am Jur 2 Am Jur Am2 2 Am Jur 2 Am Jur 5] 2 Am Jur 2 Am Jur 20 Am Jur Jur 2d, Appeal 2d, 2d, 2d, Declaratory Judgments 2d, Declaratory Judgments 2d, 2d, 2d, 2d, 2d, 2d, 2d, References Courts 116. Administrative Law 593. Courts Administrative Law Administrative Law Administrative Law 656. 2d, Administrative Law Administrative Law Courts 117. § §§ § Error § § et Points in Headnotes seq. 772. § § § §§ §§ §§ 31.§ 31.§ 465, 418. 598. 465. App 117 alternative, or, an order ment Bell, J., court, against department. Robert Holmes summary plaintiff. granted An order in favor of appeals. Held: Defendant control was issued. *2 ordering superin- judge abused his discretion 1. The trial declaratory judgment could have tending a control because safeguard plaintiff's The case adequately interest. to been used the to end the court with instructions is to circuit remanded superintending control. order of interpreting err in the administra- 2. trial court did not The discovery purposes. depositions allow for tive rule to J., opinion admin- O’Brien, the that the F. concurred with X. ambiguous depositions and that defen- rule on was not istrative having consequences adopted a court of dant must suffer the contrary the the intention and with rule which is to superintending must be the control conclusion adequate remedy to was available because another reversed however, express plaintiff. separately, view that wrote to his He declaratory judgment to a in the never entitled was judgment circuit court under the terms of the provision the Procedures Act. In the event of provisions Michigan the Civil an under Rights decision not have Act of the defendant’s final would adequate remedy, provided an the Administrative Procedures Act immediate review the defendant’s would have allowed deposition. plaintiffs request for the denial of Reversed and remanded. Maher, J., part part. He R. M. concurred in and dissented in superintending concurred with treatment of the control issue, but to the construction of dissented as taking depositions. felt rule was on the He weighed ambiguity ambiguous and that the trial court applica- plaintiff, contrary favor to of construction rules Furthermore, statutory
ble a case. in such has no discovery depositions or constitutional to administra- provides hearings tive since the Administrative Procedures Act deposi- adopt allowing may that an appropriate tions extent to its own and in the manner proceedings. He would reverse and with instructions remand dismiss.
Opinion of the Court Superintending — 1. Mandamus Control. control, mandamus, magis- Superintending require like lies to perform magistrate trate to a function where the a clear has legal duty to act. Superintending — 2. Mandamus Control. superintending A court neither substitutes its or discre- magistrate directly tion for that of the nor does it act in the rather, premises; magis- it examines the record made before the trate to determine whether was there such an abuse of discre- perform legal duty, tion would amount a failure to a clear perform legal found, duty and if a failure clear magistrate perform duty. court orders Appeal — Superintending Control. grant denial of order of control is within the discretion the trial court and absent an abuse Appeals. discretion will not be disturbed the Court of n —Superintending — — 4. Courts Circuit Courts Control Admin- Agencies — istrative Court Rules. Superintending circuit over inferior tribunals remedy only plain, speedy available if another adequate remedy party seeking is not available to the order *3 (GCR 711). Superintending — 5. Mandamus Control. supersede An order of control does not the use of appellate procedure; normal an order provide plain- should not be issued where an would plain, (GCR speedy, adequate remedy tiff with a 711.2). and by F. O’Brien, X. J.
Concurrence — — 6. Administrative Law Administrative Procedures Act De- claratory Judgments Agency — Rules. original declaratory An action in circuit court for applicability validity determine the or of an administrative rule pursuant declaratory judgment provision of the Adminis- (1) upon trative Procedures Act is conditioned (2) requesting declaratory ruling agency a from the agency denying request failing expeditiously or to act (MCL 24.264; 3.560[164]). MSA Agencies Declaratory Judg- — — 7. Administrative Law State —ments Administrative Procedures Act. plaintiff, declaratory judgment by A obtain a a circuit rule, validity court as to the of an administrative must first by seeking declaratory a remedies his administrative exhaust (MCL 24.264; agency matter ruling in the from the involved 3.560[164]). MSA Declaratory — — Commission 8. Law Administrative Judgments. issuing prohibited rights from a commission The state civil statute, regula- ruling applicability, of a toas once a state of facts to an actual tion or rule statute, involving regulation Hied with or rule has been (1979AC, 37.20[2]). rights department R of civil — — Act De- Procedures 9. Law Administrative Administrative Judgments. claratory provisions declaratory judgment Proce- of the Administrative interlocutory as a means of review Act were not intended dures by application interpretation or rule made during agency case. contested Appeal. — — 10. Law Circuit Courts Administrative immediately proce- may preliminary, review A circuit court or if review of state action dural or intermediate provide agency’s not ñnal decision order would (MCL24.301; 3.560[201j). remedy MSA Maher, R. M. and Partial Dissent Partial Concurrence — 11. Law Administrative Rules. Administrative given charged to a statute those with the The construction executing always respectful duty to the most entitled cogent ought be overruled without consideration reasons; interpretation although an administrative controlling, the rules under it functions is not which persuasive. interpretation regarded extremely be must Hearings Deposi- — — Law Administrative tions. discovery deposi- statutory There is no constitutional hearings. tions in administrative *4 Hearings Deposi- — — Law Administrative tions. agency may provides The Administrative Procedures Act adopt depositions allowing the extent and (MCL24.274; proceedings appropriate to its the manner own 3.560[174]). MSA Rights Civil op Opinion the Court Dickinson, McKean, & Wright, Cudlip Moon (by Kienbaum), G. Thomas for plaintiff. J. General, Kelley, Attorney
Frank Louis Caruso, A. Lock- General, Michael and Solicitor Alvarez, man and Ramon M. Attorney Assistants General, for defendants. P.J., Bronson,
Before: R. and M. Maher O’Brien,* F. X. JJ. Curiam. The present litigation
Per arose out of complaint filed Department with defendant Eventually plaintiff brought in 1976. seeking this suit order for con- trol. The circuit court issued an order of superin- tending 4, 1980, control on June and defendant appeals right. as of 1, 1976,
On March Ludy charge Crain filed against plaintiff unlawful discrimination de- fendant. Defendant charge issued a against plain- 24, tiff on based on July filed an on subsequently charge amended October 16, 1979, seeking $20,000 damages for emotional distress.
In the hearings meantime defendant held public in connection with the enactment con- cerning depositions hearings. in its adjudicatory 37.15, Eventually issued rule was promul- which on gated 2, 1979, October and which took effect October 1979. The rule states: Michigan general "Rule 15. In accordance with the rules, thereof, any or the commission or member director, application on its own motion parties, may deposi- take cause to be taken residing tions of witnesses within or without state.” AC, R 37.15. * judge, sitting Appeals assignment. Circuit on the Court of *5 App 117 Opinion of the Couet 1977, 1963, 302.1 read: Before GCR action, any party may of an "After commencement including party, by any testimony person, take the deposition interroga- or written upon oral examination discovery for use as evidence purpose tories for pend- purposes. In all actions for in the action or ing both court, of claims probate commissioner any before arbitrator, referee, court, circuit appointed by court not administrative probate commissioner, peace, or other court justice of any rules or before expressly covered these judicial func- in exercise of in tions, and used accordance depositions may be taken not for only and for use as evidence these rules with the evidence discovery admissible purposes shall be taken.” amended effective
However, rule was 3, It March now states: After com- Depositions May ".1 Be Taken. When court, any any party may mencement of action including party, by testimony any person, take the interrogato- or written deposition on oral examination discovery purpose use evidence ries for the in purposes.” action or both complaint, receiving plaintiff the amended After defen- deposition. response, a notice of issued pursuant stating dant issued a final order depose plaintiff 37.15 would allow Mr. intended a Crain because In its deposition. and not deposition evidentiary un- been ruling, defendant had explained 1963, 302.1 and change aware of the in GCR incorporate therefore never intended that, in any also ruled amended rule. Defendant event, discretion to gave rule 37.15 the commission depositions. deny discovery 6, 1980, brought suit February On of Civil Opinion of the Court Ingham County Circuit Court for a asking declara- or, alternative, tory judgment, an order for parties control. Both soon filed summary motions for judgment. April On hearing in a court, plaintiffs before the trial mo- tion was An granted. con- *6 4, 1980, trol was issued June on and defendant appeals. First,
Defendant
raises
two issues on appeal.
defendant
superintend-
contends
that an order of
ing control should not have been issued inasmuch
Procedures Act
a
allows
to test
through
judgment.
24.264;
MCL
MSÁ
3.560(164). This
ais
case of
impression
first
under
the Michigan Administrative
Procedures Act.
general guidelines
for an
superin-
order of
tending control were
Flint
People v
enunciated
Municipal
Judge,
429, 431;
383 Mich
175 NW2d
(1970):
"the
proper
superintending
office
to
control
discretion
an examin-
[is
review]
* * *
ing magistrate.
control,
Superintending
like
mandamus,
lies to require the
to
magistrate
per-
form function where the magistrate
has a clear
legal duty to act.” This
may
order
be used to
review administrative
procedures. Gerber Products
Anderson,
Co v
Co,
Clayton &
Mich App
(1977).
Basically court and the trial within the discretion if disturb review will Appeals Court of General v Attorney of discretion. is an abuse there 42; 285 Judge, Court Recorders NW2d is control superintending
However, the order 1963, 711: GCR governed by adequate rem- Concerning If another Use. Policy ".2 order, seeking party is edy available may be filed. superintending control complaint for ".4 Jurisdiction. Court, "(b) the Court Supreme appeal in the When available, that method is the circuit court Appeals, If must be used. review available,
sought
and an
control must be dismissed.”
*7
words,
exercises
properly
the circuit court
In other
inferior
tribunals
control over
superintending
is
remedy
speedy,
adequate
plain,
if another
v
State Bank
Concord
Farmers
not
available.
Bureau,
Commerce, Financial
Institutions
Dep’t
(1977). However,
496
313;
77
258 NW2d
App
Mich
the use
supersede
does not
control
superintending
ap-
when such
appellate procedure
of normal
be available
peal would
Comm, 37
Security
Employment
Radke v
purpose.
104;
App
Mich
194 NW2d
case,
judge
in
opinion,
In this
our
trial
ordering superintending
abused
discretion
have
could
declaratory judgment
control because
inter-
safeguard plaintiffs
adequately
been used
express
disagreement
Yet,
ruling,
we
no
ests.
so
Chrysler
Rights
v
of Civil
Opinion of the Court
Corp
Rights Comm,
v Civil
Chrysler
Mich
(1976):
283, 289;
App
Defendant
(1974),
621; 308 (1981), NW2d 586 this Court ruled that an order of superintending properly control did *8 issue where the defendant had been improperly denied a court reporter even when demanded. Opinion of the Court allege general not did the though plaintiffs
Even
that
the
action,
noted
was
a class
practice
each vic-
requiring
would be burdened
courts
(especially
own case
appeal
timized
involved). However,
right
a clear
where such
(as will be
clear
case,
is not so
right
this
plaintiff has
opinion)
in this
later
developed
litigants
to the
unavailable
remedy
an additional
judg-
or Cahill:
in either Smith
Procedures
of the
provision
ment
as
can
just
Through
provision,
Act.
Ludy
Crain
in not
bind defendant
easily
(in fact,
in future matters
but also
matter
well);
litigants as
thus
similarly
other
situated
time-wast-
relieved of the
easily
just
courts are
in Smith.
process rejected
ing
case-by-case
to the
Therefore,
this case back
remand
we
to end the order of
with instructions
circuit court
question
control. Since
again
will be raised
interpretation
regulation’s
it at this time.
remand,
to address
necessary
it is
trial court did
concluded that
We have
view,
our
of rule 37.15. In
in its interpretation
err
truth-seeking
discovery is a benefit
full
Consequently, we believe
any
function of
tribunal.
which seeks
re-
any administrative
critically examined.
discovery should be
strict
37.15,
rule,
case,
merely
applicable
In this
The rule
granted.
depositions may
be
states
de-
discovery
distinguish evidentiary
does not
such,
37.15 a
that under
iule
positions. As
we feel
consideration
litigant
expect
serious
has
Commission
Michigan
needed in
depositions are
really
whether
the commission
Where a rule authorizes
cause.
discretion,
enough
its
it is not
to exercise
dis-
exercises
always
the commission
say
*9
v
of Civil
F. X.
J.
O’Brien,
Concurrence
prohibit
Compare,
cretion to
action
issue.
Co,
Iron
Cleveland-Cliffs
Co v First State Ins
(1981),
App 487, 497;
NW2d 78
Croda
(1981)
Sarnacki,
106 Mich
ambiguity appears rule, in an administrative agency’s interpretation extremely persuasive. ambiguity However, we no find in rule 37.15. We acknowledge 1963, change that OCR 302.1 was amended in 1977 and this that in the was supposedly by the unknown commission before promulgated However, rule 37.15. 37.15 since rule actually October, 1979, took effect in some two- years and-one-half after the relevant amendment accept 1963, 302.1, to GCR we cannot defendant’s argument really the commission in- never discovery depositions. tended allow to We see litigant inherent unfairness who relies language the literal of an administrative promulgated when the which has that rule subsequently attempts rewrite under guise "interpretation” negligent because it was enacting really embody a rule which did not its place. situations, desires in the first In such agency, litigant, should consequences negligence. suffer the of proceedings Reversed and for remanded further opinion. in accordance with this We retain no jurisdiction. having pre- party costs, No neither vailed in full. (concurring). agree
F. X. I that 1979 O’Brien, ambiguous AC, R 37.15 is not and that the defen- consequences having dant must suffer the incor- general porated contrary court rule which adopt issue, intention. I On both O’Brien, J. F. X. Concurrence curiam per conclusion the rationale opinion. the order in the conclusion
I concur reversed because must be available was remedy another I disagree 711.2. plaintiff. GCR pursuant declaratory judgment conclusion 3.560(164) remedy. was that 24.264; MSA MCL declara in circuit original action An *10 or applicability the to determine judgment tory to pursuant of an administrative validity 3.560(164) upon conditioned 24.264; MSA MCL ruling (1) declaratory a requesting plaintiff the (2) the denying agency the agency from the on it. As expeditiously act failing request deposition notice of was plaintiff’s that suming ruling, declaratory for a request to a equivalent or otherwise request the not deny defendant did found that specifically fail to act on it. Defendant AC, encompass did not R 37.15 1979 responded agency The fact depositions. con statutory of the second satisfaction precluded an action for declara to maintain dition necessary 64 of the Administra judgment pursuant tory § Construction See Greenfield Procedures Act. tive 172, Co, Dep’t Highways, v of State 402 Mich Inc (1978) (separate opinion 718 fn NW2d v Construction City of Warren State J.), Levin, by Comm, 493, 497; 239 Code NW2d pursuant a declaratory judgment To obtain must exhaust § from declaratory, ruling a seeking remedies first ruling originally was agency. declaratory That testing applica- provide a means devised involved person a rule became bility of before is, agency, an administrative dispute Maher, R. M. Partial Concurrence apart from Cooper, a contested case. See 1 Admin- (1965), istrative Law 240. To p implement request ruling, a declaratory separate were mandated and promulgated. 24.263; MCL AC, 37.20(2) 3.560(163); MSA R 37.20. Rule prohibits ruling issuance of a declaratory once filed, has been as in the instant case. Finally, provides 63 specifically judicial re- § view of a declaratory the same manner an final agency’s decision or in a con- tested case. purpose express terms of 63 and 64 §§
convince me that provi- sions of the Administrative Procedures Act were not intended as a means of interlocutory review of the interpretation application of a rule made by during a contested case. This does not mean wholly without recourse until completion of the case. In those limited instances which decision pursuant 37.2606; final to MCL 3.548(606) MSA provide would not remedy, the Administrative Act Procedures affords *11 the means of seeking immediate review. preliminary, "A procedural or agency intermediate ruling reviewable, or action is not immediately except may grant the court leave review of such action if review of the agency’s final decision or would provide not 3.560(201). remedy.” 24.301; MCL MSA
R. M. J. (concurring, part; dissenting in Maher, part). in I in concur treatment majority’s However, the superintending issue. I re- spectfully appropriate dissent as to the construc- tion of rule 37.15. Mich
108 117 Maher, R. M. Partial Concurrence gave plaintiff rule 37.15 weighed judge the trial deposition, to a approách This is favor. plaintiffs ambiguity Fry, Co v 271 Mich In Boyer-Campbell not the law. (1935), quoted the Court 282, 296; 165 260 NW Moore, 95 US 760, 763; 24 L Ed States v United (1877): to a given construction 588, 589 "[T]he of execut duty with the charged those statute respectful to the most entitled ing always it is with ought not to be overruled and consideration Furthermore, although reasons.” cogent out not con interpretation is agency’s extremely persua it as trolling, regarded must be Park, Inc, College Mobile Heights v sive. Artman 193; 173 NW2d App 20 Mich Detroit, Boat Co Gregory Plaintiff cites Rand v (1972), and App 195 NW2d Comm, 581; 248 NW2d Service ruling. In (1976), trial support judge’s of the Boat, that, if a Gregory rule’s Court states unambiguous, reviewing clear language However, I go beyond language. not courts will The first ambiguous. find rule 37.15 somewhat clause, Michigan general "in accordance rules”, to what clearly does not state court Furthermore, the extent specify it does refers. inter- The rule could be discretion. complete discretion the commis- preted vest sion, easily interpreted just could be up its discretion require give the commission a cir- only where deny discovery depositions Therefore, deny would them. judge cuit Boat Rand inappo- is also Gregory inapplicable. inasmuch as the Rand Court stated site proce- depart if an should from established rules, evidence to it must have sufficient dure However, the commis- support departure. such a *12 of Civil Maher, Partial Concurrence R. M. sion’s procedure established has been the routine denial of discovery depositions, as it has done in the instant case.
Overall, plaintiff has no constitutional right In discovery. Rio, the Matter of Del fact, NW2d 727 no has statutory to discovery depositions in administrative (MCL hearings because the APA 24.274; MSA 3.560[174]) provides an agency may adopt allowing for discovery depositions extent and in the manner appropriate to its own proceedings. Plaintiff’s appearance before this Court is due to 37.15, the ambiguity of rule the circuit court did not take proper approach in interpreting Therefore, rule. since defen- dant’s interpretation of rule 37.15 is in accord with its previous practice, and since the rule’s history makes it clear that defendant intended at least to retain discretionary power over allowing depositions, defendant’s interpretation of the rule should have been I accepted. would reverse remand with instructions to dismiss.