Glicker v. Michigan Liquor Control Commission

• Decision Date: 19 December 1947
• Docket Number: No. 5171.,5171.
• Citation: 75 F. Supp. 283
• Parties: GLICKER v. MICHIGAN LIQUOR CONTROL COMMISSION.
• Court: U.S. District Court — Western District of Michigan

75 F. Supp. 283

GLICKER v. MICHIGAN LIQUOR CONTROL COMMISSION.

No. 5171.

District Court, E. D. Michigan, S. D.

December 19, 1947.

Arnold F. Zeleznik, of Detroit, Mich., for plaintiff.

Eugene F. Black, Atty. Gen. of Michigan, and Charles M. A. Martin, Asst. Atty. Gen., for defendant.

LEDERLE, District Judge.

1. This action involves a petition filed in this court by Anna Glicker, a citizen of this District, praying for the issuance of a writ of mandamus by this court to command the respondent, Michigan Liquor Control Commission, to re-issue to her a Class "C" license under Michigan state law to sell intoxicating liquors in Detroit, her license for the year commencing May 1, 1944, having been revoked by respondent commission on January 4, 1945, on a finding that she was guilty of the charge of selling liquor to minors, after a de novo hearing of her appeal from a thirty-day suspension of the license imposed on this charge after a hearing before one commissioner. This is an original petition, not ancillary to enforcement of any order, judgment or decree in a cause of action pending in this court, and names no individual defendant.

A motion to dismiss this petition was granted for failure to state a cause of action upon which this court could or should grant relief.

On appeal, this decision was reversed in Glicker v. Michigan Liquor Control Comm., 6 Cir., 1947, 160 F.2d 96, holding that the complaint stated a good cause of action and that this court has jurisdiction to hear and determine the action and grant the relief sought, and remanding the action for trial upon the allegations of the petition that the respondent commission had intentionally discriminated against the petitioner in unlawfully, illegally, fraudulently and wilfully revoking her license solely for political purposes to give her license to one Gillies, a political worker, with the thought of treating petitioner in a different manner then any other holder of such a license, in violation of the "equal protection of the laws" clause of the Fourteenth Amendment to the United States Constitution.

In addition to claiming improper motive in cancelling her license petitioner also contends that the revocation was legally defective in two particulars, namely, that only the three appointed members of the commission sat upon her appeal hearing and that it was necessary to constitute a quorum that two additional ex officio members should have been present, and, secondly, that upon such an appeal the commission's sole discretion was to modify or rescind the prior thirty-day suspension and that it was without discretion to cancel the license. Both these legal conclusions are disputed by respondent.

Coupled with its denial that the revocation of petitioner's license was unlawful, fraudulent, or the result of any discrimination or ulterior motive, intentional or otherwise, respondent commission still contends that as a matter of law this action is fatally defective for a number of reasons, namely: that this court is without jurisdiction to issue an original writ of mandamus, or its modern equivalent under Federal Rules of Civil Procedure, Rule 81(b), 28 U.S.C.A. following section 723c, to compel action by state officers, for the same reasons upon which such a holding was based in Youngblood v. United States, 6 Cir., 1944, 141 F.2d 912, at page 914; that this action is against a state commission alone and not against any person whose personal compliance with a mandatory writ could be compelled or against whom any redress could be granted; that petitioner did not allege or prove that she had exhausted her state court remedies by appealing the commission's revocation through certiorari to the Michigan state court, as she had a right to do under M.S.A. 18.991, Comp.Laws Supp.1940, § 9209-35, wherein, as stated in Slezenger v. Michigan Liquor Control Comm., 1946, 314 Mich. 644, at page 646, 23 N.W.2d 243, "All questions * * * as to the legality of the revocation could properly have been raised in certiorari proceedings. There it could be determined whether plaintiff had a fair hearing and whether there were such showings of facts and law as to justify the commission in entering the order, and to show whether the commission acted capriciously, fraudulently or illegally"; also, that petitioner did not allege or prove that her state court remedies were inadequate; that petitioner did not allege or attempt to prove that she was innocent of the offense for the commission of which her license was revoked; that the commission's action in granting, denying, suspending, or revoking a liquor license is discretionary, and, therefore, not reviewable by mandamus. However, the appeal opinion and mandate in this case, reversing the granting of a motion to dismiss, established the law of this case, binding upon this court, that this court should hear the proofs, and if they sustained the allegations of the petition, grant the relief sought. Accordingly, a trial on the merits was held.

2. At the time of the hearing of petitioner's appeal in January, 1945, the commission was composed of appointed Commissioners John P. Aaron, Felix H. H. Flynn and Theodore I. Fry, with Governor Harry F. Kelly and Secretary of State John Dignan as ex officio members. By amendment to the statute which became effective April 30, 1945, M.S.A. 18.975, Comp. Laws Supp.1945, § 9209-20, the provision for ex officio members was deleted; so, that, at the time of institution of this suit, the commission consisted only of said three appointed commissioners. The present commission is composed of appointed commissioners Owen J. Cleary, G. Mennen Williams and Felix H. H. Flynn. No individual member of the former or present commission has been named as a party to this action.

3. A transcript of proceedings before the commission in relation to petitioner's license was received in evidence. This discloses the following: In addition to two prior convictions for infractions of the state liquor law in the conduct of her bar business, in the fall of 1944 petitioner was charged with the offense of selling liquor to minors. A formal hearing was held thereon before Commissioner Flynn on November 21, 1944, at which petitioner was represented by her attorney, Edward F. Collins, and witnesses were examined for both sides. As a result of this hearing, Commissioner Flynn found petitioner guilty of her second offense of serving liquor to minors, and ordered her license suspended for 30 days, commencing December 4, 1944. On November 22, 1944, through attorney John B. Ambrose, petitioner gave notice of appeal to the full commission. On January 4, 1945, petitioner, attorney Ambrose and the witnesses appeared before Commissioners Aaron, Flynn and Fry. A de novo hearing was held, at which the witnesses again testified. To the record of intoxicating liquor having been served to the minors involved, two school girls aged 14 and 15, for a period of some five hours on the night of August 20 and the early morning of August 21, 1944, additional testimony was introduced which revealed a sordid tale of attempts thereafter by petitioner, and those acting for her with her knowledge and consent, to get these girls to testify that no liquor had been served to them at petitioner's bar. These ran the gamut from fictitious telephone calls to the girls' homes so that their parents would permit them to go out, picking up the girls on street corners, conspiratorial conferences in a garage and in automobiles, dictation to the girls of perjured affidavits, taking them before a notary for the administration of false oaths, back-door visits to petitioner's bar, supplying the girls with various articles of clothing, including a fur coat, and payment to the girls of various sums of money, with part of which they left home unknown to their parents and financed a trip to Chicago, to be met upon their return by a Detroit policewoman, who confiscated the clothing as evidence. The testimony offered by petitioner to rebut this showing was so replete with inconsistencies and contradictions that it tended to prove rather than disprove the showing. As a result of this hearing, the commissioners voted unanimously to cancel petitioner's license, which was done on that date, January 4, 1945.

4. This petition for madamus was filed through petitioner's present attorney on August 23, 1945. Until this petition was filed, no objection was made by petitioner or any of the three attorneys who represented her as to the composition of either commission hearing body. No application for certiorari was made to the Michigan state courts.

5. In this mandamus action, petitioner has neither alleged in her petition, nor offered any testimony tending to show, that she was not guilty of the offense of selling liquor to minors, for which her license was cancelled. In fact, as pointed out by the appellate court, the petition contains an admission of guilt. See page 97 of 160 F.2d, wherein the appellate court states 6 Cir., 1947, 160 F.2d 97: "The complaint alleges * * * that the license * * * was suspended * * * because appellant had sold liquor to minors in violation of the state law." Likewise, petitioner has advanced no claim that there was not substantial, competent testimony of her guilt of the offense adduced at the commission hearings. Except for the transcript of commission proceedings received as an exhibit herein, this record is silent of any mention of petitioner's guilt or innocence of this offense. On this record, I find that petitioner was guilty of the offense of selling liquor to minors on August 20 and 21, 1944, which was her second offense of this type, that this was followed by attempts on her part to tamper with the witnesses, and that the commission finding of guilt and consequent revocation of the license are supported by substantial, competent testimony adduced at the commission hearing.

6. Petitioner's theory, upon which she based her contention that s...