Petrus v. Dickinson County Bd. of Com'rs

• Decision Date: 27 August 1990
• Docket Number: Docket No. 113868
• Citation: 184 Mich.App. 282,457 N.W.2d 359
• Parties: George E. PETRUS, Anne K. Petrus, Katie Yax, Andrew Vespa, James P. Fontecchio, John Gagnon, V. Kellerman, Eleanor Sovey, and Roy C. Sovey, Plaintiffs-Appellants, v. DICKINSON COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee, and Ingham Medical Center, Amicus Curiae. 184 Mich.App. 282, 457 N.W.2d 359
• Court: Court of Appeal of Michigan — District of US

Page 359

457 N.W.2d 359

George E. PETRUS, Anne K. Petrus, Katie Yax, Andrew Vespa James P. Fontecchio, John Gagnon, V. Kellerman Eleanor Sovey, and Roy C. Sovey Plaintiffs-Appellants, v. DICKINSON COUNTY BOARD OF COMMISSIONERS Defendant-Appellee, and Ingham Medical Center, Amicus Curiae.

Docket No. 113868.

184 Mich.App. 282, 457 N.W.2d 359

Court of Appeals of Michigan.

Submitted May 14, 1990.

Decided June 18, 1990.

Released for Publication July 16, 1990.

Leave to Appeal Denied Aug. 27, 1990.

[184 MICHAPP 286] Bauckham, Reed, Sparks, Rolfe & Thomsen, P.C. by John H. Bauckham and Carol J. Hustoles, Kalamazoo, for plaintiffs-appellants.

Michael J. Kusz, Dickinson County Pros. Atty., Iron Mountain, for Dickinson County Bd. of Com'rs.

Fraser, Trebilcock, Davis & Foster, P.C. by Robert W. Stocker, II, Paula R. Latovick and Kathleen E. Kane, Lansing, for amicus curiae Ingham Medical Center.

Before CYNAR, P.J., and WEAVER and GRIFFIN, JJ.

GRIFFIN, Judge.

Plaintiffs appeal as of right from a lower court order and opinion upholding the constitutionality of the Municipal Health Facilities Corporations Act, 1987 P.A. 230, M.C.L. Sec. 331.1101 et seq.; M.S.A. Sec. 14.1148(101) et seq. We affirm.

I

Plaintiffs are taxpayers of Dickinson County. Their June 6, 1988, complaint for declaratory judgment alleged, inter alia, that defendant, the Dickinson County Board of Commissioners, contemplated a reorganization of Dickinson County Memorial Hospital, pursuant to M.C.L. Sec. 331.1203; M.S.A. Sec. 14.1148(203), Sec. 203 of 1987 P.A. 230, from a public tax-supported hospital to a nonprofit hospital[184 MICHAPP 287] corporation. ¹ 1] Plaintiffs alleged that 1987 P.A. 230 (hereinafter referred to as Act 230) is unconstitutional and that they would suffer harm as taxpayers if reorganization were implemented. Plaintiffs argued that the anticipated transfer would deprive them of an accounting of public monies and that they would lose their vested interest in their hospital.

Plaintiffs requested a judgment declaring Act 230 to be unconstitutional and enjoining the board from performing acts or transfers under Act 230. Dickinson Circuit Judge Francis D. Brouillette in a comprehensive and well-reasoned opinion held that Act 230 does not violate either the Michigan Constitution or the United States Constitution.

II

[184 MICHAPP 288] On appeal, plaintiffs raise eight issues, none of which have merit. First, plaintiffs argue that the trial court erred in its "construction of applicable constitutional provisions," in that its opinion fails to take into account the "unique nature of the Dickinson County Public Hospital."

It is difficult to glean a reviewable issue from plaintiffs' first argument on appeal. Plaintiffs apparently assert the following in this portion of their brief: (1) the trial court failed to read Act 230 in conjunction with 1913 P.A. 350 (hereinafter referred to as Act 350) to the effect that, because Dickinson County Hospital was formed by a vote of the electorate, a vote of the electorate should be necessary in order to dissolve the hospital; (2) Act 350 created contractual rights between the state and the county residents which cannot be impaired by Act 230; and (3) the lower court has misconstrued the provisions of Act 230 as requiring the county to take affirmative acts to incorporate, when the act provides just the opposite, i.e., that the county must take affirmative steps each year not to incorporate.

These arguments were not raised before the trial court and therefore are not properly before us on appeal. Bajis v. City of Dearborn, 151 Mich.App. 533, 536, 391 N.W.2d 401 (1986), lv. den. 426 Mich. 874 (1986). However, we may grant review if failure to consider the issue would result in a miscarriage of justice. American Way Service Corp. v. Comm'r of Ins., 113 Mich.App. 423, 317 N.W.2d 870 (1982).

No miscarriage of justice will result from our failure to address these questionable arguments. Act 230 permits the hospital to remain as it was created under Act 350 and takes away none of the [184 MICHAPP 289] "rights" claimed if plaintiffs' elected representatives on the county board of commissioners act to exempt their hospital from the provisions of Act 230, pursuant to M.C.L. Sec. 331.1203(1); M.S.A. Sec. 14.1148(203)(1). Thus, no changes will take effect if plaintiffs' elected officials act to exempt the hospital from the provisions of Act 230. Plaintiffs possess adequate remedies which lie with the legislative branch of government.

III

For their second issue on appeal, plaintiffs argue that Act 230 violates the constitutional guarantees regarding equal protection and due process of law. We disagree.

A

Plaintiffs assert that Act 230 violates equal protection principles because counties with populations of less than 100,000, which do not already have a county hospital, may vote to establish and incorporate a county hospital under Act 230, yet residents of counties which already have a public hospital are denied the same right to vote on the issue of incorporation.

Absent a fundamental right or suspect classification, a legislative classification does not violate equal protection guarantees if it has a rational basis. U.S. Const., Am. XIV; Const. 1963, art. 1, Sec. 2; Sutton v. Cadillac Area Public Schools, 117 Mich.App. 38, 43, 323 N.W.2d 582 (1982). The equal protection guarantees require that persons under similar circumstances be treated alike. El Souri v. Dep't of Social Services, 429 Mich. 203, 207, 414 N.W.2d 679 (1987). Equal protection does not require that persons under different circumstances [184 MICHAPP 290] be treated the same. Weeks v. Bd. of Trustees, City of Detroit General Retirement System, 160 Mich.App. 81, 86-87, 408 N.W.2d 109 (1987), lv. den. 429 Mich. 870 (1987).

Plaintiffs' claim of an equal protection violation by Act 230 is without merit. Section 201 of Act 230 provides:

Any county board of commissioners of a county not having a county public hospital on the effective date of this act may incorporate 1 or more corporations under this act. Except as provided in sections 203 and 204, and except in counties having a population of 100,000 or more as determined by the most recent published federal decennial census, the question of establishing a corporation shall be presented to the county electors at a special or regular county election prior to incorporation. The election proceedings under this section shall be conducted in accordance with the Michigan election law, Act No. 116 of the Public Acts of 1954, being sections 168.1 to 168.992 of the Michigan Compiled Laws [M.S.A. Secs. 6.1001-6.1992]. [M.C.L. Sec. 331.1201; M.S.A. Sec. 14.1148(201).]

Plaintiffs argue that this provision treats their county ² in a manner different than similar counties with less than 100,000 residents which do not have an established hospital, in that the latter may vote to incorporate a private nonprofit hospital, whereas the former's existing county public hospital is automatically converted under Sec. 203 of the act unless affirmative actions are taken by the county's board of commissioners.

However, Sec. 201 clearly applies only to counties which do not have an existing county public hospital. All counties which have an existing county hospital organized under Act 350 are treated in [184 MICHAPP 291] the same manner regardless of population. Section 203 provides in pertinent part:

Upon the expiration of 90 days after the effective date of this act, a county public hospital organized and existing under Act No. 350 of the Public Acts of 1913, being sections 331.151 to 331.169 of the Michigan Compiled Laws [M.S.A. Secs. 14.1131-14.1148], or Act No. 109 of the Public Acts of 1945, being sections 331.201 to 331.213 of the Michigan Compiled Laws [M.S.A. Secs. 14.1150(1)-14.1150(13) ], on the effective date of this act shall be considered to be a corporation incorporated and existing under this act without the adoption or filing of articles of incorporation, without a vote of county electors, and without diminishing the terms of office of persons serving as trustees on the effective date of this act. A county public hospital shall not be considered to be a corporation incorporated and existing under this act upon the expiration of the 90-day period if, within the 90-day period, the county board of commissioners of the county in which the county public hospital is located passes a resolution prohibiting incorporation of the county public hospital under this act. Any such resolution shall be effective for not longer than 12 months after the date of passage. Before the expiration of the 12-month period, and annually thereafter, the county board of commissioners may pass a succeeding resolution prohibiting the incorporation of the county public hospital under this act. If the county board of commissioners fails to pass a succeeding resolution before the expiration of a 12-month period, the county public hospital automatically shall be incorporated under this act. The county board of commissioners of the county may at any time after the effective date of this act adopt articles of incorporation for the corporation in accordance with section 206. Until such time as any such articles of incorporation are effective, the provisions of this act shall be considered to constitute the articles of incorporation of the corporation. Unless and until articles of incorporation[184 MICHAPP 292] providing different numbers of trustees or terms of office are effective, corporations governed by Act No. 350 of the Public Acts of 1913 on the effective date of this act shall have a board of 9 trustees serving 6-year terms, and corporations governed by Act No. 109 of the Public Acts of 1945 on the effective date of this act shall have a board of 5 trustees serving 3-year terms. [M.C.L. Sec. 331.1203(1); M.S.A. Sec. 14.1148(203)(1) ].

Thus, all persons situated similarly to plaintiffs are treated alike. Counties...