Cahill v. Thomassen

• Decision Date: 19 December 1974
• Docket Number: No. 18,18
• Citation: 393 Mich. 137,224 N.W.2d 24
• Parties: David CAHILL et al., Plaintiffs-Appellants, v. Pieter G. V. THOMASSEN, Fifteenth District Judge, Defendant-Appellee. 393 Mich. 137, 224 N.W.2d 24
• Court: Michigan Supreme Court

Page 24

224 N.W.2d 24

David CAHILL et al., Plaintiffs-Appellants, v. Pieter G. V. THOMASSEN, Fifteenth District Judge Defendant-Appellee.

No. 18.

393 Mich. 137, 224 N.W.2d 24

Supreme Court of Michigan.

Dec. 19, 1974.

Hayes & Goldstein, P.C. by David I. Goldstein, Ann Arbor, for plaintiffs-appellants.

Office of the City Attorney by Edwin L. Pear, City Atty., John K. Van Loon, Asst. City Atty., Ann Arbor, for defendant-appellee.

Harrison & Friedman, P.C. by Robert S. Harrison, Detroit, for amicus curiae.

Before the Entire Bench.

SWAINSON, Justice.

Appellant David Cahill was ticketed by two Ann Arbor police officers for making an illegal left turn. Intent on contesting the ticket, Cahill appeared at the 15th District Court Traffic Violation Bureau to post bond and request a jury trial. The deputy clerk advised Cahill that the appearance bond would be $35.00 and denied Cahill's demand to post a $10.00 cash bond pursuant to M.C.L.A. § 780.66(1); M.S.A. § 28.872(56)(1). ¹ The clerk also informed Cahill that the permission of the district judge would be necessary to secure a jury trial and referred Cahill directly to Judge Thomassen. Later that day Cahill appeared before Judge Thomassen and renewed his request for a jury trial and the right to post a $10.00 bond. The district judge released Cahill on his own recognizance in the penal amount of $100.00 and scheduled a nonjury trial.

Two days later, Cahill filed a Complaint for Superintending Control in the Washtenaw County Circuit Court. The two-count complaint recited the facts of Cahill's individual case, and then went on to charge that the district court followed general policies of refusing a 10% Bond and jury trials in traffic cases. Alleging that he properly represented a class of similarly situated persons, ² appellant prayed for the following relief:

'(Count I)

'Wherefore, Plaintiff prays on behalf of himself and the members of his class that:

A. This honorable Court issue an Order of Superintending Control commanding Defendant judge to issue orders to the District Court Clerk that she shall:

1. Inform each defendant accused of a traffic offense or misdemeanor that said defendant is entitled as of right to post a deposit pursuant to MCLA 780.66(1), without being requested to do so by such defendant, and to furnish to each defendant the appropriate form, and

2. Accept the deposit set by MCLA 780.66(1) without requiring that such defendant gain permission from a District Judge to post such deposit; * * *

'(Count II)

Wherefore, Plaintiff prays on behalf of himself and the members of his class that:

A. This honorable Court issue an Order of Superintending Control commanding Defendant judge to issue orders to the District Court Clerk that she shall grant each defendant in a traffic offense case a jury trial on the demand of such defendant and enter such case on the jury trial docket; * * *.'

Pursuant to the order of the circuit court, four other persons, the remaining appellants herein, were allowed to intervene as plaintiffs in Cahill's Complaint for Superintending Control. Each intervenor stated that he or she was a member of the class described in Cahill's complaint and had been denied the right to post a $10.00 bond and/or secure a jury trial by defendant district judge.

On May 17, 1973, the circuit court issued its 'Opinion and Order denying Writ of Superintending Control.' From this order the plaintiffs appealed to the Court of Appeals. On June 5, 1973, they submitted papers claiming an appeal of right. The papers were initially returned to plaintiffs' attorney by the clerk of the Court of Appeals who indicated that the circuit court order was not reviewable as a matter of right. On June 6, plaintiffs' attorney resubmitted the papers to the Court of Appeals with a request that the case be docketed and plaintiff's allowed an opportunity to argue the jurisdictional issue before a panel of the Court of Appeals. The clerk's office accepted the pleadings, but on August 3, 1973, a panel of the Court dismissed the appeal after apparently concluding that Cahill's class action Complaint for Superintending Control in the circuit court was, in reality, merely an interlocutory appeal from the adverse decision of the district court in Cahill's individual case. The Court of Appeals accordingly held that a claim of appeal was not in order:

'In this cause, claim of appeal is filed by plaintiff and it appearing to this Court from the record before it that the circuit court order appealed from was entered on review of a decision of the district court, and due consideration thereof having been had by the Court,

IT IS ORDERED on the Court's own motion that this appeal be, and it is hereby DISMISSED for lack of jurisdiction without prejudice to the filing of an application for leave to appeal in accordance with GCR 1963, 806.2 and 806.3. 1968 PA 116.'

Appellants then filed an application for leave to appeal in this Court which we granted. 391 Mich. 768 (1974). This matter presents two issues for our determination:

1. Did plaintiff Cahill's actions in the Washtenaw County Circuit Court constitute a proper complaint for an order of superintending control?

2. Is the dismissal of a valid complaint for an order of superintending control filed in the circuit court appealable as a matter of right to the Court of Appeals?

I

This first issue presents a question that requires us to examine the nature of plaintiff Cahill's complaint in light of the normal remedy of appeal to the circuit court generally available in traffic violation cases. Under our Court Rules:

'The order of superintending control does not supersede the use of normal appellate procedure as the method of superintending control, when appeal would be available and adequate for that purpose.' 4 Honigman & Hawkins, MIchigan Court Rules Annotated (2d ed), p. 57. See also, GCR 1963, 711.2.

If, as appellee contends, Cahill's complaint was in fact an application for interlocutory appeal to the circuit court from the adverse decisions of the district court, then the Court of Appeals correctly dismissed appellants' claim of appeal. GCR 1963, 806.1 and 806.2. Conversely, if the circuit court action was a properly filed complaint for superintending control, the Court of Appeals erred when it refused to review the circuit court's dismissal of this 'original civil action.' See, Part II, Infra.

Assuming the availability of the procedure of appeal to the circuit court, our controlling question in this case becomes whether an appeal could have provided an adequate remedy to achieve the relief requested in plaintiff Cahill's complaint. After reviewing the papers filed in the circuit court, we do not believe that the procedure of appeal was adequate under the present facts.

A similar legal problem was confronted by the Court of Appeals in Pressley v. Wayne County Sheriff, 30 Mich.App. 300, 186 N.W.2d 412 (1971). Therein plaintiff Kenneth Pressley filed a class action challenging the claim of the judges of the Traffic and Ordinance Division of Recorder's Court that they could deny offenders the benefit of the 10% Bail deposit act. The circuit court granted relief to Pressley individually, but refused to grant the requested relief to the class as a whole. The Court of...