Michigan Civil Rights Commission v. Clark

• Decision Date: 18 December 1973
• Docket Number: N,14,Nos. 13,s. 13
• Citation: 390 Mich. 717,212 N.W.2d 912
• Parties: MICHIGAN CIVIL RIGHTS COMMISSION, Plaintiff-Appellant, v. Mrs. Ralph G. CLARK, Defendant-Appellee. Frank MISKO and Bernice Misko, his wife, Plaintiffs-Appellees, v. MICHIGAN CIVIL RIGHTS COMMISSION, Defendant-Appellant. ov. Term. 390 Mich. 717, 212 N.W.2d 912
• Court: Michigan Supreme Court

Page 912

212 N.W.2d 912

MICHIGAN CIVIL RIGHTS COMMISSION, Plaintiff-Appellant, v. Mrs. Ralph G. CLARK, Defendant-Appellee.

Frank MISKO and Bernice Misko, his wife, Plaintiffs-Appellees, v. MICHIGAN CIVIL RIGHTS COMMISSION, Defendant-Appellant.

Nos. 13, 14, Nov. Term.

390 Mich. 717, 212 N.W.2d 912

Supreme Court of Michigan.

Dec. 18, 1973.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael A. Lockman, Asst. Atty. Gen., Detroit, for Mich. Civil Rights Commission.

Robert J. Lord, Fair Haven, for Frank and Bernice Misko.

Fraser, Trebilcock, Davis & Foster, Lansing (Everett R. Trebilcock, Lansing, of counsel), for amicus curiae, Mich. Real Estate Assn.

Before the Entire Bench.

LEVIN, Justice.

The questions presented are whether a person proceeded against before the Civil Rights Commission has a constitutional right to remove the proceedings to a court and whether the provisions of § 401a of the Fair Housing Act of 1968 ¹ authorizing the removal of CRC proceedings to the circuit court are constitutional.

Complaints were filed with the CRC alleging that Mrs. Ralph G. Clark discriminated in renting on account of race or color. Another complaint filed with the CRC alleged that Mr. and Mrs. Frank Misko discriminated in refusing to allow complainants to purchase the Misko home.

Clark and the Miskos filed petitions in the circuit courts of the county of their residence seeking the removal of the CRC proceedings to the circuit court pursuant to § 401a of the Fair Housing Act of 1968. That section provides that upon the filing of such a petition and payment of the required filing fee, 'the court shall immediately issue an order removing the complaint from the jurisdiction of the civil rights commission. The court shall assume jurisdiction of the proceedings and the civil rights commission shall take no further action in regard to the complaint upon receiving a copy of the court order.' The petitions for removal were granted.

I

In upholding the constitutionality of the removal provision (§ 401a), the Court of Appeals considered the so-called diminish-the-right clause of Const.1963, art. 5, § 29 ² establishing the CRC. The Court said that the debate at the Constitutional Convention 'confirms our opinion that the language involved means just what it says, namely: a party to a proceeding before the CRC is entitled to a court determination on the complaint in lieu of a commission determination, if he so desires.' Michigan Civil Rights Commission v. Clark, 42 Mich.App. 271, 275, 201 N.W.2d 658, 660 (1972).

The Attorney General contends that the diminish-the-right clause does not create, or permit the Legislature to create, an automatic right to remove a proceeding from the jurisdiction of the CRC.

The Miskos assert that § 401a implements the diminish-the-right clause.

The amicus curiae, Michigan Real Estate Association, proffers an alternative analysis asserting that since the right of the complainants and of the CRC to proceed against Clark and the Miskos is derived from legislation ³ the Legislature can attach any conditions it may wish to that right. The Legislature, says the amicus, may oust the CRC altogether from jurisdiction of a legislatively created right.

II

There were statements by some delegates in the lengthy arguments at the Constitutional Convention which tend to support the view that the diminish-the-right clause was intended to create a constitutional right to remove any CRC proceeding to the courts. We are persuaded, however, that John B. Martin, the chairman of the committee responsible for the CRC proposal, speaking shortly before the final vote, expressed the ultimate understanding of the meaning of the diminish-the-right clause:

'Mr. President, it seems to me that it should be clear that this does not permit a defendant to take his cause elsewhere unless his rights are in some way violated. He doesn't get out of dealing with the commission simply because he starts an action in a court. If he takes the action to a court, it is because his due process is being violated in some way, and if that is true, then he has a case. If it isn't, he has no case and he can be in court but he is also still involved with the commission and the commission can proceed just as it otherwise would. * * *.'

Just as § 29 of Article 5 does not create any new civil rights (see fn. 3) neither does it create a new judicial remedy. The diminish-the-right clause assures persons against whom CRC proceedings are instituted that, despite the constitutional status of the CRC, they may have recourse to the courts of this State if the CRC proceeds in a manner justifying judicial intervention or, as the amicus states it, 'under appropriate circumstances', '(A)n individual against whom the Commission has proceeded may seek injunctive relief from threatened harm under the same principles applicable to threatened illegal action by other administrative agencies,' ⁴ including further developments (after the adoption of the 1963 Constitution) of general application of such principles.

III

Section 29 obliges the CRC to 'investigate' alleged discrimination and to 'secure' the equal protection of civil rights and grants the CRC the power to 'issue appropriate orders' and provides that an appeal from such an order 'shall be tried de novo before the circuit court.'

CRC's duty to investigate alleged discrimination and to secure the equal protection of civil rights is qualified by the words 'in a manner which may be prescribed by law.' The power to issue appropriate orders is subject to the qualification 'in accordance with the provisions of this constitution and of general laws governing administrative agencies.'

A balanced construction of § 29 requires recognition of limitations on the power of the Legislature to restrict the powers of the CRC. The CRC, just as the Legislature, Governor and this Court, derives its powers directly from the people under the Constitution.

The Legislature, although it may legislate with regard to the exercise of executive and judicial functions, may not prevent the executive or judicial branches from exercising their powers. ⁵ Similarly, the Legislature, although it may legislate with regard to the CRC, may not do so in a manner which prevents the CRC from functioning effectively.

The sense of the Constitution is that the CRC shall have the power to 'investigate,' 'secure,' and 'issue appropriate orders' regarding any civil right guaranteed by law subject to reasonable regulation by the Legislature.

While the Constitution contemplates the legislative enactment of reasonable regulations for CRC procedures and remedies, ⁶ it does not authorize legislation preventing the CRC from securing equal protection of a civil right guaranteed by law.

The removal provision, for all practical purposes, eliminates the constitutionally-expressed power of the CRC to investigate and secure the legislatively-created civil right against discrimination in the rental and sale of private housing by precluding the CRC from issuing an appropriate order in any case where the person charged timely exercises the statutory right of removal. If we were to hold the removal provision constitutional, the CRC would have no meaningful function in enforcing that civil right against persons who choose to exercise that right.

It is not necessary to decide whether there is a civil right against discrimination in private rental and sale of housing apart from the provisions of the Fair Housing Act of 1968. Even if this civil right is legislatively derived, once it becomes a 'civil right guaranteed by law' the CRC has the power and the duty to investigate allegations of unconstitutional discrimination in the enjoyment of that right, to secure equal protection of that right, and to issue appropriate orders to enforce that right.

We conclude that § 401a is not a reasonable regulation of CRC procedures and remedies and it is unconstitutional.

IV

On the day following the filing with the CRC of the complaint against the Miskos, the CRC sought and obtained a circuit court injunction restraining the Miskos from taking any action to sell or otherwise dispose of their house and doing or procuring any act which would tend to render ineffectual any order of the CRC. Section 405 of the Fair Housing Act of 1968 provides for the filing of such a petition to preserve the status quo pending CRC consideration of a complaint and charge. ⁷ The filing of such a petition which does not seek an adjudication on the merits, does not operate as an election of remedies barring the CRC from issuing a charge pursuant to a complaint and issuing an appropriate order after a hearing on the charge.

Reversed and remanded to the circuit courts with directions that they dismiss the petitions removing the CRC proceedings to those courts.

T. M. KAVANAGH, C.J., and COLEMAN, WILLIAMS, SWAINSON and T. G. KAVANAGH, JJ., concur.

BRENNAN, Justice (dissenting).

I do not accept my brother's analysis of the constitutional role of the Civil Rights Commission.

The Commission is not a branch of government. Although it derives its power from the constitution, it is still a commission, and properly an arm of the executive branch of government.

It is a constitutional commission, not unlike the State Highway Commission (art. 5, § 28) or the State Civil Service Commission (art. 11, § 5).

The Civil Rights Commission is not a court. It has no in personam jurisdiction over citizens. It may compel the attendance of witnesses only through the aid of a court of competent jurisdiction. Its final orders do not rise to the dignity of writs; that is to say, the commission has no power to direct the sheriff or other law enforcement officer to carry out its orders.

Ultimate enforcement of commission orders requires application to a circuit court. In such case, the commission may appear in circuit court as a litigant, urging that the judicial power of the state be...