Automotive Service Councils of Michigan v. Secretary of State

• Decision Date: 17 April 1978
• Docket Number: Docket No. 31100
• Citation: 82 Mich.App. 574,267 N.W.2d 698
• Parties: AUTOMOTIVE SERVICE COUNCILS OF MICHIGAN, a Michigan Corporation, and Ramsey Collision, Inc., Plaintiffs-Appellees-Cross Appellants, v. SECRETARY OF STATE for the State of Michigan, Defendant-Appellant-Cross Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 698

267 N.W.2d 698

82 Mich.App. 574

AUTOMOTIVE SERVICE COUNCILS OF MICHIGAN, a Michigan Corporation, and Ramsey Collision, Inc. Plaintiffs-Appellees-Cross Appellants, v. SECRETARY OF STATE for the State of Michigan Defendant-Appellant-Cross Appellee.

Docket No. 31100.

Court of Appeals of Michigan.

April 17, 1978.

Leave to Appeal Denied July 5, 1978.

Released for Publication July 10, 1978.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edwin M. Bladen, Asst. Atty. Gen., for defendant-appellant-cross appellee.

Sigal & Seeligson by Paul Sigal & Leslie R. Seeligson, Ann Arbor, for plaintiff-appellee-cross appellants.

Before DANHOF, C. J., and ALLEN and HEADING, ^* JJ.

DANHOF, Chief Judge.

The parties appeal by right from the circuit court's summary judgment for plaintiffs holding unconstitutional several provisions of 1974 P.A. 300 as amended by 1976 P.A. 12, codified as M.C.L.A. § 257.1301 et seq.; M.S.A. § 9.1720(1) et seq., and commonly known as the Motor Vehicle Service and Repair Act. The circuit judge permanently enjoined the Secretary of State from implementing or enforcing the provisions held unconstitutional, but held that they were severable from the remainder of the act and that the secretary was entitled to enforce "all sections not declared unconstitutional".

The parties have devoted substantial portions of their briefs to arguments concerning the wisdom of the legislation before us for consideration. We do not pass upon the wisdom of legislative judgments, precisely because it is to the Legislature that the power, duty, and heavy responsibility of making such judgments is entrusted. Const.1963, art. 4, § 1. Our function is confined to reviewing the questions of law presented by the trial judge's findings of unconstitutionality.

"The primary determination of public need and character of remedy in the exercise of the police power is in the legislature. Unless the remedy is palpably unreasonable and arbitrary so as needlessly to invade property or personal rights as protected by the Constitution, the act must be sustained. The presumption favors validity and, if the relation between the statute and the public welfare is debatable, the legislative judgment must be accepted." Carolene Products Co. v. Thomson, 276 Mich. 172, 178, 267 N.W. 608, 610 (1936).

Bearing these principles in mind, we proceed to consideration of the provisions of the act held unconstitutional by the trial judge.

I

Plaintiffs maintained, and the trial judge agreed, that the legislative scheme allowing the administrator ¹ to make rules, ² investigate alleged violations, ³ prosecute, adjudicate, and impose sanctions ⁴ results in such a commingling of powers as to constitute a deprivation of due process under the Michigan Constitution. The trial judge concluded:

"As administrator the Secretary has the authority to investigate repair facilities. If it appears that there is a violation of the rules or statute the Secretary may prosecute and sit in judgment. The Secretary argues that due process is the embodiment of fair play. It is difficult to see how there can be fair play when a person has made a decision as to what is right or wrong (rule) and then the same person or one in the same department sits in judgment of one accused of violating that rule. Under such a system there is likely to be some bias, and unquestionably the appearance of bias on the part of the person sitting in judgment."

Accordingly, the trial judge held that the combination of functions in the administrator violated due process of law, relying on Crampton v. Department of State, 395 Mich. 347, 235 N.W.2d 352 (1975). There is no gainsaying the trial judge's conclusion that the act endows the administrator with comprehensive power to investigate, prosecute, adjudicate, and impose sanctions for violations of the act or rules promulgated thereunder, as is apparent from the statutory provisions set out in the margin. We disagree, however, with the trial judge's interpretation of the Supreme Court's decision in Crampton, supra.

Evidently the trial judge viewed Crampton as an instance of the differing treatment accorded by Federal and state courts to questions involving allegedly unconstitutional combinations of functions, noting that "State courts are more likely to give closer scrutiny on review to the combination of inconsistent functions". See 2 Davis, Administrative Law, § 13.02, p. 181 (1958). Be that as it may, it is also true that "the case law, both Federal and state, generally rejects the idea that the combination with judging of prosecuting or investigating functions is a denial of due process * * * ". Davis, supra, § 13.02, p. 175; Withrow v. Larkin, 421 U.S. 35, 52, 95 S.Ct. 1456, 1467, 43 L.Ed.2d 712, 726 (1975).

In Crampton the Supreme Court, 395 Mich. at 351, 235 N.W.2d at 354, adopting the analysis of the United States Supreme Court in Withrow v. Larkin, supra, at 47, 95 S.Ct. at 1464, 43 L.Ed.2d at 723, identified four situations ⁵ in which " 'experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable' ". Here, as in Crampton, supra, 395 Mich. at 355-356, 235 N.W.2d at 354, our examination focuses on the last category of situations, in which the judge or decisionmaker "might have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decisionmaker". In Crampton, plaintiff had been arrested by a member of the Lansing Police Department and convicted of driving under the influence of intoxicating liquor, M.C.L.A. § 257.625; M.S.A. § 9.2325, and, because he refused to consent to a chemical test to determine the alcohol content of his blood, he was subjected to the license revocation procedures provided in such cases under the implied consent law. M.C.L.A. § 257.625d, e, and f; M.S.A. § 9.2325(4), (5), and (6). Under the law as it existed prior to the decision in Crampton, the license appeal board that entertained Crampton's appeal from revocation of his driver's license included a police officer from the local police department involved in the initial arrest and prosecution. The only questions in the appeal proceedings were

"whether his fellow police officer had (1) reasonable grounds to believe Crampton was driving while under the influence of intoxicating liquor, (2) placed him under arrest while he was in that condition, (3) advised him of his rights, and (4) requested that he submit to a chemical test and, if so, whether he reasonably refused to submit to a test." Crampton, supra, at 356-357, 235 N.W.2d at 356. (Footnotes omitted.)

Noting that "resolution of those factual issues will often turn on appraisal of the credibility of the opposing testimony of the officer and the citizen", the Court concluded that

"The risk that they (police officers and prosecuting attorneys) will be unable to step out of their roles as fulltime law enforcement officials and into the role of unbiased decisionmaker in a law enforcement dispute between a citizen and a police officer presents a probability of unfairness too high to be constitutionally tolerable." Crampton, supra, at 357-358, 235 N.W.2d at 357. (Footnotes omitted.)

For several reasons, the holding in Crampton does not dictate a conclusion that the act under consideration is unconstitutional. In contrast with the statutorily defined composition of the appeal board in Crampton, the Motor Vehicle Service and Repair Act does not mandate hearings before a "full-time law enforcement official" whose functions include not only administrative adjudication of the dispute arising under the act but also the instigation or prosecution, in separate criminal proceedings, of the same statutory violations. This conclusion derives in part from the fact that the Supreme Court gave no indication in Crampton that it found objectionable the inclusion of the Secretary of State or his representative on the appeal board, and in part from the fact that in Wolney v. Secretary of State, 77 Mich.App. 61, 257 N.W.2d 754 (1977), this Court upheld the legislative response to Crampton.

After the decision in Crampton the appeal board was replaced by a hearing officer appointed by the Secretary of State ⁶ and the circuit court agreed with Wolney's contention that "when the Legislature amended the statute by making the sole member of the hearing panel a hearing officer appointed by the Secretary of State, it continued a procedure which was defective on the same due process grounds as the predecessor statute." Wolney, supra, at 66, 257 N.W.2d at 757. On appeal, the Wolney panel observed:

"(T)he Secretary of State is not such a (full time) law enforcement officer even though the Secretary of State is given certain enforcement powers.

"In addition, the responsibilities of the Secretary of State in Crampton were delegated to an employee of the Secretary of State and in the present case the statute provides for the appointment of a hearingofficer; in neither case has the Secretary of State given full time law enforcement personnel the duty of evaluating the credibility of other such personnel. Therefore the holding of Crampton in regard to full time law enforcement officers is not controlling in this case." Wolney, supra, at 67, 257 N.W.2d at 757.

We recognize that the administrator's functions under this act are more comprehensive than those remitted to him under the implied consent law, since here he has investigatory and rule-making powers in addition to his adjudicative function. Cf. Wolney, supra, at 69, 257 N.W.2d 754. Nevertheless, we are persuaded, absent any indication in Crampton that the Supreme Court intended to impose, as a matter of Michigan constitutional law, due process limitations more stringent than those applicable under the Federal Constitution, that the combination of these several powers in the Secretary of State does not render the act unconstitut...