Leelanau Cnty. Sheriff v. Kiessel

• Decision Date: 05 July 2012
• Docket Number: Docket No. 302195.
• Citation: 297 Mich.App. 285,824 N.W.2d 576
• Parties: LEELANAU COUNTY SHERIFF v. KIESSEL.
• Court: Court of Appeal of Michigan — District of US

297 Mich.App. 285

824 N.W.2d 576

LEELANAU COUNTY SHERIFF

v.KIESSEL.

Docket No. 302195.

Court of Appeals of Michigan.

Submitted May 10, 2012, at Marquette.

Decided July 5, 2012, at 9:00 a.m.

Cohl, Stoker & Toskey, P.C., Lansing (by Bonnie G. Toskey), for the Leelanau County Sheriff and Leelanau County.

Michael H. Dettmer, William R. Rastetter, Traverse City, and Katherine E. Redman, for James Kiessel.

Abbott Nicholson, P.C., Detroit (by John R. McGlinchey and Kristen L. Baiardi), for Amicus Curiae the Michigan Sheriffs' Association.

Before: MARKEY, P.J., and BECKERING and M.J. KELLY, JJ.

PER CURIAM.

Defendant James Kiessel appeals by right a circuit court order granting plaintiffs the Leelanau County Sheriff and Leelanau County a writ of superintending control vacating an order of the Leelanau County Prosecuting Attorney (PA), who was serving as a hearing officer under the veterans preference act (VPA), MCL 35.401 et seq. The PA's order had directed the sheriff to reinstate Kiessel, with back pay, as a deputy. The circuit court held that the PA lacked jurisdiction under the VPA to review the sheriff's discharge of Kiessel, an honorably discharged veteran, because under MCL 51.70, deputies serve at a sheriff's pleasure. We hold, for the reasons discussed hereafter, that the VPA does authorize the PA to review the sheriff's discharge of Kiessel and, if appropriate, to order his “reinstatement at the same rate of pay received by him at the date of dismissal,” with back pay. MCL 35.402. But any order of reinstatement must recognize the discretion vested in the sheriff regarding the manner in which the duties of the office are fulfilled, including the delegation of law enforcement powers. See Fraternal Order of Police, Ionia Co. Lodge No. 157 v. Bensinger, 122 Mich.App. 437, 445–446, 333 N.W.2d 73 (1983); Labor Mediation Bd. v. Tuscola Co. Sheriff, 25 Mich.App. 159, 164, 181 N.W.2d 44 (1970). Accordingly, we vacate the writ of superintending control and remand to the circuit court to consider in the first instance the merits of plaintiffs' appeal of the PA's order.

I. KIESSEL DID NOT WAIVE APPELLATE REVIEW

We first reject plaintiffs' argument that Kiessel waived appellate review by failing to furnish, as required by MCR 7.210(B)(1)(a), the complete transcripts of the VPA proceedings and a hearing held on October 25, 2010, when the circuit court remanded this case to the PA to consider the jurisdictional question at issue in this appeal. Plaintiffs contend that the failure to file the “full transcript,” whether relevant or not to the issues on appeal, constitutes a waiver of appellate review. See, e.g., Reed v. Reed, 265 Mich.App. 131, 160–161, 693 N.W.2d 825 (2005), and Nye v. Gable, Nelson & Murphy, 169 Mich.App. 411, 413–414, 425 N.W.2d 797 (1988).

Kiessel argues that he has now complied with MCR 7.210(B)(1)(a) by providing transcripts of all proceedings in the circuit court. He further contends that the failure to initially file some transcripts should not constitute a waiver of his right to appeal because the missing transcripts were not relevant to the issues on appeal. Kiessel also asserts that the issues on appeal present legal questions that this Court reviews de novo, and the omitted transcripts are not necessary for this Court's review. Additionally, he notes that the VPA hearing transcripts are part of the circuit court record before this Court.

We find Kiessel's arguments have merit and conclude that he has not waived his right to appellate review.

II. FACTS AND PROCEEDINGS

On October 30, 2009, the elected Sheriff of Leelanau County, Michael Olstersdorf, terminated Kiessel from his position as a deputy sheriff with the rank of sergeant for “severe misconduct” in the arrest of two persons. ¹ The parties agree that Kiessel is an honorably discharged veteran under Michigan law who would ordinarily have a right under the VPA to a hearing regarding his discharge. MCL 35.401; MCL 35.402. Kiessel timely requested a hearing before the statutory hearing officer, Leelanau County Prosecutor Joseph T. Hubbell, naming both the sheriff and the county as respondents. After a three-day hearing, the PA issued a lengthy opinion and order on May 12, 2010, finding that Kiessel's conduct did not constitute “official misconduct” or “serious or willful neglect in the performance of duty” under MCL 35.402 and ordering the sheriff to reinstate Kiessel to his position with full back pay and benefits.

Plaintiffs timely filed a complaint for a writ of superintending control in the circuit court, asserting among other reasons for the issuance of a writ that the PA was without jurisdiction to order an elected sheriff to hire, fire, or reinstate any deputy, and also was without jurisdiction to order the county to provide back pay to a discharged deputy.² Specifically, plaintiffs asserted that the sheriff's constitutional authority, Const. 1963, art. 7, §§ 4 and 6, and statutory authority to appoint deputies, MCL 51.70, superseded the authority the VPA granted to the PA under MCL 35.402. At a circuit court hearing on June 28, 2010, plaintiffs' counsel conceded this issue had not been raised before the PA. The circuit court ruled it would remand the matter to the PA to consider in the first instance whether the PA had subject matter jurisdiction of Kiessel's claim for reinstatement under the VPA. The court entered its order of remand on July 19, 2010.

On September 17, 2010, the PA issued another opinion and order, upholding his own jurisdiction under the VPA, confirming his original ruling in favor of Kiessel, and again ordering the sheriff to reinstate Kiessel with back pay. Alternatively, the PA ruled he had authority under the VPA to order the county, as Kiessel's coemployer, to reinstate Kiessel with back pay.

The circuit court heard oral arguments on the jurisdictional issue on November 12, 2010, and concluded that deputy sheriffs did not fall within the provisions of the VPA. The court reasoned that a sheriff's “power to appoint and revoke law enforcement powers ... override all statutory and contract rights of the deputy.” The court noted that although the sheriff's power to appoint and revoke the appointment of deputies was codified in MCL 51.70, it was of “constitutional magnitude and therefore cannot be overridden by a statute such as the Veterans Preference Act or any other statute.” The circuit court also relied on Abt v. Wilcox, 264 Mich. 183, 249 N.W. 483 (1933), which held that the VPA does not protect a deputy appointed by a sheriff whose term has expired when a newly elected sheriff fails to reappoint the deputy. The circuit court reasoned that because the VPA does not apply to end-of-term reappointments, the sheriff's exercise of the plenary authority under MCL 51.70 was not subject to review under the VPA in other situations.

On December 9, 2010, the circuit court entered its order providing that “for the reasons stated on the record,” the two orders the PA had issued regarding Kiessel “are hereby vacated.” The same order denied Kiessel's motions for summary disposition. The circuit court denied reconsideration on January 10, 2011. Kiessel appeals by right.

III. ANALYSIS

This case presents issues of constitutional and statutory interpretation, which are both questions of law this Court reviews de novo. Niles Twp. v. Berrien Co. Bd. of Comm'rs, 261 Mich.App. 308, 312, 683 N.W.2d 148 (2004). MCL 51.70, on which the circuit court and plaintiffs rely, provides in pertinent part: “Each sheriff may appoint 1 or more deputy sheriffs at the sheriff's pleasure, and may revoke those appointments at any time.” By its plain terms this provision contains no limit on the discretion of the sheriff to appoint and revoke the appointment of deputy sheriffs. But Kiessel argues that the VPA limits MCL 51.70 by providing that the sheriff may discharge deputies who are also honorably discharged veterans only for just cause.³

We first reject plaintiffs' argument that because the sheriff is a constitutional officer the Legislature may not limit the sheriff's common-law or statutory ability to discharge deputies at will. In Bensinger, 122 Mich.App. at 444, 333 N.W.2d 73, this Court noted that “the Legislature may not vary the duties and powers of the sheriff in a way which changes the legal character of the office.” But this Court has also held that “the sheriff's power to hire, fire and discipline is not absolute.” Nat'l Union of Police Officers Local 502–M, AFL–CIO v. Wayne Co. Bd. of Comm'rs, 93 Mich.App. 76, 89, 286 N.W.2d 242 (1979). Indeed, our Constitution expressly confers on the Legislature the authority to prescribe the “duties and powers” of the sheriff. Const. 1963, art. 7, § 4 (“There shall be elected for four-year terms in each organized county a sheriff ... whose duties and powers shall be provided by law.”). Moreover, the Legislature has the authority to alter or abolish the common law. Const. 1963, art. 3, § 7; Hinojosa v. Dep't of Natural Resources, 263 Mich.App. 537, 546, 688 N.W.2d 550 (2004). Consequently, Michigan's Constitution does not preclude the Legislature from limiting the sheriff's authority to discharge deputies at will, whether that authority emanates from the common law or from statute.

Second, because nothing in the Constitution prevents the Legislature from limiting the sheriff's ability to discharge deputies at will, the issue presented in this case is one solely of statutory interpretation: Did the Legislature intend the VPA as an exception to a sheriff's authority under MCL 51.70 to appoint or remove a deputy at will, or did the Legislature intend that the VPA would not apply to honorably discharged veterans who are appointed sheriff's deputies? Although this is a close question, we conclude that appellant presents the better arguments regarding statutory construction: the Legislature intended the VPA to apply to all public employees who are honorably discharged veterans, including those...