*1 103 1974] CITY YPSILANTI v CIVIL RIGHTS OF COMMISSION
Opinion of the Court 1. Civil —Commission—Jurisdiction—Constitutional Law— Statutes. jurisdiction The Civil Commission has to entertain a employment age discrimination the basis of although provision and sex the constitutional which created investigate only commission authorized it race, "religion, legislation origin”; because color or national expanded subsequently jurisdiction of the commis- complaints age sion to include of discrimination because of (Const constitutionally v, §29; is valid art 423.303a). Municipal Corporations 2. —Home Rule Cities —Powers. legislative body permitted of a home rule to make policy that inconsistent with state statutes is not constitutionally infirm. Municipal Corporations Employment—Occupational 3. — Qualifi- cations —Powers. municipality A occupational has the to establish bona fide qualifications (MCLA423.303a). for various classifications [6, 9, [8] [4] [1] [5] [6, [10] [7] Am Jur [2] [3] 63 Am Jur 9] 2 Am Jur 2 Am Jur 2 Am Jur 15 Am Jur 56 56 20 Am Political Subdivisions Political Subdivisions 246 et 1351. 20 Am Jur Am Jur Am Superintending Jur Jur 2d, 2d, 2d, 2d, 2d, Equity 2d, 2d, References Administrative Law 596. 2d, Administrative Law 327 et Administrative Law 595 et Public 2d, Municipal 2d, Courts 116. Courts 117. Municipal Officers and § § §§ § 100. control over inferior tribunals. 112 ALR § for Points § 56 et 126. Corporations, Corporations, seq. Employees § § § seq. in Headnotes seq. seq. § Counties, Counties, 44 et seq. and Other and Other Corpora- Rights Commission—Jurisdiction—Municipal 4. — Occupational Qualifications tions — jurisdiction lacked as matter of The Civil *2 city alleging age complaint against a law to consider a city, pursuant employment where to a in discrimination occupational qualifi- authorizing fide bona it to establish statute classifications, prospective limited new cations for various persons ages between the employees police force to those itsof 423.303a). (MCLA of 21 and 31 Part, in Part P. Dissent J. ' Rights Law —Exhaustion of 5. —Commission—Administrative Civil Remedies. complaint city, the Civil Commission from A faced with a practices, employment prema- alleging in its court; against turely commission in circuit it suit started defended the merits before the should have answered and
commission. Rights Commission—Superintending Control —Adminis- 6. — trative with Functions. Law —Interference control, superintending the effect of which is to An order of proceeding upon prevent Commission from the Civil discrimination, employment should not be issued of prevent not act on such a matter and because the courts should functioning effectively. the commission from Rights Commission—Municipal Corporations Equitable 7. Civil — — Relief. against plaintiff city equitable relief A is not entitled to showing made where it has not a sufficient Commission proceed initially required suffer harm if before that would the commission. Re-
8. Administrative Law —Exhaustion of Remedies —Judicial view. principle requires all A fundamental of administrative law judicial be relief is administrative remedies exhausted suspended merely sought, and rule is not because the administrative action be erroneous. Appeal Superintending 9. Control —Alternative Error — Remedies. superintending where an An order of will not issue control remedy is alternative available. Ypsilanti Opinion the Court of Appeal Superintending 10. and Error — Control —Discretion—Re- view.
Grant or an denial of order control is within the sound discretion the court and a denial of the order upheld should no clear where abuse that discretion is shown. Appeal Washtenaw, Deake, from Edward D. J. 7, 1974, Submitted Division June at Lansing. (Docket 18991.) No. August Decided 1974. Leave to appeal applied for.
Complaint City for an order of superin- tending Judgment control. for defendant. Plaintiff appeals. Reversed and remanded. Egnor
Bronson & Hamilton), Walter K. (by *3 plaintiff.
Frank J. Kelley, General, Robert A. Attorney Derengoski, General, Solicitor and Michael A. Lockman and Howard E. Goldberg, Assistants At- torney General, for defendant. J.,
Before: P. and Holbrook O’Hara,* JJ.
O’Hara, J. In 1963 adopted this state a new constitution. One of provisions, V, its 29, article § provides as follows: hereby "There is rights established a civil commission eight persons, which shall consist of not more than four of whom shall be members of political party, the same appointed governor,
who shall be by by the and with senate, the advice and consent of the for four-year terms not more than expire two of which shall in the year. same duty It shall be the of the commission in a prescribed manner by investigate law to * Supreme Justice, sitting Appeals Former by Court on the Court of assignment pursuant 1963, to Const art § 23 as amended in 1968. App op Opinion the Court person any because of alleged origin enjoyment in the national race, religion, or color by by law and this consti- guaranteed rights the civil protection of equal such civil
tution, the and to secure legislature discrimination. such rights without appropriation for effective provide an annual shall of the commission. operation power, have in accordance "The commission shall general provisions constitution and of of this with laws rules and hearings, agencies, promulgate administrative governing procedures, own for its to hold regulations oaths, through court administer authorization of witnesses and the submis- require attendance records, testimony, appropri- issue take (o sion powers shall have other commission orders. The ate provided purposes. Nothing out its carry law to be construed to section shall diminish contained legal party to direct and immediate any of this state. equitable remedies in courts final, commission, “Appeals from orders includ- and refusals to issue com- ing and desist orders cease de novo before the circuit court plaints, shall be tried V, art having jurisdiction provided law.” Const §29. carefully
It to be noted four factors of unlawful discrimination over which commis- race, granted "religion, jurisdiction sion was were more, origin”. or national No no less. color However, Constitution adopted, Legislature had Em- enacted Fair ployment seq.; Practices Act. MCLA 423.301 et 17.458(1) seq. legislative et history Its as *4 follows: given
The statements of involved are word, almost to the identically.
"I. "Whether Section 37.6 and related sections of the Compiled Michigan, extending Laws of the State of jurisdiction of the Civil beyond expressed grant jurisdiction embodied within the Constitution of 1963 constitutionally are valid.
"The question trial court 'yes’. answered this defendant-appellee "The question would answer this 'yes’.
"II. "Assuming validity question, of the statutes allegations whether the Civil charge contained within the Commission are sufficient to confer jurisdiction upon the Commission within the terms of that statute.
"The trial question court answered 'yes’. "The defendant-appellee question would answer this 'yes’.” facts, stipulated, were necessary an understanding of the legal stated issues are as follows. Mary One Foley applied position as a member police force of plaintiff city. She was rejected. She filed a complaint with defendant *5 App 103 55 Mich op Opinion the Court alleging unlawful dis- age, race and sex. The her of
crimination because investigation, and found an commission conducted complaint Mary’s as to support cause probable age and only. complaint the on not answer did city
Plaintiff suit in circuit court a merits. started the Rather control direct- of seeking an order proceedings its as to cease ing the commission powers, constitutional of its being excess expanded. Additionally, legislatively not be could the does commission lack city, only the said not make 'out a case of Mary did jurisdiction, Thirdly, city the merits. the on disqualified Ypsi- that because alleged Mary was entitled to city clearly a lanti as home-rule qualifica- for the regulations reasonable prescribe its employees. tions of the first judge
The trial held upon the pass and did not second. question stated well docu- He favored us with a detailed opportunity take this also opinion. mented We comprehensive counsel their commend both oral presentations. and their incisive briefs adjudication At of we are bound our level opinion Supreme Court. On precedential of right first as to the commission question trial judge we affirm the entertain Co v Beech Grove Investment authority on the Commission, 405; 157 NW2d opinion differing views of reflects stands for a problem before us. Justice Adams authority liberal view of the of the commission any right a "civil may fairly enforce that called right” and which stems the constitutional from provision itself, dealing any other statute with emanating right, civil all from together rights with common law this State. Opinion the Court separate opinion in a held Justice Souris duty, commission had with or *6 legislation, to express enabling protect without discriminatory of those civil rights denial of magnitude rights which are of the fundamental of and of the essence of civil citizenship freedom. in Kelly
Justices and dissent Black, Dethmers, clearly legislative tersely implemen- held and requisite stipulated question tation was under of that case. majority approved of the Court the grant of rights
additional and duties to the commission. We bound spirit are and letter by holding.1 of that We turn now to what we consider dispositive issue.
Ypsilanti legislative a home-rule Its city. body is permitted to make policy that not inconsistent with state statutes or is not constitutionally in- firm.
In the
of
legislative
exercise
judgment
chose to restrict
candidates
for
of
members
its
police
to applicants
force
between the
21
ages
31.2 Certainly the municipality
has the
to
establish
fide occupational
bona
qualifications
for
various
classifications.3
It is
for this Court
any judicial
reviewing
not.
authority
so far as we
to say
know
"you must
applicants
consider
membership
of
police
begining
force
age
at
18 or extending to
age 45”. We cannot by judicial
fiat disenfranchise
the voters of Ypsilanti
in a purely legislative
question.
1
thoughtful
For a
possible implications
discussion relative to the
Beech
found in MCLA MSA 5.3360: 423.303a(a); 17.458(3a)(a). See MCLA Danhof, P. J. Partial applicant Foley facts stipulated
Under matter as a of law. ineligible for consideration order of the trial opinion part That proceed commission with authorizing the judge on the charge unlawful reversed. sex is The cause is of age and grounds for entry judg- court of a the trial remanded control over granting ment herein delineated. the extent commission costs, question. public No Holbrook, J., concurred. (concurring part, dissenting in in opinion resolving majority’s That
part). part strengthened first the decision issue is *7 Clark, Rights v Michigan Civil Commission 912, 727; 212 NW2d I am in part opinion. of the agreement with that However, I must dissent from the manner has the issue the resolved second majority which this of this inappropriate stage at because opinion encourage The well majority’s case. respondents to to circum- attempt similarly other the Rights vent Commission. the plaintiff
There is no doubt the has to occupational qualifica- establish bona fide tions for is consid- various classifications. There doubt, however, advisability to the erable as the making initial in the circuit determination court Court as to what constitutes a bona occupational qualification fide the Civil Rights opportunity pass Commission has had an question. the upon to re- plaintiff city chose spond starting in circuit by suit rather answering defending court than the merits before the commission. Recourse court at that point premature. Ill Partial
The constitutional stature reaffirmed in Michigan Commission has been Clark, supra, (1973), which 212 NW2d held that 26.1300(401a) 564.401a; provisions authorizing the of a proceeding removal before the commission to circuit court was unconstitu- Levin, writing tional. Justice for the majority, Legislature reasoned that as the just may not prevent or judicial executive gov- branches of exercising ernment from powers, their similarly Legislature prevent could not the Civil Commission from functioning effectively.
The majority recognized has the significance of spirit as well the letter as of the holdings of Supreme recognition Court. This prevents me from joining in the decision reverse. The courts no Legislature less than the should not act in a matter prevents Commis- sion from functioning effectively. The decision of majority ordering the issuance of the order of superintending control will interfere with the or- derly functioning the commission.
Another reason issuing the order of control under circumstances such as these was referred to in Clark: " 'An individual whom the Commission has proceeded may injunctive seek from relief threatened principles harm under the applicable same to threat- *8 illegal ened action agencies’, other administrative (after including further developments adoption Constitution) the 1963 general application of such principles.” Michigan Clark, Commission v supra, 725; 390 Mich 212 NW2d 915. case, In present equitable relief not war- is ranted because the city has not made a sufficient that showing will suffer harm if required to App 103 Mich 55 112 Partial Commis- before initially proceed sion. principles of adminis- fundamental
One
all administrative
reme-
that
requires
law
trative
is sought.
relief
judicial
before
exhausted
be
dies
&
Stamping
Manufacturing
v Industrial
Holman
(1955); Craig
322
Co,
235; 74 NW2d
49
Department,
App
Mich
Detroit Police
(1973).
upon
rule was based
This
NW2d
agency will
the administrative
that
presumption
given
if it
an
correctly
opportu-
is
the issue
decide
suspended merely by
The rule is
to do so.
nity
alction
the administrative
that
the fact
District,
School
Royal Oak
Bennett v
erroneous.
(1968),
leave to
159 NW2d
denied,
There
would have
hearing,
age
determined
that
restriction was a "bona
and, therefore,
occupational qualification”
fide
prac-
it did not
an unfair employment
constitute
17.458(3a)(a).
423.303a(a);
tice under
*9
Partial Concurrence
After such a
made,
determination
had been
dissatisfied,
city, if still
could have taken an appeal
to the circuit court on the record developed before
the commission. Lesniak v Fair Employment Prac-
Commission,
tices
495,
506;
364 Mich
111 NW2d
(1961).
790, 796
Had the city allowed the adminis-
process
trative
completion,
continue
conceivable that no court action would have been
required.
Velosky,
Burton v
Finally, grant or denial of an order super- intending control is within the sound discretion of the trial A court. denial of the order should be upheld in the absence of a clear abuse of that discretion. People v Lansing East Judge, 32, 36; 201 NW2d (1972); LaPratt v Keego Harbor Justice of the Peace, 1 Mich App 657, 660; 137 NW2d 770-771 There has been no showing that the trial court abused its discretion in the affirm. present I case. would