Carter v. Ann Arbor City Attorney

• Decision Date: 27 June 2006
• Docket Number: Docket No. 258282.
• Citation: 271 Mich. App. 425,722 N.W.2d 243
• Parties: James J. CARTER, Plaintiff-Appellant, v. ANN ARBOR CITY ATTORNEY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 243

722 N.W.2d 243

271 Mich. App. 425

James J. CARTER, Plaintiff-Appellant, v. ANN ARBOR CITY ATTORNEY, Defendant-Appellee.

Docket No. 258282.

Court of Appeals of Michigan.

Submitted June 15, 2006, at Detroit.

Decided June 27, 2006, at 9:00 a.m.

Released for Publication October 2, 2006.

COPYRIGHT MATERIAL OMITTED

James J. Carter, Ann Arbor, in propria persona.

David W. Swan, Ann Arbor, for the defendant.

Before: FORT HOOD, P.J., and MARK J. CAVANAGH and SERVITTO, JJ.

SERVITTO, J.

Plaintiff appeals as of right a circuit court order granting summary disposition in favor of defendant and denying plaintiff's motion for summary disposition in this veterans preference act case. Because plaintiff failed to demonstrate his ability to perform the job of assistant city attorney at the level of skill and with the expertise required by the employer, the veterans preference act did not grant him preference in public service employment and we therefore affirm.

In response to a notice of job vacancies, plaintiff applied for a position as assistant city attorney for the city of Ann Arbor. When two others were ultimately hired for the available positions, plaintiff filed a complaint for a writ of mandamus, seeking to compel the Ann Arbor City Attorney to employ him as an assistant city attorney. Plaintiff asserted that because he is a veteran and qualified for the position(s), he was entitled to preference for employment under the veterans' preference act, MCL 35.401 et seq. Plaintiff further claimed that in hiring nonveterans rather than him, defendant violated the act. The parties filed cross-motions for summary disposition and, as previously indicated, the trial court granted defendant's motion for summary disposition, ruling that plaintiff failed to establish a right to mandamus and further failed to submit materials or documentation demonstrating he had the requisite qualifications for the positions.

This Court reviews de novo a trial court's ruling on a motion for summary disposition. Corley v. Detroit Bd. of Ed., 470 Mich. 274, 277, 681 N.W.2d 342 (2004). Summary disposition may be granted pursuant to MCR 2.116(C)(8) on the ground that the opposing party "has failed to state a claim on which relief can be granted." Radtke v. Everett, 442 Mich. 368, 373, 501 N.W.2d 155 (1993). In assessing a motion brought under MCR 2.116(C)(8), all factual allegations are accepted as true, as well as any reasonable inferences or conclusions that can be drawn from the facts. Id. In considering a motion pursuant to MCR 2.116(C)(10), a court considers affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in a light most favorable to the nonmoving party. Corley, supra, 470 Mich. at 278, 681 N.W.2d 342. If the proffered evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999). Issues concerning the interpretation of a statute are questions of law that we also review de novo. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003).

Plaintiff raises several arguments on appeal, all turning upon the interpretation and application of the veterans' preference act (VPA). "`The primary goal of statutory interpretation is to give effect to the intent of the Legislature.'" Title Office, Inc. v. Van Buren Co. Treasurer, 469 Mich. 516, 519, 676 N.W.2d 207 (2004), quoting In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). In construing a statute, "the [C]ourt must consider the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the statute's purpose." Morris & Doherty, PC v. Lockwood, 259 Mich.App. 38, 44, 672 N.W.2d 884 (2003) (citations omitted). "Unless defined in the statute, every word or phrase of a statute will be ascribed its plain and ordinary meaning." Robertson v. DaimlerChrysler Corp., 465 Mich. 732, 748, 641 N.W.2d 567 (2002).

"The veterans' preference act was enacted for the purpose of discharging, in a measure, the debt of gratitude the public owes to veterans who have served in the armed services in time of war, by granting them a preference in original employment and retention thereof in public service." Valentine v. McDonald, 371 Mich. 138, 144-145, 123 N.W.2d 227 (1963). Consistent with that purpose, the act provides, in relevant part:

In every public department and upon the public works of the state and of every county and municipal corporation thereof honorably discharged veteran [sic] . . . shall be preferred for appointment and employment. Age, loss of limb, or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them. . . . The applicant shall be of good moral character and shall have been a resident of the state for at least 2 years and of the county in which the office or position is located for at least one year, and possess other requisite qualifications, after credit allowed by the provisions of any civil service laws. . . . [MCL 35.401]

The VPA applies to veterans, like plaintiff, who served in the Vietnam era (see MCL 35.61[j]) and is to be liberally construed. Abt v. Wilcox, 264 Mich. 183, 185, 249 N.W. 483 (1933).

While the VPA clearly states that veterans shall be given a preference for appointment and employment, it does not describe the nature or strength of the preference. Further, the VPA provides that a veteran is not entitled to the preference unless he or she meets the residency requirements and possesses "other requisite qualifications." However, the VPA neither defines "other requisite qualifications" nor mandates who is responsible for determining what the requisite qualifications are and whether an applicant possesses those qualifications. This Court, then, must first examine the language of the VPA and determine whether the VPA grants an absolute hiring preference to a veteran who meets the minimum job requirements for a position in public employment (as claimed by plaintiff) or whether the public employer has discretion to hire a better qualified nonveteran over a veteran who possesses the minimum qualifications.

According to Random House Webster's College Dictionary (2000),¹ "prefer" means:

1. to set or hold before or above other persons or things in estimation; like better: I prefer school to work. 2. to give priority to, as to one creditor over another. 3. to put forward or present for consideration or sanction. 4. to put forward or advance, as in rank or office; promote.

Similarly, according to Black's Law Dictionary (8th ed.), "prefer" means "to give priority to." Further, Random House Webster's College Dictionary defines "requisite" as "required; necessary" and defines "qualification" as "a quality, accomplishment, etc., that fits a person for some function, office, or the like." Under the plain, ordinary meanings of the relevant words in the VPA, defendant had to hold plaintiff above, or give plaintiff priority over, other nonveteran applicants if he possessed the qualities or accomplishments that were required or necessary to fulfill the role of an assistant city attorney.

Plaintiff argues that he does not have to prove his relative qualifications because of amendments of the VPA that have taken place over the years. We disagree. Plaintiff specifically directs this Court's attention to 1923 PA 88, an earlier version of the VPA that provided:

That the applicant shall be of good moral character and shall have been a resident of the state for at least two years and of the county in which the office or position is located for at least one year, and possesses other requisite qualifications, which shall be at least equal to those of other applicants. [Emphasis added.]

Pursuant to 1939 PA 298, the language requiring that the veteran possess other requisite qualifications "which shall be at least equal to those of other applicants" was deleted and no longer appeared in the statute. By deleting the phrase "which shall be at least equal to those of other applicants," the Legislature arguably evinced its intent that the preference not be triggered only when the veteran's qualifications were equal to the other applicants. See, e.g., Edgewood Dev., Inc. v. Landskroener, 262 Mich.App. 162, 167-168, 684 N.W.2d 387 (2004). However, though the Michigan Legislature did not intend for the preference to be triggered only when the veteran's qualifications are equal to or better than a nonveteran's qualifications, this does not mean that the Legislature intended for the VPA to provide an absolute preference, regardless of qualifications.

The Michigan Supreme Court decision in Patterson v. Boron, 153 Mich. 313, 116 N.W. 1083 (1908), proves instructive on this issue. In Patterson, the plaintiff, an honorably discharged Union soldier, sought a writ of mandamus compelling the defendant mayor to appoint him as a city attorney. The plaintiff based his right to the appointment on the VPA, as set forth in 1907 PA 329:²

In every public department, and all public departments in all municipal corporations . . . honorably discharged soldiers, sailors and marines of the late Rebellion . . . and the Spanish-American War shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them: Provided, however, That the applicant . . . shall have been a resident of the state for at least two years and of the county in which the office or position is located for at least one year, and possesses other requisite qualifications. [Id. at 313-314, 116 N.W. 1083.]

The Court noted that under the act, "discharged Union soldiers are not entitled to an appointment unless they possess the other requisite qualifications." Id. at 314, 116 N.W. 1083. The mayor refused to appoint the plaintiff to the...