Radke v. Nelson Mill Co.

• Decision Date: 23 November 1971
• Docket Number: Docket No. 10458,No. 2,2
• Citation: 37 Mich.App. 104,194 N.W.2d 395
• Parties: Herman RADKE, Plaintiff-Appellee, v. NELSON MILL COMPANY, Defendant, and Michigan Employment Security Commission, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 395

194 N.W.2d 395

37 Mich.App. 104

Herman RADKE, Plaintiff-Appellee, v. NELSON MILL COMPANY, Defendant and Michigan Employment Security Commission, Defendant-Appellant.

Docket No. 10458.

Court of Appeals of Michigan, Division No. 2.

Nov. 23, 1971.

Released for Publication Feb. 25, 1972.

Rehearing Denied March 10, 1972.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Felix E. League, Asst. Atty. Gen., for defendant-appellant.

C. Robert Beltz, Flint, for plaintiff-appellee.

Before QUINN, P.J., and DANHOF and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

Plaintiff Herman Radke was laid off as a laborer for Nelson Mill Company on April 30, 1968. His job foreman had informed him around noon of the impending layoff, since there was no work remaining for him to do. Plaintiff was laid off about one-half hour before his usual quitting time. On the next day, May 1, 1968, the carpenter's union went on strike, remaining on strike until Wednesday, August 7, 1968. One week after the carpenters' dispute was settled, plaintiff was rehired by his employer Nelson Mill Company. Plaintiff was not a member of any striking union, received no unemployment compensation, and has not benefited in any way by the carpenters' strike and settlement.

Plaintiff filed an application for unemployment benefits with defendant-appellant Michigan Employment Security Commission (MESC) which returned a determination dated May 15, 1968, denying the benefits on the ground that plaintiff's unemployment was caused by a labor dispute in active progress. An August 19, 1968 redetermination was returned with the same result. Plaintiff appealed, seeking a referee's decision, but at the scheduled hearing neither the employer nor its representative appeared. The referee heard testimony nevertheless, and issued a May 7, 1969 decision reversing the MESC's redetermination and awarding unemployment benefits to plaintiff.

Nelson Mill Company sent a letter appealing the referee's decision to the Michigan Employment Security Commission Appeal Board but, again, the employer or a suitable representative failed to appear at the scheduled hearing. Plaintiff and his attorney appeared at the hearing and further filed an unopposed brief for the consideration of the Appeal Board. Nonetheless, the Appeal Board remanded the matter to the referee in order to hear testimony as to the employer's reasons for laying off plaintiff.

On February 5, 1970, plaintiff appealed to the Genesee Circuit Court seeking reversal of the Appeal Board's remand order. Defendant-appellant MESC moved to dismiss the appeal on the ground that the Appeal Board's remand order was not a 'final order' and thus not appealable. M.C.L.A. § 421.38; M.S.A. § 17.540. The circuit court judgment of October 8, 1970, found the Appeal Board's remand order to be a reviewable 'final order,' reversed said order, and affirmed the referee's decision awarding plaintiff the benefits he sought. MESC appeals therefrom.

As in the circuit court, defendant-appellant alleges that the circuit court lacked jurisdiction to entertain plaintiff's appeal from a remand order of the MESC Appeal Board. Defendant-appellant contends that under M.C.L.A. § 421.38; M.S.A. § 17.540, an appeal may be entertained by the circuit court only from a 'final order or decision of said appeal board,' and that the remand order was not a 'final order or decision' but an order of an interlocutory nature and, thus, not appealable.

Upon inspection, we find that the Genesee County Circuit Court could not properly entertain an appeal pursuant to M.C.L.A. § 421.38; M.S.A. § 17.540. But, even if the Appeal Board's remand order is not a final order appealable under statute, if appropriate, we may view an appeal to circuit court as an application for an order of superintending control.

In Parshay v. Warden of Marquette Prison, 30 Mich.App. 556, 186 N.W.2d 859 (1971), it appears that this Court may consider a complaint mislabeled as an 'appeal' to see whether it meets the requirements established pursuant to some other court rule. Thus, if the scope of superintending control fairly includes plaintiff's case, the circuit court's jurisdiction may be affirmed even if the Appeal Board's remand order is not a final order.

Superintending control is an extraordinary power, unencumbered by usual procedural limitations. Const.1963, art. 6, § 13, grants to the circuit courts, 'supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with the rules of the supreme court.' This constitutional power of superintending control is confined by the following statute:

'The circuit courts have a general superintending control over all inferior courts and tribunals, subject to the rules of the supreme court.' M.C.L.A. § 600.615; M.S.A. § 27A.615.

Further, court rule regulates the procedures by which such power is to be exercised:

'An order of superintending control may be used in any fashion necessary to implement the superintending or supervisory control power of the court over inferior tribunals.' GCR 1963, 711.1.

In addition, because the MESC Appeal Board is subject to judicial review, M.C.L.A. § 421.38; M.S.A. § 17.540, it must be considered an 'inferior tribunal' and therefore subject to the superintending control of the courts. In 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p. 43, there is a discussion of GCR 1963, 711 by the authors with reference to special statutes providing for appeal to circuit court as being nonexclusive regarding the right of superintending control over those same tribunals. The commentary follows:

'In addition to these general provisions, consideration must be given to numerous special statutes affecting judicial review of administrative tribunals, since the power of supervision is not limited to control of lower courts, but extends to all inferior tribunals. Special statutes which make particular administrative action subject to judicial review are important as establishing that the agencies, for that purpose, are acting as 'inferior tribunals'. As such, they become subject to the superintending control of the courts, and may be supervised by an order of superintending control in appropriate circumstances, when another plain, speedy and adequate remedy is unavailable. Sub-rules 711.1, 711.2.'

As previously mentioned, the power of superintending control is an extraordinary power. As stated by Carl S. Hawkins in the Practice Commentary subsequent to M.C.L.A. § 600.615, p. 315, 'it (superintending control) encompasses the power to investigate an act or omission of the inferior court or tribunal, and to issue whatever remedial order may be necessary to achieve justice in the particular case or to implement policies of sound judicial administration.'

However, the order of superintending control does not supercede the use of normal appellate procedure, when an appeal would be available and adequate for that purpose. It is stated by court rule:

'The order of superintending control should not be issued if another plain, speedy and adequate remedy is available to the party seeking the order.' GCR 1963, 711.2.

Unfortunately, though an appeal is the normal and statutorily recognized procedure for circuit court review, it would not be a 'speedy and adequate remedy' in the situation presented here. On an appeal under GCR 1963, 706.2, M.C.L.A. § 421.38; M.S.A. § 17.540, dictates that 'the circuit court * * * shall have power to review questions of fact and law on the record made before the referee and the appeal board involved in any such Final order or Decision of said appeal board, and to make such further orders in respect thereto as justice may require.' (Emphasis added.) Adhering to defendant-appellant's contention, we find that there is no 'such final order or decision' of the Appeal Board. Therefore, due to the exigencies which call for its exercise, if applicable, superintending control is the only 'speedy and adequate remedy' available to effectuate justice here.

However, does the instant case present an appropriate situation for the utilization of superintending control? In light of GCR 1963, 711.1, we look to the Committee Comment:

"The question therefore arises: What is the proper instrument by which to exercise this power? The only answer is that it must be framed when the case properly arises, and, for want of a better name, may be denominated a supervisory writ. It must be suitable, not only to examine into questions of jurisdiction, but it must also extend to the review of errors of law and abuses of discretion within the limits of jurisdiction. * * * The supervisory writ, being broader in its scope, would afford relief by restraining the inferior court to the bounds of jurisdiction, or compelling a performance of duty, as well as by a correction of errors and abuses of discretion requiring prompt action. * * *' Brantly, C.J., in State ex rel. Whiteside v. (First Judicial) District Court, 24 Mont. 539, 565, 63 P. 395, 401 (1900).' 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp. 41--42.

Turning to the facts, we can appreciate the necessity that required that plaintiff be exposed to a 'speedy and adequate remedy.' After plaintiff unsuccessfully filed an application for unemployment...