Dukesherer Farms, Inc. v. Ball, Docket No. 16817

Decision Date30 May 1974
Docket NumberNo. 3,Docket No. 16817,3
PartiesDUKESHERER FARMS, INC., a Michigan corporation, for itself and on behalf of all cherry producers in the State of Michigan, Plaintiff- Appellant, v. B. Dale BALL, Director of the Department of Agriculture, and the Michigan Cherry Promotion and Development Committee, Defendants-Appellees, and Michigan Association of Cherry Producers, Intervening Defendant-Appellee
CourtCourt of Appeal of Michigan — District of US

Ernest M. Sharpe, Warner, Norcross & Judd, Grand Rapids, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Arthur E. D'Hondt, Asst. Atty. Gen., James A. White Foster, Lindemer, Swift & Collins, Lansing, for defendants-appellees.

Before BRONSON, P.J., and QUINN and VanVALKENBURG,* JJ.

BRONSON, Presiding Judge.

Plaintiff, Dukesherer Farms, Inc., appeals on behalf of itself and all other cherry producers in the State of Michigan. We granted plaintiff's application for leave to appeal the entry of accelerated judgments in favor of defendant B. Dale Ball, director of the Michigan Department of Agriculture, and intervening defendant, The Michigan Cherry Promotion and Development Committee.

This controversy has a long history. In March of 1967 the defendant Ball, acting under the authority of the Agricultural Commodities Marketing Act, 1 commenced proceedings to establish a cherry promotion and research program. Plaintiff voiced its opposition during the various proceedings and a subsequent referendum submitted to all cherry producers was ultimately voted down in April of 1967. Shortly, in November of 1967, defendant Ball again commenced proceedings to establish a cherry promotion and research program. Plaintiff also opposed the establishment of such a program in these proceedings. The proposed program was again voted down after another referendum.

Plaintiff then took its opposition to court by filing an action against defendant Ball in the Berrien County Circuit Court seeking to enjoin disclosure of the vote and to have the Agricultural Commodities Marketing Act declared unconstitutional. Summary judgment was granted for defendant Ball on the basis that the rejection of the referendum made the controversy moot. This was affirmed by this Court in a per curiam decision on March 27, 1969. 2

Defendant Ball again commenced implementation proceedings in January of 1972. The procedure taken and the constitutionality of the Agricultural Commodities Marketing Act are presently in issue. The remaining facts will be recounted in discussion of the issue.

The Berrien County Circuit Court, in a well-reasoned opinion, granted defendant's motions for accelerated judgment because plaintiff's petition for judicial review was untimely filed as required by the review provisions 3 of the Administrative Procedures Act. 4 The act provides that review is to the circuit court in 'contested cases' and must be taken within 60 days following the date of mailing notice of the final decision or order of the agency. 5

After a public hearing on January 31, 1972, at which plaintiff registered objection for himself and other cherry producers, defendant Ball issued his decision on March 3, 1972. This decision called for a referendum vote to be returned no later than March 22, 1972. The vote was in favor of the program and implementation was immediately begun. Plaintiff filed his complaint in circuit court on October 13, 1972. The complaint was filed 224 days after defendant Ball's decision and 205 days after the final vote was due. If plaintiff's action in circuit court was for review of a final decision or order in a 'contested case', it was clearly untimely.

The trial court in his opinion granting defendant's motions observed:

'The court has no difficulty in finding that defendant Ball did not follow the mandate of the provisions of the APA in making the requisite findings of fact and conclusions of law as provided by M.S.A. § 3.560(185) or the findings as required by M.S.A. § 12.94(30)(c). If plaintiff had filed its suit within the time requirements prescribed by M.S.A. § 3.560(204), or in the alternative by the requirements prescribed by GCR 705.3, plaintiff's motion for summary judgment would be promptly granted, the referendum would be voided, and the constitutional issues raised by plaintiff's complaint would be moot by virtue of Dukesherer v. Director of the Department of Agriculture, 16 Mich.App. 656 (168 N.W.2d 454) (1969).'

A contested case is defined in the Administrative Procedures Act of 1969 as:

"Contested case' means a proceeding, including but not limited to rate-making, price-fixing and licensing, in which a determination of the legal rights, duties or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing. When a hearing is held before an agency and an appeal from its decision is taken to another agency, the hearing and the appeal are deemed to be a continuous proceedings as though before a single agency.' M.C.L.A. § 24.203(3), M.S.A. § 3.560(103)(3).

In its complaint the plaintiff alleged that the action was brought pursuant to the Administrative Procedures Act, that plaintiff was an interested party, that plaintiff Dukesherer appeared as a party at the hearing called by defendant Ball and spoke in opposition to the program and that a final decision was entered by defendant Ball on March 16, 1972. This position was abandoned at oral argument of the motion for accelerated judgment and the plaintiff chose to rely solely on a constitutional attack on the Agricultural Commodities Marketing Act seeking the equivalent of declaratory relief under GCR 1963, 521.

The provisions of section 10 (M.C.L.A. § 290.660, M.S.A. § 12.94(30)), set forth in full in the margin, 6 require the defendant Ball to 'give notice of a public hearing' (section 10(a)) and permit him to require a report 'showing the correct names and addresses of all producers'. The defendant Ball is then required to 'issue a Decision within 45 days after the close of the hearing'; to base this decision on his Findings and to give copies of his decision of all Parties of record appearing at the hearing and any other interested parties. The section further provides that the recommendation of defendant Ball be 'substantially within the purview of the notice of hearings' and that it 'shall be supported by evidence taken at the hearing or by documents of which the director is authorized to take official notice'.

The plaintiff and other producers received notice of the hearing, plaintiff and others attended the hearing and voiced objection, a record was kept and defendant Ball issued his decision in favor of adoption. We do not pass on the substantive compliance with the procedure but note only that the Opportunity for a fully 'contested case' surely existed. By finding this procedure to be a 'contested case' within the meaning of M.C.L.A. § 24.203(3), M.S.A. § 3.560(103)(3) of the Administrative Procedures Act we are affirmatively asserting plaintiff's right to insist on the full range of procedural rights afforded to parties in contested cases. See, e.g., M.C.L.A. § 24.271 et seq., M.S.A. § 3.560(171) et seq. The fact that plaintiff did not demand these rights or may not have been accorded these rights does not preclude a determination that the proceeding was a contested case. We hold that the proceeding here involved under the marketing act was a contested case within the meaning of the Administrative Procedures Act.

This, however, does not completely determine this appeal. Plaintiff has challenged the constitutionality of the marketing act itseflf.

The Administrative Procedures Act clearly provides for review of constitutional questions on appeal from decisions of administrative agencies. Section 106 reads, in part:

'Sec. 106. (1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:

'(a) In violation of the constitution or a statute.

'(b) In excess of the statutory authority or jurisdiction of the agency.' M.C.L.A. § 24.306(1)(a), (b), M.S.A. § 3.560(206)(1)(a), (b).

Thus, had plaintiff proceeded in a timely manner the constitutional arguments now asserted would have been considered. The question we must decide is whether the circuit court properly refused to permit the constitutional...

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3 cases
  • Dukesherer Farms, Inc. v. Ball
    • United States
    • Michigan Supreme Court
    • 9 Enero 1979
    ... ... Committee, Defendants-Appellees, ... Michigan Association of Cherry Producers, Intervening ... Defendant-Appellee ... Docket" No. 59321 ... Calendar No. 14 ... Supreme Court of Michigan ... Argued Jan. 6, 1978 ... Decided Jan. 9, 1979 ... Page 880 ...     \xC2" ... ...
  • Dukesherer Farms, Inc. v. Ball
    • United States
    • Court of Appeal of Michigan — District of US
    • 6 Enero 1977
    ... ... Committee, Defendants-Appellees, ... Michigan Association of Cherry Producers, Intervening ... Defendant-Appellee ... Docket No. 26699 ... Court of Appeals of Michigan ... Jan. 6, 1977 ... Released for Publication March 18, 1977 ...         [73 Mich.App. 214] ... ...
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    • United States
    • Court of Appeal of Michigan — District of US
    • 8 Octubre 1986
    ... ... Docket No. 85843 ... 152 Mich.App. 360, 393 N.W.2d 636 ...         BCS's reliance on Dukesherer Farms, Inc. v. Director of Dep't of Agriculture, ... ...

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