Boyd v. Civil Service Com'n

• Decision Date: 22 November 1996
• Docket Number: Docket No. 178099
• Citation: 220 Mich.App. 226,559 N.W.2d 342
• Parties: , 13 IER Cases 1883 Lucinda BOYD, Petitioner-Appellee/Cross-Appellant, v. CIVIL SERVICE COMMISSION and Department of Corrections, Respondents-Appellants/Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 342

559 N.W.2d 342

220 Mich.App. 226, 13 IER Cases 1883

Lucinda BOYD, Petitioner-Appellee/Cross-Appellant, v. CIVIL SERVICE COMMISSION and Department of Corrections Respondents-Appellants/Cross-Appellees.

Docket No. 178099.

Court of Appeals of Michigan.

Submitted May 8, 1996, at Lansing.

Decided Nov. 22, 1996, at 9:30 a.m.

Released for Publication Feb. 25, 1997.

Fraser, Trebilcock, Davis & Foster, P.C. by Michael E. Cavanaugh and Michael J. Laramie, Lansing, for petitioner-appellee/cross-appellant.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Allan J. Soros, Assistant Attorney General, for respondents-appellants/cross-appellees.

Before HOLBROOK, P.J., and SAAD and W.J. GIOVAN, ^* JJ.

HOLBROOK, Presiding Judge.

Petitioner, a former state prison employee, filed a grievance against her then employer, the Department of Corrections (DOC). A hearing officer denied the grievance, and the Employment Relations Board (ERB) reversed the hearing officer's decision. The Civil Service Commission reversed the ERB's decision and upheld the hearing officer's denial of the grievance. The Ingham Circuit Court reversed the Civil Service Commission's decision and remanded the matter to the Department of Civil Service. This Court granted respondents' application for leave to appeal, and petitioner's cross appealed. We now affirm in part and vacate in part the circuit court's order.

In 1990, petitioner was employed as director of library services at the State Prison of Southern Michigan. In April of that year, while petitioner was on an extended medical leave, the prison mailroom supervisor reported to DOC investigator Arden Mellberg that a manila envelope had been returned to the prison because it was undeliverable and that inside the envelope was a white envelope with green trim preaddressed to petitioner at the prison law library, a legal periodical, instructions on how to conceal drugs inside the periodical, and instructions on when to mail the white envelope. A second incident occurred around May 11, 1990, when the mailroom supervisor reported to Mellberg that another white envelope with green trim addressed to petitioner at the prison law library had been received. The envelope was similar to the white envelope with green trim from the April incident and it contained a legal periodical with marijuana concealed inside. Both the April and May incidents occurred while petitioner was on medical leave. On either July 10 or 13, Mellberg was informed of a tip received from a prisoner who indicated that petitioner believed prison administrators were harassing her and that she planned to smuggle cocaine into the prison on her first day back at work following the medical leave. Mellberg considered the informant's tip to be reliable because the informant did not work in the law library and the informant knew that petitioner was on leave and had been involved in a dispute with the prison administration. A Michigan State Police detective who was contacted regarding these incidents was of the opinion that petitioner could be detained legally and strip searched without a warrant. On the basis of the April and May incidents and the prisoner's tip, Mellberg sought and received permission from the warden to conduct a strip search of petitioner.

On July 19, 1990, petitioner arrived at the prison gate and was informed that the warden had ordered her to be strip searched on suspicion that she was bringing a controlled substance into the prison. She cooperated with the search, and no contraband was found either on her or in her car. Petitioner filed an employee grievance, alleging that the strip search was conducted in violation of a DOC policy directive, because no warrant was obtained and reasonable suspicion did not exist for the search. Petitioner also alleged that the search was further evidence of a pattern of sexual harassment against her by prison administrators in violation of certain civil service rules.

Following the step four grievance hearing, the hearing officer denied the grievance, finding that reasonable suspicion existed to conduct the search and that the DOC had acted in accordance with its applicable policy directive, PD-DWA-30.05. ¹ Petitioner appealed to the ERB, which reversed, finding the policy directive regarding searches to be ambiguous and construing that ambiguity in petitioner's favor. Thereafter, the Civil Service Commission reversed the decision of the ERB, finding that the DOC had complied with its policy directive. Petitioner appealed to the circuit court, which found that, in light of the need for heightened security in a prison, reasonable suspicion existed to conduct the strip search of petitioner. The court went on, however, to draw a distinction between illegal and legal contraband and to hold that § 7 of PD-DWA-30.05 required prison authorities--who have determined in advance that reasonable suspicion exists that an employee will attempt to commit a crime by bringing illegal contraband into the prison--to notify the appropriate police agency before conducting a strip search of the employee. ² The court concluded that the DOC had failed to comply with its own policy directive because it had not notified the appropriate police agency before subjecting petitioner to a strip search. The court reversed the decision of the Civil Service Commission and remanded the matter to the Department of Civil Service for the "determination of whatever benefits may be due." Respondents appeal by leave granted, arguing that the circuit court's decision was contrary to law, arbitrary and capricious, and without the support of substantial evidence in the record. Petitioner filed a cross appeal.

I

The first and most pressing issue to be resolved is the appropriate standard of review that this Court must employ in reviewing an administrative agency decision that already has been reviewed by a lower court. Judicial review of decisions of the Civil Service Commission is established by the Revised Judicature Act. M.C.L. § 600.631; M.S.A. § 27A.631. The scope of that review is established in Const. 1963, art. 6, § 28, ³ which requires the court conducting a "direct review" to determine whether the administrative action was authorized by law and whether the decision of the hearing officer was supported by "competent, material and substantial evidence on the whole record." Viculin v. Dep't of Civil Service, 386 Mich. 375, 192 N.W.2d 449 (1971). Neither our state constitution nor our statute set forth the appropriate standard of review that an appellate court is to employ, and judicial decisions have provided a confusing array of standards.

In Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), the United States Supreme Court analyzed the standard of judicial review of agency decision making in the federal system and concluded, at 490-491, 71 S.Ct. at 466:

Our power to review the correctness of application of the present standard ought seldom to be called into action. Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.

Likewise, the question whether substantial evidence supports a state agency finding has been placed by our state constitution in the hands of the court of direct review, e.g., the circuit court in this case. Const. 1963, art. 6, § 28. To hold that this Court--an intermediate appellate court--must also conduct a direct review of the agency's findings is to contravene the plain terms of our state constitution and to vitiate the sieve-like nature of the appellate process. In his treatise, Professor Don LeDuc sets out the various inconsistent standards applied by our appellate courts and concludes as follows:

The setting in Michigan is ripe for application of the clearly erroneous test as applied in the United States Supreme Court in Universal Camera Corp v. National Labor Relations Board. That case defined the roles of the various federal courts in the judicial review of administrative agency action context and held that the role of the court reviewing a lower court's review of agency action was to determine if the lower court had misapprehended or grossly misapplied the substantial evidence test. Under Universal Camera, the initial court of review operates as the primary locus of judicial review of agency fact-finding and bears the responsibility of applying the appropriate scope of review to such fact-finding. Each subsequent reviewing court reviews the findings of the earlier reviewing court, rather than the findings of the agency. This defines the function of the first reviewing court as the primary fact-finding check on agencies and represents a much better use of judicial resources. [LeDuc, Michigan Administrative Law, § 9:49, ch. 9, pp. 68-69.]

We agree with Professor LeDuc's sensible comments regarding this seemingly intractable issue. ⁴ Application of the Universal Camera standard will preserve scarce judicial resources, enhance the role of this Court as an intermediate appellate court, and discourage unnecessary appeals. We find further support for adoption of the clear-error standard in our Supreme Court's recent amendment of MCR 7.203(A)(1) to provide for appeals by leave granted, rather than as of right, of judgments of lower courts that have reviewed agency action. While the amendment may have had several objectives, one clear import was to return primary review of agency fact finding to the court of direct review. We therefore hold that when reviewing a lower court's review of agency action this Court must determine whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to...