DeMara v. Governor, 112152

• Decision Date: 09 May 1990
• Docket Number: No. 112152,112152
• Citation: 183 Mich.App. 87,454 N.W.2d 401
• Parties: Richard D. DeMARA, Plaintiff-Appellant, v. GOVERNOR of the State of Michigan, Michigan Department of Military Affairs, and Michigan National Guard, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 401

454 N.W.2d 401

183 Mich.App. 87

Richard D. DeMARA, Plaintiff-Appellant, v. GOVERNOR of the State of Michigan, Michigan Department of Military Affairs, and Michigan National Guard Defendants-Appellees.

No. 112152.

Court of Appeals of Michigan.

Submitted Dec. 20, 1989.

Decided April 2, 1990.

Released for Publication May 9, 1990.

Braun, Kendrick, Finkbeiner, Schaefer & Murphy by Thomas F. James and Francis J. Keating, Saginaw, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Milton I. Firestone and George M. Elworth, Asst. Attys. Gen., for defendants-appellees.

Before MICHAEL J. KELLY, P.J., and SULLIVAN and ALLEN, ^* JJ.

ALLEN, Judge.

This appeal involves an action for age discrimination under the Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq. Plaintiff, now age sixty-one, enlisted in the Michigan National Guard in 1947, at the age of eighteen. He served as an active member of the Guard from 1947 through 1986, during which period he advanced from the rank of private to the rank of brigadier general. By orders dated October 21, 1986, and December 1, 1986, issued by the Michigan Department of Military Affairs in Lansing, plaintiff was separated from the Guard and placed on the State Military Retired List.

Following his discharge, plaintiff requested reinstatement through the normal chain of command. When this effort failed, plaintiff, on September 18, 1987, filed an eight-count suit in the Ingham Circuit Court. On March 21, 1988, six of the eight counts were dismissed without prejudice by the trial court. The remaining two counts (Counts III and IV) allege age discrimination under the Civil Rights Act. Defendants moved for summary disposition on these counts. At the hearing held on the motion on July 20, 1988, the Attorney General argued that, in view of the Michigan National Guard's dual federal/state status and the tradition of judicial reluctance to intervene in military matters which have not first been subjected to available administrative review, plaintiff must exhaust his remedies under 10 U.S.C. Sec. 1552, which provides for an appeal to the Army Board of Correction of Military Records. That section provides, in relevant part:

(a) The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.... Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.

(b) No correction may be made under subsection (a) unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. However, a board established under subsection (a) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.

(c) The Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be.

Plaintiff argued that Michigan law does not require the exhaustion of administrative remedies as a condition precedent to a civil rights claim. Walters v. Dep't of Treasury, 148 Mich.App. 809, 815, 385 N.W.2d 695 (1986), lv. den. 425 Mich. 873 (1986); Marsh v. Dep't of Civil Service, 142 Mich.App. 557, 562-563, 370 N.W.2d 613 (1985), lv. den. 424 Mich. 881 (1986). The Attorney General responded that the case law on which plaintiff releid concerns members of the state's classified service rather than a former member of the state National Guard, which is an entity largely funded by federal funds and subject to both federal and state statutes and regulations. The trial court agreed with the Attorney General, adopting the reasoning in Furman v. Edwards, 657 F.Supp. 1243 (D.Vt.1987), and stating:

I'm going [to] grant the motion for summary disposition. The Court is not inclined, frankly, to intervene in these military affairs, particularly where they are federal military affairs. I'm not going to go through and recite all of those cases. The language of the Edwards case I think is pertinent here. And, the fact that this Plaintiff may well have some claims, which may not be justiciable in the context of the military administrative process really is neither here nor there. ¹

* * * * * *

And so, I would agree, and since we adopt the reasoning of the Furman v. Edwards case, I believe, and to dismiss the motion not on the grounds--ultimately the case--not on the law but on the grounds that this action is premature and that the Plaintiff ought to take steps to pursue his remedies with the National Guard. Once having done that he may then and is invited, if there are issues to be resolved, to reinstitute his claim based on [the Civil Rights Act] or the constitutional charge or any other claim he has in state court.

On appeal, the parties restate in greater detail the claims and arguments advanced at the trial level. Additionally, the brief of the Attorney General includes budget figures disclosing that the operation of the Michigan National Guard is largely funded with federal money.

The Civil Rights Act prohibits age discrimination in employment. The act provides, in part:

(1) An employer shall not:

(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.

(b) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status. [M.C.L. Sec. 37.2202; M.S.A. Sec. 3.548(202) ].

The act defines "employer" as "a person who has 1 or more employees," M.C.L. Sec. 37.2201(a); M.S.A. Sec. 3.548(201)(a). A "person" includes "the state or a political subdivision of the state or an agency of the state." M.C.L. Sec. 37.2103(f); M.S.A. Sec. 3.548(103)(f). A person who has been injured as a result of a violation of the act may seek injunctive relief or damages, or both, by commencing an action in the circuit court for the county in which the violation occurred or where the employer resides or has its principal place of business. M.C.L. Sec. 37.2801; M.S.A. Sec. 3.548(801). Although the act provides for administrative remedies to persons aggrieved by violations of the act, M.C.L. Sec. 37.2602; M.S.A. Sec. 3.548(602) through M.C.L. Sec. 37.2606; M.S.A. Sec. 3.548(606), a plaintiff is not required to exhause these remedies before proceeding in the circuit court. Constantinoff v. Emma L. Bixby Hosp., 111 Mich.App. 575, 314 N.W.2d 698 (1981); Marsh, supra; Walters, supra.

We agree with the general principle of law that, where military matters are involved, the judiciary is reluctant to intervene unless the matter has been first subjected to available administrative review. We even agree with the decision in Furman, supra. However, Furman did not involve a state statute granting broad authority to bring suit. We cannot agree that where, as in the case before us, a state statute broadly authorizes an aggrieved state employee to file suit against his or her state employer without first exhausting internal administrative remedies, the court lacks jurisdiction merely because the matter in dispute involves the military. Nothing in the act states, or even implies, that all state personnel, except members of the National Guard, may file suit without first exhausting available administrative remedies.

For this Court to read into the statute language which is not contained or implied therein would constitute a...