408 N.W.2d 131
Mich. Ct. App.
1987

Lead Opinion

Per Curiam.

On August 9, 1982, plaintiff was *242dismissed as Assistant Chief Engineer of the Oakland County Drain Office. As a county employee, he was employed under the county’s merit system. Rule 8 of the merit system provides that disciplinary action, including discharge, shall be for cause. The preamble to Rule 8 describes "a formal appeal procedure” for disciplined "regular status” employees to the Personnel Appeal Board (pab), "whose decisions shall be binding on such employees and departments.” Under the rules, the pab has the authority to modify, reverse, or affirm disciplinary action, and to award compensation.

On August 13, 1982, plaintiff appealed his dismissal to the pab pursuant to the merit system rules. One week later, on August 20, 1982, plaintiff commenced the instant lawsuit. Plaintiffs complaint alleged, inter alia, that defendants (Oakland County and its Drain Commissioner, Chief Deputy Drain Commissioner, and Assistant Prosecutor) wrongfully discharged him in breach of his employment contract (Counts i and iv), and in violation of his asserted right to due process (Count ii). Defendants responded on August 30, 1982, filing a motion for accelerated judgment and summary judgment as to both claims.

In an amended complaint filed September 8, 1982, plaintiff also alleged violation of the Whistle-blowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. (Count vi) and conspiracy to interfere with plaintiffs civil rights under 42 USC 1985(3) (Count vii). On November 5, 1982, defendants filed a motion for summary judgment as to Count vn. Pleadings in support of summary judgment regarding Count vi were filed in October, 1983.

Meanwhile, plaintiff’s appeal of his discharge was heard by the pab in October, 1982. On November 10, 1982, the pab issued a unanimous decision *243finding cause for plaintiffs discipline, but modifying his dismissal to a ninety-day suspension and demotion to Civil Engineer hi. Defendants successfully sought leave to appeal the pab decision to the circuit court. Defendant Kuhn apparently refused, however, to permit plaintiff to return to work.

On January 12, 1984, the circuit court issued an opinion denying each of defendants’ above motions. Additionally, the court dismissed defendants’ appeal of the pab decision for lack of jurisdiction. Defendants appeal by leave granted. We affirm in part and reverse in part.

Defendants first contend that the trial court erred in finding that it lacked jurisdiction to hear defendants’ appeal from the decision of the pab reinstating plaintiff.1 Specifically, the county’s position is that its right to appeal the pab’s decision is constitutionally guaranteed under art 6, §28 of the Michigan Constitution, which provides in part:

All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law.

We agree with the county that the pab is a local administrative agency, which "exists under the Constitution,” and performs a quasi-judicial function when it renders a decision on an appeal by a *244discharged employee. We do not agree, however, that art 6, § 28 guarantees the county a right of appeal of the pab’s decision. Our conclusion focuses upon that section’s language, "as provided by law.”

In Evans v United States Rubber Co, 379 Mich 457, 461; 152 NW2d 641 (1967), our Supreme Court stated:

We do not read the above language, "shall be subject to direct review by the courts as provided by law”, to mean that in each such case review shall be compulsory or as of right upon its being invoked by either party but only that review shall be had when, in the exercise of judicial judgment and discretion, the court shall, on application, so determine, or when so provided by law. No statute provides for such appeal as of right. [Emphasis added.]

In Viculin v Dep’t of Civil Service, 386 Mich 375, 392; 192 NW2d 449 (1971), the Supreme Court reiterated its holding in Evans:

Article 6, §28 does not guarantee a review in the nature of certiorari of "right” but an appeal of such a nature may require "leave” or be automatic as provided by law.

Thus, both Evans and Viculin support this Court’s decision in Robertson v Detroit, 131 Mich App 594, 597-598; 345 NW2d 695 (1983), where this Court wrote:

Plaintiff’s reliance on Const 1963, art 6, § 28 is misplaced. As noted by the Supreme Court in McAvoy v H B Sherman Co, 401 Mich 419, 443; 258 NW2d 414 (1977), reh den 402 Mich 953 (1977), the phrase "as provided by law” contained in Const 1963, art 6, § 28 "vests the Legislature with *245the authority to exert substantial control over the mechanism of how administrative decisions are to be appealed”. As noted, the Legislature has failed to specifically exert any control over the appellate rights and procedures stemming from a decision of a general municipal civil service commission. The circuit court, therefore, had no jurisdiction over plaintiff’s dispute with defendant commission.

As in Robertson, no statute authorizes appellate review of the decisions of the pab.2 3The county therefore has no guaranteed direct appeal.3

The county further contends that, at minimum, art 6, § 28 of the constitution creates authority for circuit court review of decisions of municipal administrative agencies by leave. However, whether an appeal is of right or by leave, art 6, § 28 guarantees only appeals "as provided by law.” The fact remains that no statute or court rule authorizes any form of appeal to circuit court from the decisions of municipal administrative agencies such as the pab.4 ***This Court cannot legislate such an appeal. Accordingly, we must conclude that the trial court reached the right result in finding it *246lacked jurisdiction to hear the county’s appeal of the pab’s decision to reinstate plaintiff.

Defendants’ next argument relates to the court’s denial of their motion for summary judgment on plaintiff’s claim under the Whistleblowers’ Protection Act. Defendants contend that plaintiff’s claim should be analyzed as set forth in Mt Healthy City School Dist Bd of Ed v Doyle, 429 US 272; 97 S Ct 568; 50 L Ed 2d 471 (1977), and that, under such analysis, the denial of defendants’ motion for summary judgment was error.

The Mt Healthy analysis urged by defendants was recently adopted with modifications not relevant to the instant appeal in Hopkins v City of Midland, 158 Mich App 361; 404 NW2d 744 (1987). It is a burden of proof analysis. Under it, plaintiff has the burden of proving that he was engaged in protected conduct and that his participation in that conduct was a motivating factor in the decision to terminate him. The burden then shifts to the employer to come forward with evidence demonstrating that plaintiff’s termination was for a legitimate reason. If the employer states a legitimate reason, the employee may still prevail if he demonstrates that the reason was mere pretext for his dismissal.

While we agree with defendants that the Mt Healthy analysis, as modified by Hopkins, is applicable to the instant case, we cannot agree with the defendant’s contention that summary judgment would have been proper under that analysis. Defendants assume arguendo that plaintiff established a prima facie case under the act. They then maintain that the fact that the pab found good cause for the dicipline of plaintiff satisfied their burden of going forward with evidence that plaintiff was terminated for a legitimate reason. Fi*247nally, defendants maintain that, because plaintiff came forward with no facts suggesting that the reason was pretextual, summary judgment should have been granted. The flaw in this reasoning is found in defendants’ misplaced reliance on the pab’s decision as sufficient proof that the reasons for plaintiff’s dismissal were valid. The pab ordered plaintiff’s reinstatement and therefore must have reached a result opposite that urged by defendants, i.e., that plaintiff was dismissed without cause. Accordingly, the court did not err in denying summary judgment on Count vi of plaintiff’s complaint.

Defendants also contend that the trial court erred in denying their motion for summary judgment on Count vn of plaintiff’s amended complaint, his 42 USC 1985(3) conspiracy claim, since plaintiff failed to allge racial or class-based discrimination by defendants. Defendants are correct, as plaintiff concedes on appeal. See Griffin v Breckenridge, 403 US 88, 101; 91 S Ct 1790; 29 L Ed 2d 338 (1971). Summary judgment pursuant to GCR 1963, 117.2(1) should have been granted on this claim.

Finally, we need not address defendants’ challenges to the trial court’s denial of accelerated or summary judgment on plaintiffs wrongful discharge or due process claims. These claims (Counts i, iv, and ii) have been made moot by the pab’s decision to reinstate plaintiff with discipline.

Affirmed in part, reversed in part, and remanded for further proceedings as to Count vi. No costs.

Notes

We note that defendant municipal officers have no standing to challenge the rulings of the pab. See Hendricks v Sterling Heights Police & Fire Dep’t Civil Service Comm, 85 Mich App 646, 653; 272 NW2d 170 (1978), lv den 405 Mich 826 (1979), and Beer v City of Fraser Civil Service Comm, 127 Mich App 239, 243-244; 338 NW2d 197 (1983). Although Hendricks would further indicate that the county also lacks standing to seek judicial review of the pab decision, like the Beer panel, we decline to so hold. Accordingly, we confine our discussion of this issue to the county.

The circuit court correctly determined that the pab is not an administrative agency subject to judicial review within the meaning of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Righter v Adrian Civil Service Comm, 1 Mich App 468; 136 NW2d 718 (1965), lv den 377 Mich 696 (1966). See also, Hanselman v Wayne Co Concealed Weapon Licensing Bd, 419 Mich 168; 351 NW2d 544 (1984).

The county, citing several cases, urges this Court to disregard the reasoning of Robertson. We decline to do so. The cited cases are distinguishable either because the right to review was available by statute or because they were brought as original actions; thus they are not persuasive. To the extent that Justewicz v Hamtramck Civil Service Comm, 65 Mich App 555; 237 NW2d 555 (1975), conflicts with Evans, Viculin, and Robertson, we decline to follow that decision.

Our holding does not mean that the actions of the pab may never be subject to judicial review. Under the proper circumstances, review may be had by an original action for an order of superintending control. See 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 74.



Concurrence Opinion

Shepherd, J.

(concurring in part and dissenting in part). I agree with my colleagues on the Whistleblowers’ Protection Act portion of the opinion. I disagree on the question of whether the circuit *248court had jurisdiction to entertain the appeal from the decision of the Personnel Appeal Board (pab).

In Fort v Detroit, 146 Mich App 499; 381 NW2d 754 (1985), we held that there was no legislatively created avenue of direct appellate review from decisions of municipal civil service commissions but we indicated that the appropriate remedy would be an action for superintending control in circuit court. We stated in Fort that where the aggrieved party filed an independent civil action and not a claim of appeal, the avenue of superintending control would be open. I am satisfied that the aggrieved parties in this case, the defendants, were properly granted leave to appeal and that the subsequent order of the circuit court dismissing the appeal for lack of jurisdiction was erroneous. Although there is no right of direct appeal, any proceeding which seriously affects or wrongfully divests private rights must necessarily be open to review in some form. See The First National Bank of Detroit v The E T Barnum Wire & Iron Works, 58 Mich 315; 25 NW 202 (1885). Due process applies to any adjudication of important rights. While I do not believe the parties have a direct right of appeal, it is clear to me that they are entitled to at least the opportunity to seek some form of discretionary review under Const 1963, art 6, § 28.

There is some authority for the proposition that this constitutional provision allows application for leave to appeal from such decisions. In Evans v United States Rubber Co, 379 Mich 457, 461; 152 NW2d 641 (1967), the Supreme Court wrote:

We do not read the above language, "shall be subject to direct review by the courts as provided by law” to mean that in each such case review shall be compulsory or as of right upon its being *249invoked by either party but only that review shall be had when, in the exercise of judicial judgment and discretion, the court shall, on application, so determine, or when so provided by law. [Emphasis supplied.]

In Viculin v Dep’t of Civil Service, 386 Mich 375, 392; 192 NW2d 449 (1971), the Court wrote:

Article 6, § 28 does not guarantee a review in the nature of certiorari of "right” but an appeal of such a nature may require "leave” or be automatic as provided by law.

As indicated above, other authorities have stated that the proper method of reviewing the action of a municipal civil service commission is by way of superintending control. See Fort, supra, p 504 and cases cited therein; 11A Callaghan’s Michigan Pleading & Practice (2d ed), § 92.21, p 596; 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed) p 74. The order of superintending control supersedes the writs of certiorari, mandamus when directed to a lower court or tribunal, and prohibition. MCR 3.302(C). An order of superintending control enforces the power of a court over lower courts or tribunals. MCR 3.302(A). Because defendant seeks review of a question of law and review of a lower tribunal’s record, the appropriate superintending control order is in the nature of certiorari. Such a superintending control order is limited to review of judicial or quasi-judicial acts. Erlandson v Genesee Co Employees’ Retirement Comm, 337 Mich 195; 59 NW2d 389 (1953). This procedure allows review to determine whether an inferior tribunal failed to proceed according to the essential requirements of the law. Dyson v Detroit, 333 Mich 116; 52 NW2d 623 (1952). Such would include a failure to base a *250decision on competent material and substantial evidence where required to do so. An order of superintending control is discretionary, as was the writ of certiorari it superseded. Silver v Hamilton Twp Bd, 146 Mich 393; 109 NW 664 (1906); Marshall v Pech, 95 Mich App 454; 291 NW2d 78 (1980), lv den 409 Mich 904 (1980).

Whatever the name given to the relief sought, only discretionary review of a municipal civil service commission is permitted. Such is all the defendants sought in the instant case. On remand I would direct the circuit court to reconsider the matter as on leave granted and decide the case on the merits. Had the circuit court originally denied the application for lack of jurisdiction I would have allowed the circuit court to reconsider the matter on the assumption that it had jurisdiction and I would have simply directed the circuit court to decide whether it would grant leave. In this case, however, the circuit court already granted leave in the first instance and then reversed itself on the basis of lack of jurisdiction. Since I would hold that there is jurisdiction I would simply reinstate the original grant of leave to appeal so that the circuit court can decide the appeal on the merits.