Michigan Sup'rs Union O.P.E.I.U. Local 512 v. Department of Civil Service

• Citation: 531 N.W.2d 790,209 Mich.App. 573
• Decision Date: 03 April 1995
• Docket Number: Docket No. 169850
• Parties: MICHIGAN SUPERVISORS UNION O.P.E.I.U. LOCAL 512, Plaintiff-Appellant, v. DEPARTMENT OF CIVIL SERVICE, Department of Corrections, and Department of Mental Health, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

Page 790

531 N.W.2d 790

209 Mich.App. 573

MICHIGAN SUPERVISORS UNION O.P.E.I.U. LOCAL 512, Plaintiff-Appellant, v. DEPARTMENT OF CIVIL SERVICE, Department of Corrections, and Department of Mental Health, Defendants-Appellees.

Docket No. 169850.

Court of Appeals of Michigan.

Submitted Jan. 10, 1995, at Lansing.

Decided April 3, 1995, at 9:45 a.m.

Released for Publication May 24, 1995.

John M. Strachan and Robert G. Fleming, Lansing, for plaintiff.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Deborah Anne Devine, Kathleen L. Cavanaugh, Clive D. Gemmill, Mark S. Meadows, and Thomas A. Kulick, Asst. Attys. Gen., for defendants.

Before McDONALD, P.J., and TAYLOR and HOEKSTRA, JJ.

TAYLOR, Judge.

Plaintiff, a union representing classified civil service employees of the Department of Corrections (DOC), appeals from the trial court's order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(4), lack of subject-matter jurisdiction. We affirm.

This case arises out of an action taken by the State of Michigan in response to a consent judgment entered in a federal civil rights lawsuit filed against the state by the United States Attorney General in the United States District Court for the Western District of Michigan alleging that the delivery of mental health services to prison inmates was below constitutional standards. See United States v. Michigan, Docket No. G-84-63 (WD Mich., 1986). Pursuant to that federal court judgment, the state closed the Riverside Psychiatric Hospital in Ionia, established a new correctional mental health facility in Ypsilanti, and transferred responsibility for inmate mental health services from the DOC to the Department of Mental Health (DMH). As a result, several DOC employees at the Riverside facility were to be reassigned to the DMH in Ypsilanti effective October 1, 1993.

On September 21, 1993, plaintiff filed a complaint in the Ionia Circuit Court seeking an injunction against the allegedly unconstitutional movement of employees from the DOC to the DMH. Plaintiff alleged that the mandate in Const.1963, art. 11, § 5, that the Civil Service Commission (CSC) retain exclusive authority over all personnel transactions and employment conditions, had been violated by the use of the relocation procedure that had not been established by the CSC. As a result, plaintiff argued, DOC employees had been forced to accept an undesired geographic reassignment without the employee performance protections that would have been available if CSC procedures had been utilized. Plaintiff asserted that § 5 afforded it the right to ask a circuit court to enjoin the relocation procedure without the need to first exhaust all administrative remedies.

In response, the CSC, the DOC, and the DMH argued that plaintiff failed to meet its burden of showing cause for the issuance of a preliminary injunction, and that there were administrative remedies available to plaintiff that had not been exhausted or even pursued. The CSC also stated that the relocation plan did not violate CSC procedure. The DOC, joined by the DMH and the CSC, moved for summary disposition on the basis that the circuit court lacked subject-matter jurisdiction because plaintiff had failed to exhaust the remedies available through the grievance procedure of either the DOC or the CSC. The circuit court granted the motion.

Pursuant to Const. 1963, art. 11, § 5, the CSC, among other things, shall make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service. The provision also requires the CSC to establish a grievance procedure for aggrieved employees. The provision concludes with the following language: "Violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state."

On appeal, plaintiff argues that defendants' relocation procedure violates the state constitution because it is not in compliance with the CSC's established procedures. Plaintiff asserts that because the CSC has no procedure to enjoin two departments from making an interdepartmental contract that affects employee rights, injunctive relief can be sought immediately in circuit court. Plaintiff does not dispute that both the DOC and the CSC have established grievance procedures to handle the underlying claims. Nor does plaintiff offer any argument or factual circumstance suggesting that the pursuit of this claim through the CSC would be an exercise in futility. Rather, plaintiff argues that, because the constitution has been violated, the exhaustion requirement is obviated and the circuit court is able to enjoin the ongoing constitutional violation.

Premised on the doctrine of separation of powers, ¹ it is well settled that where an administrative grievance procedure is provided, exhaustion of that remedy is required before the circuit court can review the case. M.C.L. § 24.301; M.S.A. § 3.560(201); Mollett v. Taylor, 197 Mich.App. 328, 337, 494 N.W.2d 832 (1992). Yet, a plaintiff may seek judicial review of a nonfinal agency decision when a final agency decision or order would not provide an adequate remedy, Bonneville v. Michigan Corrections Organization, Service Employees Int'l Union, Local 526M, AFL-CIO, 190 Mich.App. 473, 475, 476 N.W.2d 411 (1991), or if pursuing the administrative remedy would be an exercise in futility and "nothing more than a formal step on the way to the courthouse," Manor House Apts. v. Warren, 204 Mich.App. 603, 605, 516 N.W.2d 530 (1994).

The question before this Court is whether the alleged existence of a constitutional violation fits within one of these two exceptions to the exhaustion requirement. This is a point of some confusion. See generally LeDuc, Michigan Administrative Law, § 10:38, pp. 65-67. This Court has stated that our constitution permits any citizen to seek injunctive or mandamus relief to assure that any of the provisions of Const. 1963, art. 11, § 5 are complied with. Calcatera v. Civil Service Comm., 52 Mich.App. 27, 31, 216 N.W.2d 613 (1974) (emphasis in original). This Court has also held that employees of the state classified civil service may directly bring suit in the circuit court to enjoin the CSC from violating Const. 1963, art. 11, § 5. Marsh v. Civil Service Dep't, 142 Mich.App. 557, 561, 370 N.W.2d 613 (1985). Such statements must be read in context, however. In both Marsh and Calcatera the plaintiffs' theories were...