Payne, In re

• Decision Date: 07 April 1992
• Docket Number: Docket No. 132854
• Citation: 484 N.W.2d 759,193 Mich.App. 620
• Parties: In re Marcia PAYNE. Marcia PAYNE, Plaintiff-Appellee, v. CITY OF MUSKEGON BOARD OF CIVIL SERVICE COMMISSIONERS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 759

484 N.W.2d 759

193 Mich.App. 620

In re Marcia PAYNE.

Marcia PAYNE, Plaintiff-Appellee, v. CITY OF MUSKEGON BOARD OF CIVIL SERVICE COMMISSIONERS,

Defendant-Appellant.

Docket No. 132854.

Court of Appeals of Michigan.

Submitted March 11, 1992, at Grand Rapids.

Decided April 7, 1992, at 9:45 a.m.

Released for Publication June 22, 1992.

Pinsky, Smith, Fayette & Hulswit by H. Rhett Pinsky, Grand Rapids, for plaintiff-appellee.

O'Toole, Johnson, Potter, Rolf, Grafton & Eklund by John C. Schrier, Muskegon, for defendant-appellant.

Before FITZGERALD, P.J., and HOOD and MARK J. CAVANAGH, JJ.

PER CURIAM.

Defendant, the City of Muskegon Board of Civil Service Commissioners, appeals from the circuit court's order of superintending control directing it to set aside plaintiff's discharge and to determine an appropriate sanction less than discharge. Defendant contends inter alia that the circuit court used an improper standard when reviewing the board's decision to affirm plaintiff's firing. We agree.

In exercising superintending control over an inferior tribunal, a reviewing court is invoking an extraordinary power. In re Huff, 352 Mich. 402, 91 N.W.2d 613 (1958). An order of superintending control, which is comparable to a writ of certiorari, traditionally has been used only to determine if the inferior tribunal, upon the record made, had jurisdiction, whether it exceeded that jurisdiction, and whether it proceeded according to law. Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 681, 194 N.W.2d 693 (1972).

The process of seeking an order of superintending control is not an appeal. It is an original civil action designed to require the defendant to perform a clear legal duty. Beer v. Fraser Civil Service Comm., 127 Mich.App. 239, 242, 338 N.W.2d 197 (1983). The review in such a case is limited only to questions of law. In re People v. Burton, 429 Mich. 133, 139, 413 N.W.2d 413 (1987). A reviewing court cannot substitute its judgment of the facts if there is any competent testimony in the record to support the findings made below. Bay Trust Co. v. Dow Chemical Co., 326 Mich. 62, 65, 39 N.W.2d 244 (1949).

In this case, plaintiff relies on Viculin v. Dep't of Civil Service, 386 Mich. 375, 192 N.W.2d 449 (1971), and Farmers State Bank v. Dep't of Commerce, 77 Mich.App. 313, 323, 258 N.W.2d 496 (1977), to argue that the decision made by the board must be reviewed to determine whether it was supported by competent, material, and substantial evidence. In our opinion, plaintiff's reliance on Viculin and Farmers State Bank is misplaced for a number of reasons.

First, we believe that the opinions in Viculin and Farmers State Bank discussed the proper standard to be applied in reviewing an administrative tribunal decision while on appeal, not the standard applicable to an original action for superintending control. Consequently, plaintiff has offered this Court no authority in support of her position and this issue could be considered abandoned on appeal. See Cramer v. Metropolitan Savings Ass'n, 136 Mich.App. 387, 357 N.W.2d 51 (1984).

Second, appeals...