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

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: BRONSON
• Citation: 220 N.W.2d 46,53 Mich.App. 489
• Parties: DUKESHERER 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
• Docket Number: No. 3,Docket No. 16817,3
• Decision Date: 30 May 1974

Page 46

220 N.W.2d 46 53 Mich.App. 489 DUKESHERER 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. Docket No. 16817. Court of Appeals of Michigan, Division No. 3. May 30, 1974.
Released for Publication July 24, 1974.

[53 Mich.App. 490]

Page 47

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 [53 Mich.App. 491] 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

Page 48

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 [53 Mich.App. 492] 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).'

[53 Mich.App. 493] 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...