Durant v. State, Dept. of Educ.

• Decision Date: 19 October 1981
• Docket Number: Docket No. 51431
• Citation: 313 N.W.2d 571,110 Mich.App. 351
• Parties: , 1 Ed. Law Rep. 1270 Donald DURANT, Leander Picard, Jack Kennedy, Hilary Kutella, Douglas Holbrook, Verna Rasmussen, Edward Rishavy, and the Fitzgerald Public Schools, a Michigan municipal corporation, Plaintiffs, v. STATE of Michigan, DEPARTMENT OF EDUCATION, Department of Management andBudget, and State Treasurer, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 571

313 N.W.2d 571

110 Mich.App. 351, 1 Ed. Law Rep. 1270

Donald DURANT, Leander Picard, Jack Kennedy, Hilary Kutella,

Douglas Holbrook, Verna Rasmussen, Edward Rishavy,

and the Fitzgerald Public Schools, a

Michigan municipal

corporation, Plaintiffs, v. STATE of Michigan, DEPARTMENT OF EDUCATION, Department of

Management andBudget, and State Treasurer, Defendants.

Docket No. 51431.

Court of Appeals of Michigan.

Oct. 19, 1981.

Released for Publication Dec. 22, 1981.

Clark, Hardy, Lewis, Fine & Pollard, P.C. by Dennis R. Pollard and Gary Pollack, Birmingham, for plaintiffs.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Gerald F. Young and James E. Riley, Asst. Atty. Gen., for defendants.

Before DANHOF, C. J., and CAVANAGH and FREEMAN ^*, JJ.

PER CURIAM.

Plaintiffs seek mandamus to compel defendants to fund the Fitzgerald Public Schools in the same proportion those schools were funded in fiscal year 1978-79, pursuant to the so-called Headlee Amendment, Const. 1963, art. 9, §§ 25-34.

Plaintiffs claim that the state has provided for a smaller percentage of operating revenues for general public education in the Fitzgerald Public Schools, in addition to special education and driver education, than is required under the Headlee Amendment. Defendants deny that less money has been provided and dispute plaintiffs' standing to bring this suit. This Court issued an order to show cause, GCR 1963, 816.2(2)(c), thereby bringing the issues presented before us for plenary consideration.

Our consideration of the briefs and arguments convinces us that the issues presented involve questions of fact and mixed questions of fact and law, as well as questions of law. See Deziel v. Difco Laboratories, Inc., 394 Mich. 466, 475, 232 N.W.2d 146 (1975). Although there may be exceptions for extraordinary circumstances, in general mandamus will not lie in cases involving disputed or doubtful facts. Powers v. Secretary of State, 309 Mich. 530, 16 N.W.2d 62 (1944).

While plaintiffs assuredly have standing to contest the appropriations for public education, Waterford School Dist. v. State Board of Education, 98 Mich.App. 658, 296 N.W.2d 328 (1980), Const. 1963, art. 9, § 32, the fact that standing has been conferred does not alter the general principles applicable to prerogative writs. Lepofsky v. City of Lincoln Park, 48 Mich.App. 347, 356, 210 N.W.2d 517 (1973).

Where an administrative remedy exists, mandamus will lie only to compel the administrative agency to carry out its statutorily assigned function. Mandamus will not be utilized to usurp the powers and duties of the administrative agency. Sears v. Dep't of Treasury, 57 Mich.App. 218, 226 N.W.2d 63 (1974). This principle flows from the general rule that a precondition to judicial relief is exhaustion of administrative remedies. Oak Construction Co. v. Dep't of State Highways, 33 Mich.App. 561, 190 N.W.2d 296 (1971). The only exceptions to this rule are those situations in which resort to an alternative remedy would obviously be a useless effort, Welfare Employees Union v. Civil Service Comm, 28 Mich.App. 343, 184 N.W.2d 247 (1970), lv. den. 384 Mich. 824 (1971), or declaratory judgment actions challenging the constitutionality of the administrative remedy. Trever v. City of Sterling Heights, 37 Mich.App. 594, 195 N.W.2d 91 (1972), Dation v. Ford Motor Co., 314 Mich. 152, 22 N.W.2d 252 (1946).

In the present case, the Legislature has chosen to establish an administrative remedy by creating the local government claims review board, 1979 P.A. 101; M.C.L. § 21.240; M.S.A. § 5.3194(610). The statute creating this agency does not appear to be unconstitutional on its face, cf., Request for Advisory Opinion on the Constitutionality of 1979 PA 57, 407 Mich. 60, 281 N.W.2d 322 (1979), and 407 Mich. 506, 286 N.W.2d 686 (1979), inasmuch as Const. 1963, art. 9, § 34 directs the Legislature to "implement the provisions of Sections 25 through 33, inclusive, of this Article". It is thus particularly appropriate for this Court, at this time, to defer to the Legislature and the remedy it has provided to resolve these issues of first impression. Rostker v. Goldberg, --- U.S. ----, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981).

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