City of Detroit v. Recorder's Court Traffic and Ordinance Judge

• Decision Date: 03 March 1981
• Docket Number: 49905,Docket Nos. 49110
• Citation: 104 Mich.App. 214,304 N.W.2d 829
• Parties: CITY OF DETROIT, Plaintiff-Appellee, v. RECORDER'S COURT TRAFFIC AND ORDINANCE JUDGE, Defendant-Appellant. 104 Mich.App. 214, 304 N.W.2d 829
• Court: Court of Appeal of Michigan — District of US

Page 829

304 N.W.2d 829

CITY OF DETROIT, Plaintiff-Appellee, v. RECORDER'S COURT TRAFFIC AND ORDINANCE JUDGE Defendant-Appellant.

Docket Nos. 49110, 49905.

104 Mich.App. 214, 304 N.W.2d 829

Court of Appeals of Michigan.

March 3, 1981.

Released for Publication April 30, 1981.

[104 MICHAPP 218] Joseph Earl Jackson, Detroit, for defendant-appellant in 49110.

Kenneth N. Hylton, Detroit, for defendant-appellant in 49905.

Robert D. Horvath, Detroit, for plaintiff-appellee.

Before KAUFMAN, P. J., and CYNAR and TOWNSEND, ^* JJ.

KAUFMAN, Presiding Judge.

The subject matter of this appeal is Detroit Recorder's Court Traffic & Ordinance Judge William C. Hague's refusal to enforce Detroit Municipal Code § 39-1-52 which concerns prostitution. ¹ On January 30, 1980, Wayne County [104 MICHAPP 219] Circuit Court Judge Horace Gilmore adjudged Judge Hague to be in contempt for refusing to enforce the ordinance and enjoined him from hearing any cases commenced under § 39-1-52 of the Detroit Municipal Code.

The instant appeal comes before this Court on stipulated facts, some of which must now be recited. On September 4, 1978, William C. Hague, judge of Recorder's Court, Traffic & Ordinance Division, rendered a written opinion declaring the City of Detroit's Municipal Code § 39-1-52 unconstitutional. Subsequently, the City of Detroit filed a complaint for superintending control before Richard D. Dunn, Chief Judge of Wayne County Circuit Court.

On April 23, 1979, Judge Dunn issued a written opinion upholding the validity of the ordinance in question, and, on the same date, Judge Dunn signed an order of superintending control. After Judge Hague's motions for reconsideration and stay of further proceedings were denied, Judge Hague filed a claim of appeal with this Court. It is uncontroverted that the Honorable William C. Hague dismissed 418 cases brought under the Detroit Municipal Code § 39-1-52 during late 1978 and early 1979. These cases were never tried, and, therefore, no defendant has ever appealed the issues raised by Judge Hague.

[104 MICHAPP 220] Although there was an adjudication of contempt made on January 30, 1980, the City of Detroit has requested that this Court address itself instead to the issue of the appropriateness of the order of superintending control as well as other pertinent issues raised by this appeal.

It is this Court's belief that many of the constitutional questions raised by Judge Hague in his opinion and rejected by Judge Dunn in his ruling may indeed by meritorious and that they may someday be addressed in an appropriate appeal. Until such day, however, we note that "(a)s a general rule, the Legislature's enactments are clothed with a presumption of constitutionality". See American Amusement Co., Inc. v. Dep't of Treasury, 91 Mich.App. 573, 576, 283 N.W.2d 803 (1979), lv. den. 407 Mich. 942 (1979). In regard to this presumption, "the rule applicable to ordinances of a city government is the same as that applied to statutes passed by the legislature". Cady v. Detroit, 289 Mich. 499, 505, 286 N.W. 805 (1939). Because of this presumption and because we feel that most of the constitutional questions raised by Judge Hague are not properly before this Court (either on the basis of standing or ripeness), we will not consider them in this opinion. Since both the city and Judge Hague have so requested, however, we shall try to address ourselves to all other meritorious issues raised by this appeal.

It is our belief that the issue of the appropriateness of the order of superintending control has been fully resolved by our opinion in Detroit v. Recorder's Court Judge, 85 Mich.App. 284, 271 N.W.2d 202 (1978), lv. den. 404 Mich. 808 (1978). However, because of the importance of this question, we will attempt to further delineate the position of this Court.

[104 MICHAPP 221] In Detroit v. Recorder's Court Judge, supra, 288-289, 271 N.W.2d 202, in which Judge Hague's practice of dismissing non-traffic ordinance violation complaints issued in ticket form was appealed, this Court held that:

"Superintending control is the proper vehicle by which to challenge a generalized practice of an inferior court, in this case the Recorder's Court Traffic & Ordinance Division. Cahill v. 15th District Judge, 393 Mich. 137, 224 N.W.2d 24 (1974), Michigan Association for Retarded Citizens v. Wayne County Probate Judge, 79 Mich.App. 487, 493, 261 N.W.2d 60 (1977). In the case at bar plaintiff had no other adequate remedy by appeal. GCR 1963, 711.2. Plaintiff would have had to challenge each dismissal separately, a remedy which would have been too time-consuming and burdensome to be called 'adequate'. Because appellant's method of conducting his general court proceedings in all cases which present a common, legal and factual situation is at issue, superintending control is the proper avenue for relief."

Judge Hague argues that review of his actions via superintending control was improper because the circuit court lacked jurisdiction, because the city had an appeal available to it, and because a generalized practice of the court was not in question. We will address these three contentions seriatim.

The question of jurisdiction and the city's right to appeal are inextricably bound. Let us first note that a circuit court does have a constitutionally-based power to exercise supervisory and general control over inferior courts within its jurisdiction. Const.1963, art. 6, § 13 provides:

"The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and [104 MICHAPP 222] general control over inferior courts and tribunals within their respective jurisdictions in accordance with the rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court."

M.C.L. § 600.615; M.S.A. § 27A.615 codifies this Constitutional authority as follows:

"The circuit courts have a general superintending control over all inferior courts and tribunals, subject to the rules of the Supreme Court."

The Constitutional and statutory power of a circuit court to exercise superintending control is delineated by GCR 1963, 711, which provides in pertinent part:

"Rule 711 Superintending Control.

".1 Scope. A superintending control order enforces the superintending control power of a court over lower courts or tribunals.

".2 Policy Concerning Use. If another adequate remedy is available to the party seeking the order, a complaint for superintending control may not be filed. See GCR 1963, 701.1(b); 711.4(b); 862.5(a).

".3 Writs Superseded. A superintending control order replaces the writs of certiorari and prohibition and the writ of mandamus when directed to a lower court or tribunal.

".4 Jurisdiction.

(a) The Supreme Court, the Court of Appeals, and the circuit court have jurisdiction to issue superintending control orders to lower courts and tribunals.

(b) When an appeal in the Supreme Court, the Court of Appeals, or the circuit court is available, that method of review must be used. If superintending control is sought and an appeal is available, the complaint for superintending control must be dismissed."

[104 MICHAPP 223] As the above-cited authority clearly indicates, superintending control requires the existence of a superior-inferior court relationship and is not available if another adequate remedy exists.

In our view, there is no question that a superior-inferior court relationship exists. Recorder's Court, Traffic & Ordinance Division, is an inferior court to Wayne County Circuit Court. See Swift v. Wayne County Circuit Judges, 64 Mich. 479, 31 N.W. 434 (1887), Detroit v. Wayne Circuit Judge, 233 Mich. 356, 206 N.W. 582 (1925), Gray v. Recorder's Court Judges, 51 Mich.App. 386, 215 N.W.2d 198 (1974). It therefore appears that the crucial question in determining the appropriateness of the order of superintending control in the instant matter is whether or not the City of Detroit had another adequate remedy for review of Judge Hague's actions available to it.

In general, appellate review of decisions rendered by the Recorder's Court, Traffic & Ordinance Division, is governed by M.C.L. § 600.308(1); M.S.A. § 27A.308(1), which provides in pertinent part:

"Appeals from final judgments from all other courts and from convictions for ordinance violations in the traffic and ordinance division of recorder's court shall be taken to the circuit courts, upon which further review may be had only upon application for leave to appeal granted by the court of appeals."

GCR 1963, 806.1, which governs appeals as of right, contains identical language.

The above-cited statute confers a right of appeal from convictions in municipal ordinance violation cases. By negative implication, there is no automatic right of appeal granted to a municipal attorney or prosecutor in such instances. This, however, does not mean that there is no avenue open to the [104 MICHAPP 224] City of Detroit, should it seek to appeal. GCR 1963, 703.1, added July 25, 1977, gives a municipal prosecutor access to request leave to appeal from a trial or municipal court if no appeal as of right exists. Thus, as to any individual case dismissed by a judge of Recorder's Court, Traffic & Ordinance Division, the city could have sought leave to appeal. It is Judge Hague's assertion that this is the method the city should have used, and that seeking an order of superintending control was tantamount to obtaining an appeal as of right, which the city did not otherwise possess.

We agree that it is clear from a consideration of GCR 1963, 703.1, 711.4(b), and 806.1, that the Supreme Court has mandated that the writ of superintending control is not to be used as a simple substitute for appeal. GCR 1963, 711.4(b), as amended in July of 1977,...