Payne, In re, Docket No. 94486

• Decision Date: 29 March 1994
• Docket Number: No. 6,O,Docket No. 94486,6
• Citation: 514 N.W.2d 121,444 Mich. 679
• Parties: In re Marcia PAYNE. Marcia PAYNE, Plaintiff-Appellant/Cross-Appellee, v. MUSKEGON, Defendant-Appellee/Cross-Appellant. Calenderct. Term 1993.
• Court: Michigan Supreme Court

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514 N.W.2d 121 444 Mich. 679 In re Marcia PAYNE.
Marcia PAYNE, Plaintiff-Appellant/Cross-Appellee,
v.
MUSKEGON, Defendant-Appellee/Cross-Appellant. Docket No. 94486.
Calender No. 6, Oct. Term 1993. Supreme Court of Michigan. March 29, 1994.

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[444 Mich. 682] Pinsky, Smith, Fayette & Hulswit, H. Rhett Pinsky, Grand Rapids, for plaintiff-appellant.

John C. Schrier, Parmenter O'Toole, Muskegon, for Marcia Aslakson and Bd. of Civ. Service Com'rs for City of Muskegon.

OPINION

BOYLE, Justice.

This case presents the question of the [444 Mich. 683] standard of review of the factual findings of a municipal civil service commission. We hold that a reviewing court should accept findings supported by substantial evidence. Because the common-law substantial evidence test satisfies the minimum constitutional requirements for judicial review of administrative agency findings, we need not reach the question whether Const.1963, art. 6, § 28 applies. ¹

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The decision of the Muskegon Civil Service Commission was supported by substantial evidence. Accordingly, we remand the case to the circuit court for entry of judgment in favor of the defendant. I

The appellant, Marcia Payne, worked for the City of Muskegon in several clerical and administrative positions. In December, 1988, she transferred to the position of administrative secretary for the city's personnel director, Truman Forest, at the request of Mr. Forest.

The personnel department records information about city employees and their status in four cross-referenced files, each having a different purpose: the employee's personnel file; a quick-reference index consisting of a 3 by 5 card for each employee [444 Mich. 684] that does not contain all the information from the personnel file; the "brown book," organizing collective personnel actions taken by date; and the "grey book," containing special lists, such as department lists and equal opportunity lists. For example, the brown book would be consulted to respond to an inquiry regarding the number of employees who would be on vacation on a certain day, and the quick-reference index would be used to learn an employee's telephone number. In February, 1989, Forest gave Payne a document confirming that each new hiring or status change must be recorded in all four indexes.

On Friday, June 3, 1989, Forest returned to the office to discover several things amiss: promotional announcements that should have been posted on the bulletin board were not, a number of completed employment applications remained on Payne's desk rather than being locked away to protect their confidentiality, and a number of items from the April and May Muskegon Civil Service Commission meetings had not been filed and recorded. In an effort to correct these problems, Forest wrote the plaintiff a letter of reprimand detailing the assignments she had not completed, including the specific items from the minutes of the April and May commission meetings that had not been recorded. The letter cited the plaintiff for violating Rule X, § 3(i) of the Muskegon Civil Service Rules, and instructed her to schedule her work so that she could record the information from the minutes within seventy-two hours of each meeting.

Approximately a week later, under the assumption that the plaintiff had completed the assignments detailed in the June 5 letter, Forest decided that she had passed her probation period. In an addendum to her performance evaluation, he wrote that although Payne had been "quick to [444 Mich. 685] grasp the overall 'flow' of the operation," and thus received satisfactory marks in most categories, her performance was lacking in two areas: proofreading and filing. Regarding the latter, Forest explained that "[p]roperly securing the records of the Civil Service department is our single most important task. The employees of the city must have confidence in our system and believe that our records are accurate and secure. You must commit yourself to doing this less-than-glamorous task in a timely and accurate manner."

Upon returning from vacation on July 10, Forest discovered several employment applications on Payne's desk. This discovery prompted him to check whether the plaintiff had completed filing the items listed in the June 5 warning letter. She had not. In addition, the plaintiff had not yet recorded many items from the June 26 meeting.

Payne returned from her own vacation on July 17, and told Forest that part-time employee Larry Townsend, not herself, was responsible for leaving the applications unsecured. After considering the entire situation, Forest decided to terminate the plaintiff's employment.

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Payne appealed to the Muskegon Civil Service Commission. At the hearing, plaintiff submitted that termination was too harsh a penalty, but admitted that, as of July 17, she still had not performed some of the work she was warned about failing to complete in the June 5 letter. Specifically, plaintiff acknowledged that she had failed to enter items from April and May in the record reflecting collective personnel action by date and had not entered items from the June meeting in either that record or the employee quick reference index. The rules of the Muskegon Civil Service Commission provide that failure to perform work after being warned is a "Group 3 Offense," which [444 Mich. 686] is grounds for immediate discharge. ² The commission denied the plaintiff's appeal.

The plaintiff then petitioned the Muskegon Circuit Court for an order of superintending control. The circuit court reviewed the record of the hearing for competent, material, and substantial evidence, and ruled that there was insufficient evidence to support the plaintiff's termination. The court set aside the plaintiff's discharge and remanded the case to the commission to impose a less severe penalty.

The city appealed, arguing among other things that the circuit court applied the wrong standard of review. The Court of Appeals agreed and reversed in a per curiam opinion, holding that the proper standard was "any competent evidence to support the findings made below." 193 Mich.App. 620, 623, 484 N.W.2d 759 (1992). The Court remanded the case, instructing the circuit court not to substitute its judgment for the civil service commissioners' "[i]f there is any competent evidence on the record that the plaintiff, after a warning, failed to perform her work completely...." Id. We granted leave. 442 Mich. 925, 503 N.W.2d 901 (1993).

444 Mich. 687] II

Decisions of municipal civil service commissions are reviewed through original actions for superintending control. See, e.g., Beer v. Fraser Civil Service Comm., 127 Mich.App. 239, 243, 338 N.W.2d 197 (1983); Rinaldi v. Livonia, 69 Mich.App. 58, 69, 244 N.W.2d 609 (1976). Superintending control is available only where the party seeking the order does not have another adequate remedy. MCR 3.302(B). An appeal would be an adequate remedy, and a complaint for superintending control must be dismissed when one is available. MCR 3.302(D)(2). Because the Legislature has not provided for appeal from municipal civil service boards, Robertson v. Detroit, 131 Mich.App. 594, 597, 345 N.W.2d 695 (1983), review is by complaint for superintending control.

A

The standard for issuing an order of superintending control depends on the type of suit involved. Superintending control replaced the common-law extraordinary writs--"the writs of certiorari and prohibition and the writ of mandamus when directed to a lower court or tribunal." ³ MCR 3.302(C). See also Const.1963, art. 6, § 13 ("The circuit court shall have ... power to issue, hear and determine prerogative and remedial writs"). These writs were issued in different circumstances [444 Mich. 688] and according to

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different standards. ⁴ We agree with the plaintiff that the common-law standard of review of the factual findings of municipal civil service agencies is the substantial evidence test.

Prior to the creation of superintending control, Michigan courts reviewed the decisions of municipal civil service boards through certiorari. See Detroit Public Welfare Comm. v. Detroit Civil Service Comm., 289 Mich. 101, 106-107, 286 N.W. 173 (1939); Schubert v. Dearborn Civil Service Bd., 311 Mich. 553, 561, 19 N.W.2d 96 (1945); O'Dell v. Flint Civil Service Comm., 328 Mich. 631, 636-637, 44 N.W.2d 157 (1950). Certiorari was the common-law method of correcting errors of administrative agencies. See, generally, Town of Reading v. Attorney General, 362 Mass. 266, 285 N.E.2d 429 (1972); Rhodes v. Woodstock, 132 Vt. 323, 318 A.2d 170 (1974); Park Hosp. Dist. v. Larimer Cty. Dist. Court, 192 Colo. 69, 555 P.2d 984 (1976).

The writs were issued less frequently in criminal cases than in civil cases. "A jurisdiction may ordinarily treat the writs as flexible devices allowing review of a wide range of nonappealable orders, but sharply restrict that flexibility in the context of criminal cases." 3 LaFave & Israel, Criminal Procedure, § 26.4(c), p. 228. This principle is reflected in In re People v. Burton, 429 Mich. 133, 139, 413 N.W.2d 413 (1987), and Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 194 N.W.2d 693 (1972). The trial court in Burton had granted the defendant a new trial. The prosecutor sought interlocutory review by asking the Court of Appeals[444 Mich. 689] to issue a writ of certiorari. This Court, in determining whether to intervene, instead applied the standard traditionally associated with mandamus: ⁵ the writ should be issued only " 'if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law.' " 429 Mich. at 139, 413 N.W.2d 413.

Unification of the writs under superintending control did not change the scope of review. ⁶ Drouillard v. Roseville, 9 Mich.App. 239, 243, 156 N.W.2d 628 (1967); Scallen v. State Health Comm'r, 376 Mich. 64, 71, 135 N.W.2d 426 (1965) (Souris, J...