Michigan Ass'n for Retarded Citizens v. Wayne County Probate Judge, Docket No. 77-535

• Decision Date: 09 November 1977
• Docket Number: Docket No. 77-535
• Citation: 79 Mich.App. 487,261 N.W.2d 60
• Parties: MICHIGAN ASSOCIATION FOR RETARDED CITIZENS, a nonprofit Michigan Corporation, Robert J. Thayer, by his guardian Mary Thayer, and Walter Perkowski, by his guardian Mary Ann Lukasik, Plaintiffs-Appellants, v. WAYNE COUNTY PROBATE JUDGE, Defendant-Appellee. 79 Mich.App. 487, 261 N.W.2d 60
• Court: Court of Appeal of Michigan — District of US

Page 60

261 N.W.2d 60

MICHIGAN ASSOCIATION FOR RETARDED CITIZENS, a nonprofit

Michigan Corporation, Robert J. Thayer, by his guardian Mary

Thayer, and Walter Perkowski, by his guardian Mary Ann

Lukasik, Plaintiffs-Appellants, v. WAYNE COUNTY PROBATE JUDGE, Defendant-Appellee.

Docket No. 77-535.

79 Mich.App. 487, 261 N.W.2d 60

Court of Appeals of Michigan.

Nov. 9, 1977.

Released for Publication Jan. 12, 1978.

[79 MICHAPP 489] Jon R. Garrett and David T. Verseput and William J. Campbell, Lansing, for plaintiffs-appellants.

John J. McCann, Detroit, Thomas R. Wheeker, Asst. Atty. Gen., Lansing, for defendant-appellee.

Before RILEY, P. J., and BASHARA and MAHINSKE, ^* JJ.

MAHINSKE, Judge.

Plaintiffs Thayer and Perkowski were among over 100 mentally retarded individuals for whom guardianship hearings were [79 MICHAPP 490] held by defendant on October 1, 1976, at the Oakdale Center for Developmental Disabilities. These hearings began at approximately 10:30 a. m. and were completed at 11:45 a. m. the same day. Plaintiffs alleged that the manner in which the hearings were held, at this institution and at other state institutions at other times by defendant, violated the new Mental Health Code, M.C.L.A. § 330.1001 et seq.; M.S.A. § 14.800(1) et seq. Plaintiffs sought an order of superintending control pursuant to GCR 1963, 711 requiring defendant to rehear all guardianship petitions for persons affected, and to hold all future hearings in compliance with the Mental Health Code. The Wayne County Circuit Court declined to exercise superintending control and granted defendant's motion for summary judgment. We reverse and remand for further proceedings.

Plaintiffs Thayer and Perkowski have been residents of Oakdale Center for over 20 years. They and other mentally retarded persons were admitted to state institutions under the former mental health law, which allowed commitment by the court upon a sufficient showing of mental disease. Under the new mental health law, however, there are two types of admission to institutions for the mentally retarded: (1) administrative admission, M.C.L.A. § 330.1509 et seq.; M.S.A. § 14.800(509) et seq.; and (2) judicial admission, M.C.L.A. § 330.1515 et seq.; M.S.A. § 14.800(515) et seq. Judicial admission is limited to persons who can reasonably be expected to physically injure themselves or others and who have overtly acted in a manner which supports this expectation. Administrative admission for adults may be executed by the individual himself if he is competent to do so, or by the individual's guardian, M.C.L.A. § 330.1509(2); M.S.A. § 14.800(509)(2), [79 MICHAPP 491] providing the guardian has been specifically empowered to do so by the probate court. M.C.L.A. § 330.1622(2); M.S.A. § 14.800(622)(2). These provisions radically alter the former statutes.

To the extent that the procedures followed in the original admissions of plaintiffs and other mentally retarded individuals did not comport with the new Mental Health Code, redeterminations were required. M.C.L.A. § 330.2104; M.S.A. § 14.800(1104) provides:

"As soon as practicable after this act shall take effect but no later than 2 years after this act shall take effect, all actions then having legal effect under any provision of the acts and parts of acts repealed by this act and which are inconsistent with any provision of this act shall be redetermined and made consistent with the provisions of this act."

It is against this background that the guardianship hearings for plaintiffs Thayer and Perkowski took place. The entire transcript of plaintiff Perkowski's hearing was as follows:

"MR. RADER: In the matter of Walter Perkowski.

"THE WITNESS: Walter Perkowski is currently a resident of Oakdale Center. He needs constant supervision on a daily basis and he cannot take care of basic needs. I would recommend that a guardian be appointed.

"THE COURT: Has the ward been served, Lois?

"THE CLERK: Yes, he has.

"THE COURT: I will appoint Mary Ann Lukasik as the plenary guardian and authorize administrative admission. Are there any members of the family that wish to be heard here? There appears to be none. Okay, call the next case."

The circuit court was asked to decide if the [79 MICHAPP 492] above hearing complied with the requirements of the new mental health law. We find that the circuit judge abused his discretion in refusing to answer this question. The process of seeking an order of superintending control is not an appeal. It is a new lawsuit, with different parties and different purposes. People v. Flint Municipal Judge, 383 Mich. 429, 432, 175 N.W.2d 750 (1970). It is an original civil action designed to require the defendant to perform a clear legal duty in the instant case, to conduct guardianship hearings in accord with the State Mental Health Code.

The Mental Health Code provides safeguards designed to protect the substantive rights of the mentally retarded. Section 618, M.C.L.A. § 330.1618(1); M.S.A. § 14.800(618)(1) imposes certain duties on the probate judge:

"The court, at a hearing convened under this chapter for the appointment of a guardian, shall:

(a) Inquire into the nature and extent of the general intellectual functioning of the individual asserted to need a guardian.

(b) Determine the extent of the impairment in his adaptive behavior.

(c) Ascertain his capacity to care for himself and his estate."

In addition, section 628 of the act, M.C.L.A. § 330.1628(2); M.S.A. § 314.800(628) provides:

"Prior to the appointment, the court shall make a reasonable effort to question the mentally retarded person concerning his preference regarding the person to be appointed guardian, and any preference indicated shall be given due consideration by the court."

Plaintiff Perkowski's hearing did not comply with these statutory mandates.

[79 MICHAPP 493] In testing defendant's motion for summary judgment the circuit court was required to accept as true all well-pleaded factual allegations in plaintiffs' complaint. GCR 1963, 117.2(1); Borman's, Inc. v. Lake State Development Co., 60 Mich.App. 175, 179, 230 N.W.2d 363 (1975). Here plaintiffs alleged that defendant acted contrary to the Mental Health Code as to all members of a specified class. They also asserted the absence of any other plain, speedy and adequate remedy available to the class as a whole. These allegations, if proven, taken together with those concerning violations by defendant of specific...