Nummer v. Department of Treasury

Mich NUMMER DEPARTMENT OF TREASURY 16). Argued (Calendar Docket No. 97343. November No. 2,May Rehearing Decided 1995. denied 449 Mich 1204. grievance Department David Nummer filed a with the of Civil against Department Treasury, alleging Service the it promise employed breached a contractual that he would remain Division, within its Tax Fraud and that his transfer to the Discovery Division constituted discrimination on the basis of gender. recovery. race and A officer Em- denied The ployment appeal. Relations Board denied leave to The Civil subsequently approved Service Commission the board’s deci- Thereafter, plaintiff appealed sion. the the final determination Ingham court, of the commission the Court. Circuit The Harrison, J., Michael G. affirmed. Before the court its issued opinion, plaintiff brought separate the Ingham the against Treasury Department, alleging Circuit Court court, breach of and contract race and sex discrimination. The J., Giddings, James R. found basis of the commission’s plaintiff collaterally estopped bring- decision that the was from ing summarily complaint. either issue and dismissed the The Shepherd Appeals, Wahls, P.J., Court and and Cavanagh, JJ., part, holding reversed in collateral could (Docket 139570). applied in civil cases No. The defen- appeals. dant opinion by joined by an Riley, In Justice Chief Justice Boyle Brickley, Supreme and Justices Weaver, and Court held: plaintiff relitigating The is by barred from his claim estoppel. doctrine of collateral preclusion important 1. doctrines serve an function resolving disputes imposing finality litigation a state of parties previously where same have a full had and fair opportunity adjudicate By putting their claims. an end litigation, preclusion costly repetition, doctrines eliminate judicial resources, prolonged litiga- conserve and ease fears of agency tion. Whether the is determination made or court inapposite; avoiding costly repetitive is the interest and litigation preserving judicial as well as resources remains. case, estoppel, 2. The doctrine of collateral at issue in this Nummer v judgment applies question to the of fact essential where a final litigated actually and determined valid been has litigate opportunity parties judgment, had full have issue, estoppel. mutuality Because there preclude relitigation seeking basis of an on the to defendant is decision, requirements must be additional three administrative been must have the administrative determination satisfied: nature, appeal, right the adjudicatory a to and in must be there final Legislature make the decision must intended to have point appeal. on the third The of contention centers absent an element. 3.548(606X1)provides 37.2606(1); that the stan- MSA 3. MCL Rights appeal is from the Civil Commission dard of review assuming Civil Service Commission de that a review novo. Even Rights Civil Commission should be akin to a determination determination, fully adjudicated by plaintiff a is a whose claim appeal opportunity only the to is afforded the formal novo, the but is not afforded and receive review de decision raising complaint is the same claim. There to a new file multiplicity litigation legislative for encoun- no intent the in case. tered creations, developed and 4. Preclusion doctrines are Legislature Accordingly, is the law. the extended from common given statutory modify application its in a scheme. to strict free However, Rights any Act is devoid of statement the Civil it, apply preclusion to and no such rules do not traditional plain statutory the scheme. The can be inferred from intent Rights simply contemplates appeal language Civil an from the new, Commission, contemplate original in a action but does not i.e., court, guidance appeal provides in on direct circuit it new, nothing filing original says circuit court and about receiving in full in an adminis- circuit court after review appeal agency, subsequent and in circuit trative with a review beginning be true for claims first court. same should Civil Commission. Service Rights not exclusive 5. The Civil Commission does have Rather, jurisdiction claims. over discrimination Commission, Commission, Service circuit Civil case, jurisdiction. plaintiff In this court have concurrent adjudicate his claim to conclusion the Civil Service elected jurisdiction Commission and lost. Once a tribunal concurrent merits, any 606 mandates § has rendered decision on appellate subsequent review. in the form of relief is be Legislature Reading light is that the it clear § findings final in make the Civil intended to 448 Mich 534 and, appeal accordingly, an the absence of also must have intended make Civil Service Commission determinations appeal. Regardless final in the of an absence of whether an taken, appeal Legislature provided only remedy is has one appeal from an adverse determination: direct in the circuit appeal by very contemplates possibility court. An its nature reversal, new, certainly contemplate origi- but it does not nal action. Reversed. joined dissenting, Mallett, Justice Cavanagh, Justice apply

stated that the doctrine of collateral does not Legislature Civil Service Commission decisions because the abrogate intended Act to the common-law rules preclusion. A final determination the Civil Service Com- preclude employee relitigating mission does from dis- crimination issues in the circuit court. Generally, estoppel applies collateral to an administrative decision; agency’s however, agency final each be must assessed separately. given preclusive A will decision effect it where is nature, adjudicatory appeal, there is a method of it clear the intended it to be final in absence of an appeal. preclusion judicial creation, Because the rules of are a presumption preclusion apply statutory the of not will where a purpose contrary to the is evident. Rights The standard of review set in forth the Civil Act Legislature plaintiffs that indicates the intended to have an independent rights judicial review of civil claims in a forum. Allowing judicial proceeding plaintiffs pursue a when ad- an Commission, remedy Rights deny- ministrative in the Civil but ing plaintiffs adjudication by similar treatment when seek the goals Rights Civil Service Commission violates the of the Civil Rights Act. The Civil Commission does not have exclusive jurisdiction employees’ claims; over state discrimination the Commission, Commission, Rights Civil Service the Civil and the jurisdiction circuit court have concurrent when a state em- ployee rights jurisdiction asserts a civil violation. Concurrent legislative goal providing does undermine the of an inde- pendent judicial in determination a forum. Treating Commission and the Civil Service differently by unsupported language Commission is the or the give intent of the Civil Act. It would be anomalous to greater deference to the of the determinations Civil Service issues, regard agency Commission with to discrimination an only jurisdic- addresses discrimination as one of facet its tion, Commission, agency expressly than to the Civil remedy discriminatory a Because deter- treatment. created to eliminating primary agency dis- vested with

mination independent preclude an determination crimination does not forum, of judicial determination neither should the a preclusive Denying effect to the Civil Service Commission. recognizes discrimination determination Commission Service unique fulfills the a claim and nature of discrimination independent provide determina- an intent of the tion in a forum. Levin, writing separately, stated that factors Justice relitigation a distinguish of from cases which this case other justify recognizing exception might sought issue factual relitigation permitting estoppel of doctrine of collateral and race discrimination. issue sex action, rights unlike a Civil Service circuit court civil In a parties proceeding, to a determi- have a Commission (or judge). by jury The administra- of the factual issues nation decision-making adjudicatory, hearing process, while tive expedited, delib- with the formal and informal and contrast proceedings A in a court trial. new determina- erative circuit jury race court of the issue sex and tion circuit discrimination, thus, Judgments, as set forth in Restatement 2d, 28, quality in the be warranted differences would procedures as in the court of the followed circuit extensiveness compared followed a Civil Service to those proceeding. administrative service, ain circuit servant in the classified A state civil violated, rights asserting that his civil have been court action join seeking civil for violation of his cannot claims redress rights rights. Precluding civil a circuit court service rights hearing following on a a Civil Service Commission splitting grievance generally servants will result in state civil grievances, rights rights thus of civil and noncivil their claims assuring multiplicity litigation that the doctrine of cases, discourage. In some seeks to collateral rights griev- predicate a state civil noncivil factual servant’s may predicate a civil relate to the factual ance so grievance officer’s Civil Service Commission may findings rights grievance regarding decide the noncivil rights A circuit court civil action. factual issues central a choose will be forced to well-informed and advised civil servant claims, grieving, rights forgo, by the noncivil either rights against protect an adverse the civil claim order to hearing regarding finding by officer Commission a Civil Service action, rights the civil run an central to a circuit court issue Mich finding by grievance filing regarding risk of such an adverse a rights the noncivil claims. judicially Preclusion is a created doctrine that serves to litigation. eliminate redundant It not be should extended to a litigation case which the is not redundant. A state civil rights grievance who servant has both a civil a and noncivil rights grievance should be able to seek a Civil Service Commis- hearing rights grievance running sion of the noncivil without preclude risk the decision of that claim will a circuit rights employee court if civil claim even does not file a grievance regarding the civil service discrimination claim. majority holding The should limit its to the facts of case grievances involving rights where a both civil a noncivil rights grievance claim were filed. It add should that where a claim, finding does not involve civil a service a discrimination regarding preclude rights another claim will not a civil action. may person employed To do fail to so mean a in the state filing legitimate classified service will be constrained from grievances, nondiscrimination lest an adverse determination rights judicial economy a foreclose civil action. Neither nor the estoppel requires of inexorably doctrine collateral the conclu- judicial economy outweigh sion that the of needs the needs and rights persons in the state classified service to exercise their grievance rights civil service potentially sacri- without ficing rights Rights their and remedies under Civil Act. rights litigation person It is a feature claiming that a rights a multiplicity violation of civil has of remedies. Nei- ther the framers of the constitution nor the in- employee tended that an in the state civil service would be required right to elect which to assert and be constrained to forgo right protect policies underlying one another. The preclusion require doctrines of collateral do not applied rigidly that those doctrines be so as to such force an Rather, they oblige protection election. employ- of both a state grievance rights right ee’s bring civil service and the a civil rights action in the circuit court. Locating, dissent, right as does source to an independent determination of a civil claim in § only appeal overlooks that 606§ concerns from Commission. source of the to maintain separate action in the circuit court is not 606 in article but article 8 the Civil Act. Such an action does not seek appellate review of decision appellate the circuit court. Nor it does seek review circuit court of a decision of the Civil Service It Commission. Treasury Nummer Opinion of the Court action, by jury, original separate, triable a circuit court a properly pursuant cannot article and commenced seeking appellate analogized review 6 action to an article of Civil Commission. a decision circuit court of jury is not triable before be made in an action The record to limited, limited, made before the record cannot be and Commission. tribunal such as another (1993) 695; App reversed. 504 NW2d 200 Mich Green) (by for the A. & Green Christine Green plaintiff. Attorney Kelley, General, L. Thomas

Frank J. Gary Casey, General, P. Gordon Solicitor Attorneys General, Szczubelek, Assistant John F. for the defendant. case, decide whether a In this we

Riley, by the Civil Service final decision formal and pre- rejecting claim a discrimination subsequently relitigation of that issue cludes hold that collateral in circuit court. We filed action relitigation this claim. Accord- of bars ingly, Court of of the we reverse the decision Appeals.

i who is white male Plaintiff David Depart- Treasury hired as an auditor was ment intelligence in 1970 and transferred to in 1978. Plaintiff unit the Tax Fraud Division until Tax Division in the Fraud remained when ferred were trans- Tax Division auditors all Fraud Discovery newly Division formed Treasury. Department Plaintiff ob- within grievance jected with and filed a to the transfer grievance Department His of Civil Service. recovery: alleged first, two theories Department breached a contractual 448 Mich op Opinion the Court promise that he would remain within the Tax and, second, Fraud Division that the transfer con- stituted discrimination on the basis race and gender provisions in violation of the civil service Michigan 11, § 5, set forth in art tion.1 of the Constitu- 17, 1988, On June the civil service offi- recovery cer denied on both theories. Plaintiff appealed Employment the decision to the Rela- Board, tions which denied leave.2 The Civil Service subsequently approved reviewed and Employment Relations Board’s decision. Plain- appealed tiff then the final determination of the court, commission to the circuit which affirmed the commission’s determination. plaintiff’s appeal pending

While was circuit opinion court, and before that court issued its affirming plaintiff commission, the decision of the filed new action in case, circuit court. The second plaintiff’s Discovery also Division, based transfer to the of alleged breach contract and race and sex discrimination in violation of the Civil 3.548(101) seq.; seq. Act. MCL 37.2101 et MSA et 1963, 11, 5, Const art states that the Civil § Service Commission power “regulate employment shall have the all conditions in the service,” appointments, promotions, classified and that "[n]o demo tions religious, or removals in the classified service shall be made for partisan 1963, or racial considerations.” Pursuant to Const art § authority promulgate the Civil Service Commission has the rules to addressing plaintiff’s effectuate the of 5. mandates In discrimi allegation, nation of Department commission assessed whether the Treasury 1-2.1, violated Civil Service Commission Rule which in pertinent part states: person against No seeking employ- shall be discriminated

ment, employment, from, being appointed promoted, any or or in condition of service, any separation in the classified or there- race, color, religion, origin, ancestry, because of national handicap, partisan considerations, age or sex. 2The board appeal that no meritorious basis for an ”conclude[d] Hearing the Grievance lant.” Appel Officer’s Decision has been shown Nummer v op Opinion the Court responded the second

Defendant alleging that determination that commission’s obliga- any contractual not breach the transfer did not for discrimina- the transfer was tion and collaterally estopped tory redetermination reasons The circuit the circuit court. these issues in collaterally plaintiff agreed es- was court bringing topped the contract issue from either the com- dismissed issue and the discrimination plaint. appealed in the Court the dismissal Plaintiff Appeals. Court held that the contract issue collaterally estopped,3 collateral es- but that was toppel rights apply claim. The to the civil

did not estop- apply Appeals collateral refused Court pel it because believed to the issue discrimination rights Legislature, arena, in the civil principles of collateral to set aside "chose estoppel countenance a in civil cases and to litigation.” App multiplicity 695, 700; 200 Mich of (1993). appealed, Defendant and we 504 NW2d 724 granted leave.4

ii important preclusion an doctrines serve resolving disputes by imposing a state function in parties finality litigation the same of to where opportunity previously to a full and fair have had Meijer, adjudicate Storey Inc, 431 their claims. (1988). By putting 368, 372; 429 NW2d 169 Mich preclusion litigation, doctrines elimi- an end to nate judicial costly repetition, resources, conserve litigation. prolonged Whether and ease fears agency is an court is made determination 3 us. The contract issue is before 4 (1994). 934 445 Mich 448 Mich 534 Opinion Court inapposite; avoiding costly the interest litigation, repetitive preserving as well as resources, still remains. El- Univ Tennessee v liott, 788, 798; 3220; US 106 S Ct L92 Ed 2d (1986).

At issue in this case is doctrine of collateral estoppel. Generally, estoppel "[f]or collateral apply, question judgment a of fact essential to the litigated actually must have been and determined judgment. addition, valid and final In parties opportunity same must have had a full litigate mutuality issue, and there must be estoppel.” supra Storey, 373, n at 3. seeking pre-

However, because defendant relitigation clude on the basis of an administrative requirements decision, three additional must be satisfied. The administrative determination must adjudicatory provide have been right in nature and appeal, and the must have intended to make the decision final absent appeal. Analysts Appraisers Accountants, Senior & Detroit, Ass’n v 457-458; 399 Mich 249 NW2d (1976); Murphy, Roman Cleanser Co v 698, 703-704; Mich 194 NW2d 704 See also Storey, supra at 373. seriously general It is not contested that

requirements estoppel of collateral are met and requirements that at least the first two for admin- istrative Commission, are satisfied. In the Civil Service

plaintiff alleged Department that the violated Civil Service Commission parties Rule 1-2.1.5This claim between the same involved similar factual issue as that which was actually litigated and decided in the Civil Service plaintiff represented Moreover, Commission. was agency; opportunity counsel before the had the to, and fact, did in witnesses; call and had a full

5See n 1. Treasury Dep’t op Opinion the Court addition, In he of his claim.6 on the merits Employment

appealed Rela- to the this decision Commis- then to the Civil Service tions Board and sion. clearly proceeding, therefore, was not sum-

This Storey, supra. mary Furthermore, it in nature. See plaintiff disingenuous argue did not have to is a full present opportunity or that the to his claim proceeding adjudicatory ciently is not suffi- nature of the proceeding.7 Indeed, nei- to a akin proofs required suggests party in the ther Rights agency differ from Civil determination court. Act claim circuit appeal, plaintiff cer- to In terms of the opportunities. tainly In afforded numerous was intra-agency appeals, he ob- to addition tained review in the two plaintiff Thus, the circuit court. appeal, appeal, opportunity in fact to did had part and, hence, of administra- satisfies the second estoppel. tive point in this case centers on of contention estoppel, i.e., of administrative

the third element that intended decision appeal. Plaintiff and Justice final absent 3.548(606)(1), 37.2606(1); rely MCL MSA Mallett provides review on standard which appeal "An from the Civil Commission: appeal court shall be reviewed the circuit before assuming Service that a Civil de novo.” Even be akin determination should Commission plaintiff determination, a Civil Commission seriously full he not have a not contend that did Plaintiff does develop present opportunity his case before fair Service Commission. only today the issue decided would We wish to make clear that hearing. agency v Mutual Aid formal See Strachan decisions affect (1979), Club, Inc, held that Neighborhood in which we 407 Mich & evi for "insufficient decision dismiss a Civil adjudicatory subse in nature and thus does bar was not dence quent proceedings in circuit court.” 544 448 Mich 534 Opinion of the Court fully adjudicated by whose claim is a formal hear- ing only opportunity appeal afforded the review, decision and receive a de novo but is not complaint raising afforded the to file a anew plaintiff appealed case, the same claim. In this the circuit court and received review under a competent, material, and substantial evidence Dep’t standard.8 Viculin v Mich appeal Service, of Civil 386 (1971). 375, 392; 449 NW2d While this plaintiff pending, new, was decided to file a original action in the same court. This new action assigned judge was to a different who had to decide setting. issues the basis of the same factual absolutely legislative There is multiplicity no intent for this litigation.

hi Preclusion doctrines are creations, devel- oped and extended from the common law. Accord- ingly, Legislature modify is free to strict its application any given statutory scheme. 2 Davis (3d ed), Pierce, & § 13.3, Administrative Law p However, 256. Act is devoid of any preclusion statement traditional do rules apply statutory Hence, this scheme. difficulty determining lies in whether an intent statutory can be inferred from the scheme. Davis supra. doing Pierce, so, & In it must be remem- Legislature legislate bered that is deemed to understanding adjudica- with an of common-law tory principles. Co, Garwols v Bankers Trust (1930); Mich 424-425; 232 NW 239 Astoria merits,” This standard of review is not "on the but it is the one provided by people Michigan, of the State of and one that change. event, any plaintiff has not seen fit to In does not inappropriate contend that this standard of review'was and that a de imposed novo review to opinion should be instead. Justice Levin’s fails acknowledge part of the record. Post at 581-582. v Opinion of the Court Solimino, 107- 501 US L & Ass’n Federal S 2166; 115 L Ed 2d 108; 111 S Ct A has come date, this Court To the closest supra. Storey, making inwas a determination such by the determination whether a We considered pre- Security Michigan Employment regarding relitigation of same issue cluded wrongful subsequent civil suit for in a dismissal discharge employment In contract. and breach modify legislative traditional intent terms preclusion 421.11(b)(1); principles, MCL found we 17.511(b)(1)controlling. provides: It MSA act, such information provided in this Except as any in shall not be used and determinations or administrative proceeding any before court or a party is a unless the commission tribunal proceeding, or unless complainant in the action or fraud, proceeding, prosecution civil used for the proceeding pursuant to sub- legal or other division 11(b)(1) clearly Accordingly, Court held "that prohibits unambiguously in- the use of mesc subsequent determinations formation and party proceedings or com- unless mesc Storey, supra plainant at 376.9 in the action.” conclusions, have similar Federal cases reached slightly explicit direction from Con- less but under supra, example, gress. Solimino, the Court For legislative policy support that found in the inferred Court also quick system designed unemployment that was to render results the presumably litigate fully the issue. In other a disincentive to create words, policy legislative imposing preclusive effect would frustrate burdening the by "delaying the determination of benefit compensation system.” unemployment 378. Id. at 448 Mich Opinion of the Court age held that an discrimination claim10 is not precluded by judicially finding by unreviewed agency. state administrative The Court refused to rely negative any Congress intent, i.e., did abrogating not make a clear statement common- preclusion preclusion applied, law and thus but any instead considered whether to be inferred from the there was intent statutory Looking scheme.11 filing requirements statute, to the required of the which

exhaustion remedies with state author- filing court, ities before in federal the Court held congressional abrogate there was intent preclusion principles. 501 US 111. The Court rea- filing requirements "plainly soned that the assume possibility of federal consideration after state agencies have finished theirs.” Id._ Congress entitled to Id. at 795. The Court US The Court then turned to its decision in Chandler v found a reviewed USC ment findings explained: commenced under State or local law rule of enacting racial discrimination claim under title VII. 840, 848; In other et 29 use 621 Opportunity legislative and orders [the to write such a preclusive preclusion words, 96 S Ct statute].” intent 2000e-5(b), Commission "must seq. made effect in Title VII actions in federal court.” Id. explained 1949; would be consistent with indicating Elliott, supra dispositive question provision 48 L Ed 2d 416 State or local authorities in which that "it would make little [employment provided give if state preclusion at 796. In 'substantial (1976), that the is "whether a common- discrimination] agency findings Initially, Congress’ should not Elliott, where Roudebush, Equal Employ- weight proceedings the Court the Court the sense intent apply to final law.’ Court were for ” legislative history "The of the 1972 amendments reinforces plain meaning Congress of the statute and confirms that employees intended to accord federal the same to a trial [following proceedings] enjoyed de novo administrative as is private-sector employees employees governments of state political Rights subdivisions under the amended Civil Act [Elliott, supra of 1964.” at 795-796.] Interestingly, provision. Age Act at issue in Solimino did not contain explained The Solimino Court this omission was immaterial weight” provision, filing because ments, require- the "substantial like the support finding preclusion both indicate and should apply. not 501 US 112. Treasury Dep’t Nummer v op Opinion the Court

B nothing Reviewing Rights Act, there is disposi- provisions remotely found similar to the Storey legislative in either Soli- intent tive appeal provides: merely "An mino. Section 606 de novo.” the circuit court shall reviewed before provi- presented by express Clearly, intent provision Storey from is far the instant sion providing appeal from the an novo.” be reviewed de The Commission "shall proceedings. says nothing about use in later latter appeal simply contemplates plain language not, Commission, but does from the Civil imagination, contemplate any new, stretch of the original action in circuit court. fact-specific holdings

Moreover, in federal deci- inapposite like Solimino are because sions system requires of administra- exhaustion federal review the courts. Kremer tive remedies before Corp, 461, 469; 456 US Construction v Chemical 2d Where 1883; Ct 72 L Ed 102 S preclusive required, granting effect exhaustion agency the role of decision would undermine to an prohibiting laws the courts the enforcement of discriminatory Michigan law, treatment. require clearly hand, exhaustion of does other filing before circuit administrative remedies Corp, e.g., Pompey See, Motors v General court.12 Commission, In defining people provided: scope powers entrusted to the Civil Nothing to shall construed dimin- contained in this section be legal right any party of to direct and immediate or ish the equitable art remedies in the courts this state. [Const 5, §29.] 548 448 Mich 534 Opinion of the Court (1971);13 537, 558-560; 385 Mich NW2d App Service, Marsh v of Civil 142 Mich (1985). 562-563; 370 NW2d 613 provision statutory at issue in Solimino plain- confirms this difference. It mandates that a proceed agency filing tiff first in the state before Accordingly, the courts. it a creates reasonable preclusion apply. inference that rules should not respect The same cannot be said with to the Michigan merely provides statute, however. It appeals from the Civil Commission should provides words, reviewed de novo. In other it guidance appeal says on direct in circuit court and nothing filing original new, about a receiving circuit court after full review agency, subsequent appeal administrative with a and review in circuit court. ground

The dissents would break new in Michi- gan litigation14 by countenancing greater multiplicity law a arguably

than was ever intended 13Reviewing records, 559, 19, the constitutional at convention id. n abundantly people give it becomes clear that intended a to plaintiff administrative remedies. proceed directly exhausting to court without However, neither the convention notes nor give Pompey any preclu this Court’s decision in indication that the Hence, apply. system sion doctrines would not unlike the federal intent, apply, express implied, where exhaustion rules there no preclusion employed. should not be opinion granting preclusive Justice Levin’s contends that effect to might litigation a Civil Service Commission decision increase because plaintiffs effect claims, likely split denying preclusive are their whereas “might, particular cases, actuadly conserve re opinion, however, grasp sources.” Post at 575 and 579. The fails important concept mutuality estoppel. Estoppel must work ways. Trucking Co, Excavating both See Howell v Vito’s & 386 Mich 37, permitting 43; position NW2d Our will conserve resources plaintiff offensively use a favorable Civil Service damages Commission decision in circuit court to obtain or remedies not available before the commission. Justice Levin’s view would require plaintiff receiving ruling a favorable in the Civil Service relitigate reaching damages Commission to or other the entire claim before remedy Hence, holding our determination. reduces the multiplicity to litigation, opinion actually and Justice Levin’s serves it. increase v Opinion op the Court

Legislature.15 However, at in the statutes issue support Storey do not such an and Solimino both analysis employed as is Justice inferred intent considering an action Even if we were Mallett. begun Rights Commission, it first in the Civil such intent from a be unreasonable to infer would statutory provision stating the standard review plaintiff appeal. question Indeed, without beginning in Commission and appealing court, he where receives to the circuit decision, file a not be entitled to an adverse would original new, in circuit court. Preclusion certainly there would bar the action because legislative multiplicity would be no intent for this litigation resources. waste beginning claims in the same should be true for Civil Service Commission.16

c briefly MSA 37.2803; MCL The dissents cite 3.548(803) support 5, § 29, for and Const art apply. finding preclusion Both the in does provisions employ and the constitutional statute the same language which, effect, in states that nothing or the Civil Act in constitution any ”shall be construed diminish ground on not raised The dissents would also break new an issue Fabricating Mfg by overruling & in this Court Walker Wolverine (1986), Co, Inc, holding 586; 296 appeal 425 Mich 391 NW2d agency in proceeding from the or novo either on direct de new, original to the record made before the action is not limited opinion express agency. on an issue not before this We elect not to an Court. "holding opinion argues our that we should limit Justice Levin’s rights involving grievances a civil facts this where both case this is noncivil were filed.” Post at 576. Because and a claim only presented, we intimate this case is the factual context which applied estoppel could be so far. We do not decide whether collateral day hypothetical example. We for another Justice Levin’s save under that discussion. 448 Mich 534 Opinion op the Court party legal equitable to direct and immediate remedies the courts of this state.” provide analy- What the dissents fail to do meaning However, sis of the of this clause. Pompey, supra, engaged Court extensive analysis meaning of its and concluded that provision permit clear intent of this towas claim- ants to seek relief in the courts without first exhausting administrative remedies. Id. at 558-560, Rights words, n 19.17In other does not have exclusive Commission jurisdiction over discrimi- jurisdic- claims, nation but instead has concurrent supra. tion with the Marsh, circuit courts. See also Assuming provision applies this to the Civil imposing preclusion Commission, Service would implicate prohibi- not offend this or clause even its tions in Commission, this case.18The Civil Commission, the Civil Service and the circuit court jurisdiction still have concurrent over discrimina- supra. adju- Marsh, tion claims. Plaintiff elected to give right This amendment has been offered ... to a basic any go try to citizen to to the courts of this state to his own Any up case. require commission established could so set their they loosely ments that if were drafted too without basic thought them, afraid, behind I am the state an would force go through individual to such a commission before his firmly They might could be established. exhaust the individual trying their feels that action be rights by saying to secure his that he must first exhaust legal remedy. any person I think it is most vital that who wronged he has been and who he feels has cause of entitled have his case in a court tried of this state immediately ready go, always if he is that we would have basic'right preserved every this of trial citizen. Official [2 Record, 1961, p Constitutional Convention 1946.] 18Interestingly, Justice Levin relies on this Civil Commis provision support proposition person receiving sion that a new, adverse Civil Service Commission determination has a ato jury determination of the issue in circuit court. at Post 578. Not only provide provision does the constitution not a similar for Civil decisions, import Service Commission but the clear of this section is only jurisdiction. Moreover, to allow for concurrent Justice Levin’s position Walker, supra, serves to overrule n 15 an issue not before Court, explanation analysis. no with Opinion of the Court in the Civil Service

dicate his claim to conclusion of concur- and lost. Once a tribunal Commission jurisdiction on the has rendered a decision rent subsequent any merits, relief § 606 mandates that appellate form of review.19 would be question Hence, § 606, answers the Legislature intended "it is clear that whether in the absence of the determination final to make Reading appeal.” Storey, supra § 803 in at 373. an light Legislature §of it is clear that to make the Civil intended findings appeal and, of an final the absence accordingly, must have intended to make also final in the Service Commission determinations appeal. Regardless of whether an of an absence appeal Legislature provided only taken, has remedy determination, i.e., one from an adverse appeal appeal An its direct the circuit court. contemplates possibility very of rever- nature contemplate certainly new, sal, original it does not but any- intended action. If the directly. thing else, it would have said so more IV reject Additionally, that 2 Restate- we the notion Judgments, pp 266-267, 2d, § contem- ment plates abrogation preclusion the in- under an discussing scope statutory In scheme. stant the commentary provision, that this indicates apply would not "when a determination section an administrative being subjected to

tribunal is p judicial a, 268. This is Comment direct review.” logical given is a that "such a review conclusion litiga- original administrative continuation of the tion and The in contest. the final outcome is still 19 plainly provides "appeal[s Section 606 from] [Civil added.) (Emphasis shall be reviewed de novo.” Commission] 552 Mich op Opinion the Court judicata appellate of res do rules not foreclose the just, they prevent appellate contest, as do not reversing court from a lower tribunal.” Id. Certainly, technically the instant case fits within scope appeal. §of the However, 83 because it is on not direct

relying provision addressing on a a di- appeal support finding legislative rect abrogate preclusion principles intent seems simply sup- counterintuitive. Section 83 not does port finding. illogical such a It is believe provision displace that would the situation from scope of the finding rule could used as basis for original permissible. new, commentary20 accompanying § and its controlling illustration confirm that is example contemplates this case. The a statute " provides provided which 'the remedies under this statute are in addition all other remedies avail- employee prospective able to an affected ” added). employee.’ (emphasis case, Id. In this operable provision provides appeal that an shall be explicit Obviously, reviewed de novo. cumulative presented example, remedies, as in the and de appeal, presented novo are not case, review on as is in this remotely Accordingly, legisla- similar. by § tive intent envisioned 83 is not satisfied in this case. appear question

The dissents to confuse the directly presented question to this Court. The is not whether the standard of review direct appeal should be de novo on the record instead of commentary statutory The relevant states that "[t]he scheme may contemplate [subsequent] required tribunal to make question, though its own determination the issue in even the issue previously litigated has been 2 another forum.” Restatement Judgments, 2d, 83, h, p § comment 280. 553 Nummer v Opinion of the Court

competent, material, evidence.21 and substantial question Legis- supra. Viculin, The is whether the abrogate pre- well-established lature intended to plaintiff new, files a doctrines when a clusion original agency and circuit action after adverse point Specifically, conten- court decisions. tion Legislature intended a on whether the centers determination to be final Civil Service Commission in the absence of an question, appeal.22 To this Legislature undoubtedly yes, in- is answer tended it to be final. regarding laws discrimina- There are numerous tion, of which is the constitu- the most obvious provide the There, framers saw fit to tion.23 authority Civil Service Commission with resolve discrimination claims employment.24 occurring in state Desiring protection to extend this private employment, the framers then created 5, §29, art which created Const Rights light provisions, it In of these .Commission. delegates contemplated becomes clear that constitutionally two created administrative bodies would hear similar discrimination claims. 21Indeed, plaintiff argue it is not before this Court because did not appeal in the first circuit court action that a de novo standard decision, finally, applies, appeal did not did not make a provide in this The dissents would this similar contention Court. procedural posture despite remedy despite the this case and the the so, doing directly present question In failure to to this Court. remedy plaintiff coming would sanction an additional for a dissents from the Civil Service Commission. 22 searching legislative for in It must be remembered that when tent, legislative judicial duty simply "to will as we our is construe it, justice regard to the find without to our own views as wisdom Comm, 69, 81; Corp & Securities 369 Mich the act.” McKibbin v (1963). NW2d legislate "knowledge presumed to with of and existing upon subject regard . . . .” Co laws the same Lenawee Adrian, 52, 64; City 209 Mich 176 NW & Electric Co v Gas 11, 5, appoint expressly mandates Const art "[n]o ments, promotions, . . . demotions or removals shall be made for religious, partisan racial or considerations.” 554 448 Mich 534 Opinion of the Court Against backdrop, delegates only however, this the provided originating in de novo review for claims Rights Commission.25 Legislature

When the the enacted pursuant requirements Act to the set forth simply 1963, §1, 5, 29,27 Const art 226 it § and art procedures already existing followed the under the Legisla- constitution. Both the constitution and the provided appeals ture that from the Civil provid- novo, Commission ing be would de while also parties right have a direct immediate changing remedies the courts. Without already provided substance of that as a constitu- right,28 presumed Legis- tional it must be adopted lature the intent the framers.29 Review- 5, 29, provides: "Appeals See Const art which § from final commission, including orders of the refusals court cease and desist orders and complaints, issue shall be tried de novo before circuit added.) having jurisdiction provided by (Emphasis law.” person equal protection laws; No shall be denied person any enjoyment nor shall be denied the of his civil or political rights thereof because of against or be discriminated the exercise race, religion, origin. or color national legislature implement by appropriate legisla shall this section [Emphasis tion. added.] duty It shall be the of the commission in a manner which prescribed may investigate alleged law to discrimination against any person religion, race, because of color or national origin enjoyment rights guaranteed by in the of the civil law constitution, equal protection and such civil and to secure the rights [Emphasis without such discrimination. added.] 28See 606. § is, says present reality, The intent that Justice Mallett express implied abrogate preclusion principle. an intent Instead, merely intent inferred from 606 and 803 was § § obvious, i.e., recognition restatement the constitution already words, rights afforded these to discrimination claimants. In other Legislature nothing or, matter, even if the said for that said opposite constitution, already provided of that in the it would right have no effect on the to de novo review or the to direct previously and immediate relief in circuit court. These were 5, 29, provided power in Const art and the has no Nummer v Opinion of the Court plain language

ing debate and the the convention simply provisions, the intent is as follows: of these Appeals Commission shall be from the Civil parties not exhaust administra- novo and need de proceeding court.30 to circuit tive remedies before

vi Finally, not share the dissents’ fears we do preclusion regarding consequences could have The dissents on the Civil Service Commission. discourage preclusion claim- would contend that filing from before the Civil Service Commis- ants right remedy losing the to a the sion in fear of addition, Mallett maintains In Justice courts. greater preclusion create a incentive would government actively claim, for the to contest this advantages thereby "undermining the of informal- speed ity, cost, in the of such dis- and resolution putes forum.” Post at 567. in the administrative forget appear to that a claimant

The dissents pursue to a discrimination claim: has three forums Commission, Civil the the Civil Service Moreover, Commission, the circuit court. Clark, rights. impede constitutional Comm to Mich these 717, 726; 212 NW2d Cooley long explained ago: As Justice terms, plain unambiguous in statute is its Where the They may give nothing obey it. courts have to do but legislative expressions interpretation and reasonable sensible obscure, they those have no to distort which are which are clear and but import intelligible. The fair and natural law, employed, subject matter of the is the terms in view of govern. . . . what should constitutions; especially applicable for These rules are them, people, passing upon do not examine their clauses meaning, but a secret or a double with a view to discover import accept meaning designed of the words as the most natural and obvious conveyed. [People Twitchell v ex rel to be (1865).] Blodgett, 13 Mich 167-168 448 Mich 534 Dissenting Opinion by Mallett, plaintiff has not asked this Court to alter standard of review for discrimination claims aris- ing any in the Civil Service Commission.31 In Storey, event, pre- unlike in which we considered proceeding clusion in the context of the mesc unemployment benefits, the Civil Service Commis- body. sion is not such a fact, limited In it is the constitutionally agency designed created to deal employment. with all facets of state If this creates alleged consequences espoused by dissents, appropriate body remedy is the problem.

VII plaintiff estopped relitigat- We find that from ing this discrimination claim in circuit court. With requirements all of administrative being including satisfied, the intent to make the appeal, decision final in the absence of an we greater multiplicity litiga- refuse to sanction a anything currently provided by tion than statute unnecessarily waste resources. We re- Appeals. verse the decision of the Court of Boyle C.J., and JJ., Brickley, Weaver, and J. Riley, concurred with (dissenting.) disagree J. We Mallett, with the

majority and would hold the doctrine of col- estoppel apply lateral does not to Civil Service Commission decisions because in- abrogate tended the Civil Act to the common- preclusion. law rules of affirm Thus, we would Appeals the decision of the Court of and allow the plaintiff relitigate issues of discrimination in

31 part See v. Treasury Dep’t 557 v by Dissenting Opinion Mallett, following

circuit final determination court Civil Service Commission.

i Generally, estoppel applies to an ad- collateral agency’s final ministrative decision. Lilienthal v City Wyandotte, 604; Mich 837 286 282 NW (1938), Storey Meijer, Inc, 368, and v 431 Mich (1988). 372; 429 NW2d 169 The decision is "conclu- parties, privies, sive of the of the or their in any all actions or in the other suits same or other jurisdiction points tribunal concurrent proceeding.” in in the and matters issue first supra agency Lilienthal, However, at 616. each separately, and must be assessed ment no blanket state- regarding estoppel collateral can made for agencies.1 all administrative plaintiff’s In order determine whether estoppel, barred action is collateral we must examine Civil Service final Commission’s deci- light general estoppel require- sion in collateral three-part adopted ments2 and the test in Roman Murphy, 698, 703-704; Co v 386 Cleanser Mich 194 (1972), applied recently NW2d 704 more and 1 estoppel Trucking Collateral is a creation. Howell v Vito’s (1969). Co, 140, Excavating 146; App & 20 Mich NW2d Its general purpose is to "strike a between balance the need eliminate repetitious litigation affording and needless and the interest liti gants adjudication and fair a full the issues involved their Storey Inc, supra 372; Accountants, Meijer, v claims.” at Senior Detroit, Analysts Appraisers 457-458; & Ass’n Mich NW2d 121 requirements general collateral are set forth in 1 2d, 27, 250, Judgments, p Restatement which states § "[w]hen actually litigated issue of fact or law is a valid determined judgment, judgment, final and the determination is essential subsequent the determination is parties, in a a different between conclusive on the whether same or claim.” This Restatement Detroit, adopted supra definition was in Senior Accountants v at at time it 68 of but definition was was defined the Restatement. The § moved to 27 in the Second Restatement. 448 Mich Dissenting Opinion Mallett, Storey Meijer, supra. Inc, v The will decision be (1) given preclusive if effect the administrative (2) adjudicatory naturé, is determination there (3) appeal, is a method of it and is clear the agency intended the decision be appeal. final in the absence of an Id. at 373. prong Storey assessing test,

The first of the agency’s whether an administrative determination adjudicatory requires comparison is nature, similarity agency’s procedure between the the Judgments, and that a court. 2 2d, Restatement p § 83, b, comment 268; Pierce, 2 Davis & Adminis- (3d ed), p § 13.3, trative Law 250. majority, Like the we do contest adjudicatory commission’s determination in na quasi-judicial ture. The commission is a adminis agency constitution, trative created and the specific determination is similar numerous re spects judicial proceeding. to that of a Viculin v Service, 375, of Civil 386; 386 Mich (1971), citing People Clardy NW2d 449 ex rel (1934), Balch, 268 Mich 200; 255 NW 762 Fredericks, In re 266; 285 Mich 280 NW 464 employee right repre has to by counsel, sented and the commission has the authority subpoena require witnesses and production of addition, documents. In the em ployee right has the to examine and cross-examine employee witnesses, has the to submit point finality exhibits,, and there is a definite proceedings. Although proceedings before may commission not be as as extensive those employed by plaintiff filing court, a claim rigidity judi with the commission trades of a informality, simplicity, cial tribunal for the rapidity of an administrative determination. There is no indication that the differences between 559 Nummer v Dissenting Opinion Mallett, J. proceeding judicial hin- and a

commission present ability discrimination claim. the to der requires prong Storey the test second The appeal available, but is not be that a method appeal taken. an was with whether concerned While an actual for an fect,3 appeal necessary in order is not given preclusive agency ef- to be decision pursued appeal. plaintiff his in this case Again, commission not contest we do satisfy aspect procedures Michigan test. The of the final commission de- Constitution allows appealed Const to the circuit court. cisions to be 6, § art 28. disputed in this is case The critical issue rights determina- whether the commission’s prong is, test; that of the tion fulfills the third enacting Legislature, in whether abrogate the traditional Act, to intended preclu- preclusion.4 Because the rules rules of judicial creation, Truck- Howell v Vito’s are a sion 3 2d, 83, a, Apply pp Judgments, 267-268. comment 2 Restatement unappealed agency ing estoppel decisions is not a novel to collateral Accountants, concept. supra whether at we addressed In Senior unappealed Employment decision collater Relations Commission an ally estopped subsequent We held action in circuit court. suing "damages” plaintiffs under a are barred from for estoppel theory by of collateral the doctrine

breach of contract because necessary questions for determination of fact "damages” by identical in this case would be the circuit court Michigan already questions Em- determined of fact to ployment improper concluding pay” was "back Relations Commission this case. appeal opportunity plaintiff requirement have the is that the advantage opportu- decision, plaintiff of the takes the nity. not whether 4 preclude determining agency reliti determinations whether When forum, United gation claims in a federal of civil Congress consistently Supreme intent of examines the Court States enacting specific legislation question. v Gardner- See Alexander (1974); Co, 1011; v 36; 147 Kremer 39 L Ed 2d 415 94 S Ct Denver US 1883; 461; L 2d Corp, 72 Ed US 102 S Ct 456 Chemical Construction 3220; Elliott, 788; (1982); 92 478 106 S Ct US 262 Univ of Tennessee 560 Mich 534 Dissenting Opinion Mallett, ing Excavating Co, 37; & 386 Mich 191 NW2d (1971), presumption preclusion ap- will not " ply statutory purpose contrary 'when a to the is ” Solimino, evident.’ Astoria Federal S & L Ass’n v 104, 108; 2166; 115 L US S Ct Ed 2d 96 (1991), quoting Johnson, Isbrandtsen Co v 343 US 779, 783; 1011; L 72 S Ct 96 Ed According Judg- Storey and 2 Restatement ments, 2d, 83,§ collateral

applied agency if it administrative decisions legislative policy permits conflicts with a court to independent make determination of an subsequent proceeding. Storey in issue 377. 2 a civil at 83(4), Judgments, p 2d, Restatement provides:

An adjudicative determination of an issue an preclude relitiga- administrative tribunal does not according tion of that preclusive issue in another tribunal if effect to determination issue incompatible legislative would be policy with that: (a) The adjudicat- determination of the tribunal

ing the issue is not to be accorded conclusive effect subsequent in proceedings; or

(b) in subsequently The tribunal which the issue independent arises be free to make an determina- question. tion in issue findWe that Civil Service Commission decisions subject exception general are to this to the rule of preclusion. apply Collateral does not final decisions of the Civil Service Commission Legislature because did not intend these deter- subsequent minations to be in conclusive civil litigation. Applying preclusive effect to these deci- incompatible legislative policy sions is with (1986); Solimino, L Ed 2d 635 Astoria Federal S & L Ass’n v 501 US 104; 2166; L S Ct 115 Ed 2d 96 Treasury Dep’t Dissenting Opinion Mallett, independent determina- court make an allows a Storey 377; 2 Restate- issue. at tion of the same Judgments, 2d, § 83. ment

ii Legisla- majority, find we Unlike independent intended determina- ture to allow in in the standard of review set tion circuit court Rights 37.2606; Act. MSA MCL forth 3.548(606). Although requirement forth set Rights applies only Act to review Civil the Civil Rights determinations, find we no Commission legislative intent treat Civil Service differently. determinations set forth in the Civil The standard of review Act indicates that intended independent plaintiffs of their to have an review judicial Section 606 claims in a provides forum. appeal "[a]n the act before the of circuit court shall be reviewed de novo.” MCL .5 3.548(606) pro Allowing 37.2606; MSA ceeding pursue plaintiffs when their administra remedy Commission,6 but tive Court, explained by recently term "de novo” means As court, reviewing of the Civil that "a circuit decision Commission, sion, findings, may conclu its assessment for the substitute Rights of Civil and decision of the Civil Commission.” 110, 116; Cafe, Rights Mich 490 ex rel Johnson v Silver Dollar 441 (1992). 337 NW2d 6 previous Rights the Whether a decision of Civil Commission subsequent precludes in a not before the trial forum is Rights effect of a Commission Court and we do not decide the determination. note, however, We similar conflict will do Rights generally the not arise the Civil Commission is adminis when agency commission has internal rule trative because the enacted an complaint plaintiffs procedure requires their to include in criminal, proceeding, any as other civil or statement [a] facts, occurrences, upon the as or transactions

based same alleged complaint, together with as to the in the a statement proceed- disposition action. status or of the other Where such 562 448 534 Mich by Dissenting Opinion Mallett, a similar denying treatment when seek plaintiffs adjudication Civil Service Commission vio- goals lates the of the Civil Act.

The Civil Service Commission was created people Michigan has and been effect since 1, 1941, 6, January through enactment of art 22, 1908, 11, 5, Constitution of now art § Michigan current Constitution. This section provides: The classify positions commission shall all in the according respective

classified service duties and to their responsibilities, compensa- fix rates of for all positions, approve tion prove termine mance and fitness the classes of or disap- services, personal disbursements for all de- competitive perfor- examination merit, exclusively on the basis of efficiency qualifications of all candidates for positions regulations covering service, in the classified make rules and transactions, personnel all regulate and classified service. all of employment conditions in the 1963, 11, art [Const § 5.] It undisputed is purpose of the amend- ment was to "spoils eliminate the system” and the politicization of state employment. goal towas the state of the classified service improve- through single of a Council efforts See agency. Comm, No AFSCME v Civil Service 87 Mich App 424; (1978), 274 804 NW2d aff’d 408 385; Reed v Civil Mich 292 NW2d (1980); Comm, Service 137, 154-155; 301 Mich NW2d (1942); Dep’t of Civil ex rel Jones v Civil Service Dep’t, App 295; Mich 301 NW2d

ing pending, department may, commission in its discretion, delay complaint consideration or action on the filed. AC, 37.4(4)(e).] R [1979 Presumably, stays proceedings its awaits the result in other forum. Dep’t 563 Dissenting Opinion Mallett, J.

Although was cre- Civil Commission forms of discrimination to end invidious ated single agency, through of a effort juris- does not have exclusive employees’ over state discrimination diction claims. of'Appeals correctly has As the Court Commission,7 the observed, Civil Service Civil Rights Commission,8 the circuit court9 have and employee jurisdiction a when "state concurrent Dep’t Walters v of a civil violation.” asserts App Treasury, 809, 816; 385 NW2d 695 148 Mich (1986); Service, 142 of Civil Mich Marsh v App 613 557; 370 NW2d jurisdiction not does undermine

Concurrent goal providing independent legislative deter- of independent forum. An mination guaranteed in is three forums review two employees discrimina- can file a which service and de claim: the circuit court review novo tion a pursuant Commission decision 3.548(606). 37.2606; MSA MCL determina- Service Commission Review Civil governed by however, tions, is a more deferential determinations Civil Service Commission standard. "competent, determine if there is are reviewed to evidence on the record as material substantial support the commission’s decision. whole”10 to 7 1963, 11, 5. Const art § 8 3.548(601)-3.548(605). 37.2601-37.2605; MSA MCL 9 3.548(801). 37.2801; MCL MSA 10 6, of the art 28. As illustrated comments consti Const drafters, "is the substantial evidence standard review tutional simply a review on the record made before the hoard review summary proceeding . . . .” below. It Official commission (comments Record, p 1466 of Lei- Constitutional Convention brand). Employment Sym Detroit noted Relations Comm v As (1974), Orchestra, Inc, 116, 124; phony "such 393 Mich NW2d .... Such the status of de novo review a review does not attain review the courts sensitivity in order that must be with considerable undertaken expertise deference to administrative accord due finding province . . fact . .” of exclusive administrative invade 448 Mich Dissenting Opinion by Mallett, supra; Michigan, App Viculin, Crider v 110 Mich 702; 313 Thus, NW2d 367 if we were to grant preclusive effect to a discrimination decision plaintiffs Commission, Civil Service who pursued their discrimination claims before the independent commission could never secure an determination in a forum. Legis- For reasons, these we would find that the lature did result, not intend such but rather in- guarantee any party tended to "the legal equitable direct an immediate or remedies in the courts of MCL this state.” 5, § 29; Const art 3.548(803). 37.2803; MSA

A Treating Rights Commission and the differently unsup- Civil Service Commission ported by language or the intent of the Civil disputes Act. Civil service often involve present factors and considerations not civil service arena. outside the In instances in which civil employment presents unique service and constraints obligations, may the Civil Service Commission be a better informed decisionmaker than either agencies the courts or other administrative are not familiar with civil service employment. not, however, We do find discrimination to such a situation. Discrimination is discrimination, private whether in the civil service arena or in the sector. While the Civil Service Commission is un- doubtedly frequently required to determine whether discrimination has occurred in state em- ployment, we are unable to conclude that it has special knowledge expertise requiring greater deference to its determinations than that of the contrary, Civil Commission. To the it would give greater be anomalous to deference to the Dissenting Opinion Mallett, Civil Service Commission determinations agency regard issues, an with discrimination only as one facet of discrimination addresses jurisdiction,11 Commis- than to Civil its sion, remedy expressly agency dis- created criminatory treatment.12 a determination conclude because We eliminating agency primary dis- vested with preclude independent de- crimination does not judicial forum, should the in a neither termination Commission. of the Civil Service determination consistently been claims have employment differently claims. other treated While nary than possesses "ple- Civil Service by procedures power” which to determine the employee may review his "a civil service state including arising grievance,”13 under the claims preclusive Rights denying Act,14 to the effect Civil determi- discrimination Civil Service Commission 11 system undisputed that the civil service was established It is system” put “spoils the of the which had to an end to evils government. goal politicized of the the levels of state all improve civil service amendment was classified 11, AFSCME, supra, system. adoption of at a merit No [Council Comm, citing supra at v Civil Service 154-155.] Reed prejudices Rights Act The Civil "is aimed at 'the biases’ membership against persons of in a certain because their borne demeaning . . . and to eliminate effects offensive class seeks Corp, stereotypes, prejudices, Muer and biases.” Miller C A omitted), (1984)(citations 355, 363; 362 NW2d 650 Mich at Viculin 393. legislation exempted civil from The classified service securing rights employ prohibiting civil discrimination Handicappers’ Civil the Elliott-Larsen and ment. Thus Acts service, apply employees and the of the classified jurisdiction and circuit court have Civil over discrimination [Marsh, aggrieved employees. claims of supra at 569.] opinion regarding express the intent the preclusive We no enacting a Handicappers’ effect of Act or by that of an issue covered Commission determination Civil Service 3.550(101) seq.; seq. et MCL 37.1101 et MSA act. 448 Mich 534 Dissenting Opinion by Mallett, recognizes unique nation nature of a discrimi- Legisla- nation claim and the intent fulfills provide independent ture to an determination in a judicial forum.

B Lastly, justified our conclusion is further the the consequences barring that would from follow plaintiff receiving independent from determina- employees tion the circuit court. Civil service required are not to exhaust their administrative filing directly remedies before a civil claim plaintiffs However, in circuit court.15 should not be discouraged pursuing from an administrative rem- edy advantage resolving disputes offers quickly expense more and with less than similar judicial proceedings. tacitly acknowledged We Storey granting concern in we when noted that preclusive Employ- effect to determinations of the Security ment Commission would entail potential substantial application risk qualified collateral will cause a claimant forego compensation claim for unemployment protect in order to pursue a civil claim with full range its of benefits. at [Id. 378.] adopt argu- Likewise, were we to the defendant’s employees, here, ment civil service in order to preclusive avoid the effect of an adverse Civil determination, Service Commission would en- couraged forgo proceedings to before the commis- preserve independent in sion order to an determi- judicial in nation a forum. recognized Storey,

As we also in "[d]ue to the range full the of remedies in action, available a civil

parties greater fully have incentive to liti- 15 Marsh, supra 562; Walters, supra at 816. at v Dissenting Opinion Mallett, unemploy-

gate the for the than claim civil claim are at 378. The same incentives benefits.” Id. ment present proceedings before the Civil Service in determination, of an adverse Fearful Commission.16 strong employer in- would have the defendant in all Ser- contest discrimination centive to proceedings a victorious Commission because vice offensively plaintiff the to assert able would be in circuit court of the commission determination damages does not the commission recover application authority Thus, award. have encourage estoppel exhaustive would collateral undermining claims, of discrimination contests speed advantages informality, cost, disputes in the administrative resolution of such forum. Legislature enacting Act, the

In sought independent determination to ensure independent An determination forum. granted guaranteed preclusive if effect is cannot be previous Civil Service Commission discrimi- nation determination.

We hold that intended would preclusive of the Civil Service eliminate the effects reason, determination. For we Appeals affirm decision of the Court of would that a final determination and would hold preclude Service Commission does Civil plaintiff relitigating issues cir- from same cuit court. traditionally required mutuality estoppel for collat We have Co, estoppel apply. v Universal Ins Mich eral Lichon American (1990); 3;

408, 428; Storey at n Howell Vito’s 459 NW2d 288 " Co, supra Trucking if 43. 'The is mutual the one n at advantage adjudication taking been of the earlier would have bound ” it, against gone had it him.’ 568 448 Mich Separate by Opinion Levin, J. J.,

Cavañagh, J. Mallett, concurred with Levin, J. David Nummer was transferred from Department Treasury one unit of the to an- grievance other. He filed a with the Civil Service claiming Commission, that the transfer breached promise an enforceable and constituted an affirma- program tive action that violated civil service mandating barring rules merit selection and sex and race discrimination. The and, officer review, Commission, Service found probative there was no evidence of an en- promise, forceable and that the transfer was for "legitimate business considerations.” The circuit court affirmed.

Nummer had then commenced this action in claiming court, circuit that his civil Appeals, were reversing violated. The Court of decision court, of the circuit held that this action precluded by was not the decision of the Civil majority Service Commission.1 The reverses, con- cluding the doctrine of collateral precludes this action. agree majority

I ordinarily with regarding decision of an administrative tribunal following adjudicative issue,2 factual hearing, party seeking bars a contrary finding from in a involving party civil another to the adminis- proceeding.3 trative are,

There however, a number of factors —see parts through distinguish ii vi—that this case App 695; 1 200 Mich NW2d legal Or a issue.

3 When an actually issue of litigated fact or law is and deter mined judgment, a valid and final and the determination is judgment, essential to the the determination is conclusive in a subsequent parties, action between the whether on the same or a different Judgments, 2d, 27, claim. p Restatement [1 250.] Levin, Separate Opinion relitigation aof factual in which from cases other Having might sought. in mind that issue estoppel is not ordained of collateral doctrine statute, guishing judicial creation, distin- those is a but recognizing my opinion, justify, in factors relitigation permitting exception the issues of sex and race discrimination.

i pursued grievance before David claiming Commission, trans- that his Civil Service Discovery Fraud Division fer the Tax from Department violated an Division of the by department promise officials made enforceable in the Tax Fraud Division that he would continue investigator position and auditor. in a combined that he was transferred because He also claimed male, in violation of the civil service he is a white requiring personnel on decisions be made rule provi- merit,4 and constitutional basis of barring in the rule6 transfers sion5 and civil service sexual) (and by rule, service for racial classified considerations._ promotions positions appointments in classified All and regulation of and service and all measures employment for control therefrom, positions, separation shall in such and merit, efficiency and fitness. Service Commis be based [Civil sion Rule 1-1.1.] appointments, promotions, or in the demotions removals No religious, partisan or made for racial classified service shall be art considerations. [Const 5.] against person shall be discriminated Conditions. —No any appointed promoted, seeking employment, being or or service, sepa any employment, the classified condition race, color, therefrom, religion, national ration because considerations, age partisan ancestry, handicap, origin, or sex. occupational may Age fide or sex be determined a bona qualification. Commission Rule 1-2.1.] Service [Civil 448 Mich 534 Separate Opinion Levin, hearing

The officer found that there was "no probative evidence to establish that a valid and promise enforceable was made to Nummer that he would continue to tigator work either as criminal inves- throughout or that he would his remain — government [the Division].” service—in Tax Fraud The officer also found "[t]he transfer legitimate was motivated business considera- tions.”7 Employment

The Relations Board of the Civil appeal.8 Service Commission denied leave to approved Civil Service Commission reviewed Employment the decision of the Relations Board.9 discrimination, On the matter of the claim is that auditors persons regula are males and most white of the hired as agents minority groups persons tion are from —women single color. Grievant relies on this fact establish his claim. It is not sufficient to do so! The transfer was motivated legitimate business considerations. I find that Grievant not has proofs. overcome and that fact in his That the auditors were men all mostly replaced women other and minorities is them largely classifications. In differing irrelevant of because the levels of two the addition, eligibility pool from which the regulation agents up primarily were selected was made of discrimination, minority persons this, and not is the reason for staffing.

decision Department Treasury’s The of transfer David A. Nummer Discovery from its Tax Fraud to its Division was based exclu- sively such, on business considerations. As the transfer not did Principles, violate either the Merit 1-1.1 Section or Section Therefore, grievance 1-2.1 of the Civil Service Rules. is dismissed. grievance 1988, 14, 17, The decision is dated June mailed June 1988. 7, The was at matter considered a board conference on November 1988, board, 9, appeal mailed November 1988. The said: "Leave to denied because Board concludes that no meritorious for an basis appeal Hearing of the Grievance Officer’sDecision has been shown Appellant.” mailing January date was 1989. Nummer v Levin, Opinion Separate appeal court, Civil from the Ser-

The circuit competent, Commission, found that there was vice material, on the whole substantial evidence and findings, support and officer’s record appeal did seek leave Nummer affirmed.10 Appeals. to the Court of decision circuit court’s pursuant this action11 commenced Nummer 8) (art claiming §801(1) Act,12 Civil of the January, he, the other seven and males, in the Tax auditors, were white all of whom summarily to the they Division, transferred were Fraud newly Discovery Division, and that formed agents,” only replaced by twenty "regulation were white males. of whom were four alleged primary objec- further reorganization "the was achievement tive of goals goals which could affirmative action certain only disenfranchising accomplished by those progres- employees currently in certain lines particular, your has the sion, Plaintiff; this and in position depriving his because Plaintiff of effect claimed male.” Nummer and is white he was right his constitutional the transfer violated of race or of discrimination because to be free provi- color,13 under the constitutional his establishing Rights Commission,14 sion based on his to be free discrimination of his the terms and conditions sex race employment Act.15 The under 10 5, judge January opinion 1990. is dated of circuit 11 12, 1989. December On 12 bring alleging may person of a a.violation this act civil A injunctive damages, appropriate or both. for relief or 37.2801(1); 3.548(801)(1).] MSA [MCL 13 1, 1963, art 2.§ Const 14 Const art 29.§ 3.548(201) seq. seq.; et MSA et MCL 37.2201 448 Mich 534 Separate Opinion Levin, complaint alleged also the transfer breached promise. an enforceable granted judge disposition summary

The circuit because the decision of the Civil Service Commis- "requires estoppel. sion dismissal due to collateral Appeals stating: reversed,16 . . The of Court enacting Act, It is clear Legislature principles chose to set aside the of collateral rights civil cases and to multiplicity countenance vided intended to litigation. pro- As scheme, the statutory permit rights litigants to have "two apple,” separate bites if even two proceedings repetitious opposite reach or engender results perhaps litigation needless of in vio- lation this Court principles of the estoppel. collateral As Treasury, Walters noted [v App 809, 819; 148 Mich (1986)], 385 NW2d 695 quoting Pompey Corp, v General Motors 385 Mich 537, 560; (1971), NW2d a civil action for redress rights violation of a civil statute " pursued may be in addition to 'the remedial ” provided machinery by statute.’ [administrative] Thus, plaintiff rights whose civil claim is denied by the Civil Service may origi- file an court, nal action in the circuit which may conclude injunctive otherwise and award relief damages, including costs and attorney reasonable fees. Appeals The Court of affirmed the circuit court’s grant partment summary disposition in favor of the de- respecting Nummer’s breach of an en- promise regarding claim, forceable but reversed his race and sex discrimination claims under the Act, and remanded the case for fur- proceedings regarding only. ther those claims

ii civil, In action, a circuit court in contrast App 200 Mich 700. Dep’t 573 v Nummer Opinion by Separate Levin, proceeding, Commission with a Civil Service (or determina- right judge) a to a jury have parties factual issues.17 tion of the decision-making and The administrative expedi- and informal adjudicatory, is while process, ted, the formal and deliberative with in contrast trial. in a circuit court proceedings jury circuit court by A new determination discrimination, decided and race the issue sex Commission, Service against by thus, the Restatement set forth in would as in the by "warranted differences Judgments, procedures of the followed or extensiveness quality in followed compared those in” circuit court as pro- administrative a Civil Service ceeding.18

iii seeking in litigant is not a case which the This an administra- relitigate by an adverse decision 17 557, Service, 569; App 142 370 v of Civil Mich In Marsh cases, (1985), Appeals earlier and later Court NW2d 613 jury recognized trial an action is a to a in held and brought pursuant there n for Act. See 12 text to 801 of the Civil § 801(1). § 18 by actually litigated Although and determined an issue is judgment, is essential valid and final determination subsequent relitigation judgment, of the in a issue following parties precluded in the circum between stances: (3) differ- A determination of issue is warranted new procedures quality of the followed ences extensiveness relating to allocation of courts or factors the two 2d, Judgments,

jurisdiction .... Restatement between them [1 28, p 273.] 948; Theatres, Westover, 500; S 3 L v 79 Ct Cf. Beacon Inc US 160; (1959); Corp, US 84 S Ct Oil 2d 988 Meeker v Ambassador Ed 273; (1963); App People Demery, 104 Cal 3d L 2d 261 11 Ed Casualty (1980); 560-561; Rptr Co v State Farm Fire & 163 Cal 1986). (Mo Emde, App, 706 SW2d 448 Mich 534 Separate Opinion Levin, J. adjudication tive tribunal could have obtained of all his claims in a circuit action. A court state cannot, civil servant service that his civil classified asserting rights circuit court action join seeking violated, have been claims redress for rights. violation of his civil service Nummer’s claims that his transfer from the Tax Discovery Fraud Division to the Division of the Treasury Department promise, personnel an violated enforceable requiring

and also violated rule be merit, decisions made on the basis of only could be advanced before Civil Service Commission, and could not have been advanced in complaint, circuit court.19 The third strand of his rights claim, the civil circuit court.20 alone can advanced in generally A state civil servant will conclude that prevail likely rights he is more on a civil claim rights in a circuit court civil action than before Today’s the Civil Service Commission. decision— precluding ing rights a circuit court civil action follow- hearing a Civil Service on a civil Commission rights grievance generally result in state —will splitting rights civil servants their of claims civil rights grievances. and noncivil The state civil grievance servant henceforth will not file a involv- ing rights, a civil claim before the Civil Service Comm, Liquor 378, 381; See Norris v Control 342 Mich 70 NW2d (1955). if damages Even Nummer could have asserted a claim for due to promise breach of enforceable of violation the merit rule in the Claims, probably required Court of administrative commencing he would have been to exhaust his remedies before the Civil Service Commission before Bays Dep’t in the Court of v Claims. See Police, App 359-360; State 89 Mich 280 NW2d 526 events, In all Nummer had a under the civil service rules to grievance respecting file a breach with the Civil Service his claim, promise hearing enforceable and to a thereon. that, agree majority Marsh, 20 I supra, pp with the as held n 17 562-563, Michigan require law "does not exhaustion of administrative filing Ante, rights p remedies before civil in circuit court.” [a action] 547. Levin, Separate Opinion court,21 result-

Commission, ing circuit and will file litigation the Civil Service Commis- before rights grievances circuit of noncivil sion assuring rights claims, thus of civil court multiplicity litigation that the doctrine of collat- discourage.22 seeks eral

IV including cases, case, the factual In some rights predicate noncivil a state civil servant’s predicate may grievance so relate to factual rights grievance Com- that a Civil Service his civil findings on the noncivil officer’s mission grievance may rights central decide factual issues action. Where a circuit court civil might occur, and advised a well-informed forgo, choose whether henceforth must servant rights grieving claims—in order his noncivil not rights against protect adverse claim his civil hearing finding by a Civil Service Commission court a circuit civil on an issue central officer rights of such an adverse run the risk action —or regarding finding by filing grievance his noncivil a rights claims. forgo filing a had "chosen” to

Even if Nummer grievance Commission re- with the Civil Service rights, application specting civil violation of his would collateral doctrine conventional rights court ac- his circuit civil nevertheless bar finding tion. The Civil Service Commission’s "legitimate for business he had been transferred rejecting his merit selection considerations” —thus possibly Or with the Civil Commission. preclusive majority, according to adminis effect As stated costly parties’ avoiding finding "interest fact serves the trative (Ante, p preserving repetitive litigation, as as resources.” well 788, 798; Elliott, citing 478 US S Ct Tennessee v Univ of 3220; [1986].) L92 Ed 2d 635 Mich 534 Separate Opinion Levin, J. grievance ordinarily preclude relitigation —would of the bona fides of the for the reasons transfer in rights the circuit court civil action. majority’s

While the conclusion that the circuit rights precluded by court civil action is the doc- estoppel might trine of collateral be read as lim- case, ited this, such as in which the claim of discrimination was raised before the Civii Service finding Commission and there was a that the claim meritorious, of discrimination not was it no doubt although that, would contended in another case presented no claim had been discrimination Commission, before the Civil Service find- factual ings proceeding in the Civil Service Commission preclude relitigation of the issue of the reason for the transfer. judicially

Preclusion ais created doctrine that litigation. serves eliminate redundant It should litigation be extended to case in which the not redundant. rights

A state civil servant who has both a civil grievance rights grievance and a noncivil should be able to seek a Civil Service Commission rights grievance running of his noncivil without pre- the risk that the decision of that claim will clude a circuit court civil claim even if the employee grievance regarding does not file his civil service discrimination claim. majority holding should limit its to the facts both a grievances involving

of this case where rights rights a and noncivil claim were filed. The majority griev- should, believe, I add that where a ance does not involve a civil service discrimination finding regarding claim, a another claim will not preclude rights may a civil action. fail To to do so Nummer v Separate Opinion Levin, J. person employed in the classi- state

mean that a filing legiti- from will be constrained fied service grievances, an ad- lest mate nondiscrimination rights action. a civil determination foreclose verse judicial economy nor the doctrine Neither inexorably requires estoppel this Court collateral economy to conclude that needs persons outweigh rights the needs and their civil ser- service exercise state classified rights potentially grievance without vice rights sacrificing remedies under their Act.

VI Applying collateral the conventional charging and race dis- doctrine in this case sex a who means that state civil servant crimination protests, transfer, case, disci- here a any in another pline, on basis viola- basis—whether rights— rights tion of or violation of other finding may his the risk of a factual bar runs civil rights A action. state civil servant who wishes jury preserve in a his determination rights action of his claims of sex circuit court civil filing griev- forgo or race discrimination must regard- before the Civil Service Commission ance ing any finding might in a issue that result department was for bona the action taken fide reasons. rights litigation that a a feature of civil

It is person claiming has a a violation of his civil multiplicity of That is a constitutional remedies.23 legislative annoying some, choice but by denying Court honor should choice preclusion there of a circuit court action where Const art 29; MCL 37.2101 et seq.; MSA 3.548(101) et 448 Mich Separate Opinion by Levin, J. seeking were sound reasons for first administrative relief.

Neither framers the constitution nor the employee that an intended in the state put civil service would be such election of right forgo assert, which and constrained to one right protect another. providing constitution,

The framers of for plenary power of the Civil Service Commis- Legislature, providing sion,24 and the for a rights action, circuit court civil did not intend preclude pursued unsuccessfully a state civil servant who grievance involving rights a civil viola- tion before the Civil Service Commission from obtaining jury rights determination legal preserved by expressly claim in a constitution to all citizens.25 policies underlying judicially

The created preclusion doctrines collateral do require applied not rigidly those be doctrines so right

toas force such an election of which right protect to assert and which to abandon to right. policies, protective the other of the civil rights employees service of state and of the civil rights expressed citizens, of all as in the constitu- protective rights, expressed tion, and of civil as oblige protect statutes, us to both a state employee’s grievance rights civil service and his rights circuit court civil cause of action.

Because transfer violation of a state civil 11, 5; Dep’t Service, Const art § Viculin of Civil 386 Mich 375; 192 NW2d 449 5, 29, establishing Commission, Const art provides: Nothing contained in this section shall be construed to dimin- any party

ish the legal to direct and immediate equitable remedies in the courts of this state. Nummer v Levin, Separate Opinion grievable be before

servant’s civil would also Commission, a civil servant Service discriminatory claiming his transfer was encouraged to that claim before advance should at the officer a Civil Service Commission rights griev- noncivil same time he advances his hearing has all the claims ances so that officer evidence, can all the and before him and review make a decision on all claims. "repeti- rights is

A civil not circuit court duplicative unnecessarily a service tive” civil or required hearing. A was civil service present opportunity provide Nummer with an promise rule and merit his breach enforceable Permitting plaintiffs grievances. like Nummer to rights Service issue the Civil raise the civil before risking preclusion of a circuit Commission without court civil might, particular rights cases, claim actually conserve resources. proceeding Commis-

A the Civil Service before ordinarily circuit speedily than a moves more sion opportu- rights provides action, and court civil nity employ- of an for mediation and rectification litiga- grievance might unnecessary avoid ee’s pub- Providing opportunity is in the tion. such an interest, the Civil Service Com- lic the interest of department government mission, for of state works, the civil ser- servant which civil vant. efficacy preserving public interest The hearings a means of as Commission

Civil Service protecting and the administration civil servants government a state from untoward action state against applying governmental militates official in manner a of collateral doctrine Commis- eliminate Civil Service tend to will hearings respecting employee complaints re- sion discipline any garding case transfers 448 Mich Separate Opinion by Levin, J. employee may preserve which the wish to for adjudication by jury in circuit court claims of sex, race, or discrimination. other

VII majority’s The assertion that had com- plained ap- to the Civil Commission and pealed court, the circuit 801 circuit court rights precluded by civil action would be an ad- ignores court,26 verse decision in the circuit ordinarily party the claimant is not in a Civil proceeding27 ordinarily represented separate counsel.28 majority references no decision of the Court Appeals party sought retry in which á in a circuit court action issues decided on the merits Commission and appeal affirmed or reversed in the circuit court. may simply There Civil be no such case because the Rights relatively Commission takes few cases hearing, and, to does, formal when it the com- plainant may generally prevail accept an ad- following hearing verse determination a full on appeal the merits and a determination de novo on to the circuit court. compared adjudica-

Such a scenario cannot be to 26Ante, p 548. 27 2d, 41(d), Judgments, stating p But see 1 Restatement § that person party, represented by party a who is a not but who is a is though party person represented by bound as a he were a and that a is party by authority represent is an who official "invested with law interests,” d, person’s p the and comment 397. separate may Under the circumstance the claimant maintain a rights action, circuit court civil it is at least unresolved whether the Rights attorney general may represent Civil Commission or the a might preclude claimant if the effect or would be to maintenance a separate circuit court action. See, e.g., n where an action commenced before the Civil Rights Dep’t styled Rights Commission was of Civil ex rel Johnson v Cafe, 110;

Silver Dollar 441 Mich 490 NW2d 337 by Opinion Separate Levin, by service

tion of a civil claim page Em- officer, the one affirmances ployment Commission, Board and the Civil Service the the under further the circuit court review reviewing requiring standard deferential supported by if decision be affirmed commission’s competent, material, on evidence and substantial the record.29 whole Mfg Fabricating Co, & In Walker v Wolverine (1986),

Inc, 586; the 391 NW2d 425 Mich appealed complainant Rights Civil a decision from dismissing complaint after his Commission grounds finding not there were sufficient thing charge. It to construe issue a one "appeals provision, [from the Civil constitutional Rights novo,”30as Commission] be tried de shall expansion appeal permitting on record Rights charge, Com- the issue is whether Civil where bring properly and, declined mission thus, quite an- It would be to decide merits. provision constitutional to so construe that other by the court a decision where the circuit reviews Rights Civil merits. Commission (under Rights appeal 6 of the Civil An article Act) truly tried from the Civil merits, full court on the with a de novo record made circuit prob- complainant, counsel for brought ably preclude would circuit court (article 8 of under in the claimant’s name Act), especially it if was appealed Com- claimant who from mission the circuit court.31

VIII compe- majority under a states that "review The 31 MCL Const Const 37.2606; 1963, 1963, art art MSA 5, 6, 28; § 29. 3.548(606). Viculin, n 24 supra. 448 Mich Separate Opinion Levin, J. tent, material, and substantial evidence standard” ”32 Although appellate "is not 'on the merits.’ such supposed novo, review is not de it is nevertheless to be a search of the and record a review to requisite determine whether there is the eviden- tiary support for the decision "on the merits.”

IX majority The states that the framers desired, 5, Constitution of 1963 as set forth in art "private employment”33 pro 29,§ extend provided provisions tection in the civil service against the constitution discrimination.34 This is recognition inconsistent with for a state civil is no there need employee his

service to exhaust proceed administrative remedies35—he can under directly the Civil which, thus, Act in the circuit court

provides "pri remedies not limited to employment.” vate large governmental

There are a number em- ployees who are not in the state classified civil employees excepted service: state who are from the county, city, service, classified state civil and township employees, all of whom are covered the Civil Act.

x following appears pp statement 561-562 dissenting opinion: of the The standard of review set forth Act indicates that the intended

32Ante, p 544 n 8. 33Id., p 553. Const art 5.§ 35See n 20. Dep’t 583 by Separate Opinion Levin, J. independent of their

plaintiffs to have an review in 606 a forum. Section claims provides appeal before of the act "[a]n de MCL shall be reviewed novo.” circuit court 3.548(606). pro- 37.2606; Allowing a judicial MSA their ceeding plaintiffs pursue administra- when Commission, but Rights in the remedy tive Civil plaintiffs when seek denying similar treatment a vio- adjudication by the Civil Service Rights Act. goals of the Civil lates 6) (article § the source of 606 as The discussion "independent to an determination” only appeal § 606 from overlooks that concerns Rights of the Commission. source the Civil right separate in circuit this action maintain 6, 8. 606 article but article court Rights provides, for Act article The Civil Rights complaint filing of a with appeal for an from its decision to Commission and court, the decision which shall review the circuit de novo.36 commission provides, Rights Act further article The Civil alleging person violation of the Civil that a damages Rights bring may Act a civil action for part court, recover, his dam- the circuit as ages, attorneys fees.37 reasonable by appellate review

This action does not seek Rights of a of the Civil the circuit court decision (Nor appellate does action seek this Commission. by of a of the the circuit court decision review Commission.) origi- separate, is a Service This Civil 36 3.548(605). 37.2605; MCL MSA MCL appeal be de novo. An the circuit court shall reviewed before 3.548(606). 37.2606; MSA Cafe, n v Silver Dollar 28 In ex rel Johnson judg- Appeals supra, reviews' held that the Court Court reviewing decision of the Civil of the court ment Commission under circuit clearly erroneous standard. 3.548(801). 37.2801; MCL MSA 448 Mich Separate Opinion Levin, J. pursuant nal court circuit action commenced properly analogized 8, article cannot to an seeking appellate article review circuit court of a decision of the Civil Commission. jury.

An article action is triable In plaintiff Marsh, here, as filed an article claiming the circuit court the De- partment of Civil Service De- partment unlawfully discriminated on the basis of sex and race.38The record to be made in an action jury limited, triable before limited, and cannot be the record made before another tribu- Rights nal such as the Civil Commission. Appeals The Court of also ruled: Jurisdiction of the Civil Commission and the circuit rights concurrent, aggrieved court over civil claims is and an may proceed simultaneously

individual in both forums. legislation exempted civil classified service is not from prohibiting securing employ- discrimination and Handicappers’ ment. Thus the Elliott-Larsen and apply employees service, Acts of the classified civil and the jurisdiction Civil over discrimination Commission and circuit court have aggrieved employees. [Marsh, n claims supra, pp 563-569.]

Case Details

Case Name: Nummer v. Department of Treasury

Court Name: Michigan Supreme Court

Date Published: May 2, 1995

Citation: 533 N.W.2d 250

Docket Number: 97343, (Calendar No. 16)

Court Abbreviation: Mich.