Davis v. Department of Corrections, Docket No. 225150.

• Decision Date: 15 March 2002
• Docket Number: Docket No. 225150.
• Citation: 251 Mich. App. 372,651 N.W.2d 486
• Parties: Janet DAVIS, Petitioner-Appellee, v. DEPARTMENT OF CORRECTIONS and Department of Civil Service, Respondents-Appellants.
• Court: Court of Appeal of Michigan — District of US

651 N.W.2d 486

251 Mich. App. 372

Janet DAVIS, Petitioner-Appellee, v. DEPARTMENT OF CORRECTIONS and Department of Civil Service, Respondents-Appellants.

Docket No. 225150.

Court of Appeals of Michigan.

Submitted March 6, 2002, at Lansing.

Decided March 15, 2002.

Approved for Publication May 21, 2002, at 9:00 a.m.

Released for Publication September 10, 2002.

Nolan, Thomsen & Villas, P.C. (by Lawrence P. Nolan and Gary G. Villas), Eaton Rapids, for the petitioner.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Susan Przekop-Shaw, Assistant Attorney General, for the respondents.

Before: SAWYER, P.J., and MURPHY and HOEKSTRA, JJ.

PER CURIAM.

Respondent Michigan Department of Corrections (MDOC) and Michigan Department of Civil Service (MDOCS) appeal by leave granted an order granted following judicial review by the Ingham Circuit Court reversing the administrative decision of the Civil Service Commission terminating petitioner's employment with the MDOC after she was deemed unable to work without restrictions and the MDOC declined to extend her medical leave of absence. The circuit court concluded that the administrative agency's decision that petitioner's separation was justified because she could not return to work at full capacity was inconsistent with the agency's findings of fact, and that the decision was not supported by competent, material, and substantial evidence. We reverse, finding the circuit court lacked subject-matter jurisdiction.

In the case at bar, the final decision of the Civil Service Commission, which affirmed the decision of the Employment Relations Board, which affirmed the decision of the Civil Service Commission hearing referee, was entered on June 5, 1998, and petitioner's July 30, 1998, petition for judicial review named as party opponent the MDOC. An amended petition was filed twenty-seven days after the initial filing deadline, adding the MDOCS. Respondents brought a motion to dismiss for lack of jurisdiction, which the circuit court denied, finding that petitioner had made a good-faith effort to proceed properly and allowing the amendment.

Respondents now argue that the amendment naming the MDOCS as a party failed to vest the court with jurisdiction to hear an appeal from a decision of the Civil Service Commission. We agree.

A claim of lack of subject-matter jurisdiction may be raised at any time, even if for the first time on appeal. MCR 2.116(D)(3); MCR 2.111(F)(2); Harris v. Vernier, 242 Mich.App. 306, 316, 617 N.W.2d 764 (2000); Bass v. Combs, 238 Mich.App. 16, 23, 604 N.W.2d 727 (1999). Whether a court has subject-matter jurisdiction is a question of law subject to review de novo. Travelers Ins. Co. v. Detroit Edison Co., 465 Mich. 185, 205, 631 N.W.2d 733 (2001); Womack-Scott v. Dep't of Corrections, 246 Mich.App. 70, 74, 630 N.W.2d 650 (2001).

MCL 24.304(1) requires that the application for review be filed within sixty days of the date of the mailing of notice of the final appeal, here by August 4, 1998, as provided by the Administrative Procedures Act, M.C.L. § 24.201 et seq. Womack-Scott, supra at 79, 630 N.W.2d 650. Failure to file a timely claim of appeal deprives the circuit court of jurisdiction to hear the appeal. Shippey v. Madison Dist. Public Schools, 55 Mich.App. 663, 667, 223 N.W.2d 116 (1974); Schommer v. Director, Dep't of Natural Resources, 162 Mich.App. 110, 120-122, 412 N.W.2d 663 (1987); Attorney General v. Public Service Comm., 172 Mich.App. 778, 782, 432 N.W.2d 437 (1988); Schlega v. Detroit Bd. of Zoning Appeals, 147 Mich.App. 79, 82, 382 N.W.2d 737 (1985).

The burden of establishing jurisdiction is with the petitioner. Citizens for Common Sense in Government v. Attorney General, 243 Mich.App. 43, 50, 620 N.W.2d 546 (2000). Here, petitioner failed to sustain her burden. Attempting to cure the initial defect by amending the petition on August 31, 1998, to add the MDOCS was ineffective for two reasons: (1) the amendment was procedurally invalid and (2) the MDOCS and the Civil Service Commission are separate entities, and serving the MDOCS did not confer subject-matter jurisdiction over the Civil Service Commission's final decision.

Pertinent to the case at bar, MCR 7.105(C) outlines the procedures regarding form and content of an appeal and defines the "respondent" as a "person who seeks to sustain the decision of the agency...." MCR 7.105(C). This clearly would apply to the Civil Service Commission.

First, petitioner opposes respondents' challenge to the validity of the amendment by contending that MCR 7.105(C) allows the filing of a delayed petition. However, as a preliminary matter, this misapplies the court rule— MCR 7.105(C) permits the filing of a delayed petition only where permitted by the applicable review statute. The statute applicable here, M.C.L. § 24.304, contains no provision permitting the filing of a delayed appeal; therefore, MCR 7.105(C) is inapplicable by its own terms. Second, the only petition filed within the sixty-day period for filing petitions for judicial review named the MDOC as the party opponent. The amended petition, even if construed as an initiating petition that named all parties, was filed after the sixty-day period. MCL 24.304(1). Petitioner's argument that leave to amend was properly granted and the amendment related back to the original filing misstates the factual circumstances of the instant case. The relation-back doctrine does not encompass the addition of parties. MCR 2.118(D); Hurt v. Michael's Food Center, Inc., 220 Mich.App. 169, 179, 559 N.W.2d 660 (1996);¹Employers Mut. Casualty Co. v. Petroleum Equipment, Inc., 190 Mich.App. 57, 63, 475 N.W.2d 418 (1991). Therefore, sidestepping the issue regarding the propriety of a grant of leave to amend, the MDOCS was not properly added as a party; thus, no timely appeal was filed against the MDOCS. Accordingly, the court lacked subject-matter jurisdiction. Shippey, supra at 667, 223 N.W.2d 116; Schommer, supra at 120-122, 412 N.W.2d 663.

Petitioner also insists that the Civil Service Commission is a part of the MDOCS and assuming the amendment was proper, then serving the MDOCS was sufficient to bring the Civil Service Commission within the ambit of the action. This position is not supported by the law. Implicit in discerning the meaning of statutory language, the fair and natural import of the language employed in view of the subject matter of the law should govern. In re Wirsing, 456 Mich. 467, 474, 573 N.W.2d 51 (1998). Here, the Michigan Constitution belies petitioner's position and articulates that the "state civil service shall consist of all positions in the state service except those filled by ... commissions...." Const. 1963, art. 11, § 5. While the administration of the Civil Service Commission's...