Saginaw Valley Trotting Ass'n, Inc. v. Michigan Racing Com'r, Docket No. 77-4086

• Decision Date: 06 July 1978
• Docket Number: Docket No. 77-4086
• Citation: 84 Mich.App. 564,269 N.W.2d 676
• Parties: SAGINAW VALLEY TROTTING ASSOCIATION, INC., a Michigan Corporation, and Saginaw County Agricultural Society, a Michigan non-profit Corporation, Plaintiff, v. MICHIGAN RACING COMMISSIONER, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 676

269 N.W.2d 676

84 Mich.App. 564

SAGINAW VALLEY TROTTING ASSOCIATION, INC., a Michigan Corporation, and Saginaw County Agricultural Society, a Michigan non-profit Corporation, Plaintiff, v. MICHIGAN RACING COMMISSIONER, Defendant.

Docket No. 77-4086.

Court of Appeals of Michigan.

July 6, 1978.

Released for Publication Sept. 18, 1978.

Borrello, Geyer & Scorsone by Leopold P. Borrello, Saginaw, for plaintiff.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George M. Elworth, Asst. Atty. Gen., for defendant.

Before BEASLEY, P. J., and ALLEN and DEMING, ^* JJ.

ALLEN, Judge.

Plaintiffs ask this Court to issue an order of mandamus requiring racing commissioner, Fedele F. Fauri, to issue a license to operate a harness race track at the Saginaw County Fairgrounds.

Plaintiff Saginaw County Agricultural Society is a quasi-public body owning the Saginaw County Fairgrounds. Plaintiff Saginaw Valley Trotting Association, Inc., is a non-profit corporation incorporated in 1977, for the purpose, Inter alia, of conducting harness racing with pari-mutuel betting. On August 11, 1977, plaintiffs entered into a 10-year renewable lease to conduct harness racing and, on August 23, 1977, the trotting association applied to the racing commissioner for a track license pursuant to § 8 of the Racing Law, and for race meeting dates from May 22 through July 29, 1978, pursuant to § 9 of the racing law. ¹ On September 15, 1977, the commissioner requested additional information and documentation which was promptly submitted by the trotting association. In a ruling dated October 13, 1977, the commissioner denied the application for a track license. The principal reason for denial was that, even if a track license were granted, racing dates could not be given because competition from existing tracks and the unavailability of racing stock made the grant of new racing dates inconsistent with the commissioner's duty under regulations to provide opportunity for the sport to properly develop. 1964-1965 AACS R 431.67 (Rule 339). ² Plaintiffs then filed this complaint for mandamus and, in addition, moved that the defendant be ordered to show cause why mandamus should not be entered against him. By order dated November 18, 1977, this Court granted the order to show cause and further ordered that the parties submit briefs on issue I, Infra, in addition to the merits.

I. Is a Complaint for Mandamus in the Court of Appeals an Appropriate Remedy in View of the Fact That MCL 431.38; MSA 18.966(8) Provides for a circuit court appeal from a refusal to Grant a Track License and That MCL 600.4401; MSA 27A.4401 Now Provides for Mandamus Against a State Officer in Circuit Court?

In his brief submitted in response to this Court's directive to brief the above question, the attorney general argues that the amendment to the Revised Judicature Act governing mandamus, M.C.L. § 600.4401; M.S.A. § 27A.4401, ³ now gives a party feeling aggrieved by denial of a license an adequate remedy in the circuit court and, this being so, mandamus in the instant case must be had in the circuit court. In response, plaintiffs argue that the very same amendment contains language explicitly providing that the choice of bringing mandamus in the Court of Appeals or the circuit court is "at the option of the party commencing the action".

In deciding which of the two points of view on this question of first impression should prevail, it is helpful to distinguish between (1) the right to seek mandamus in either the court of appeals or circuit court and (2) the discretionary right of the court in which mandamus is sought, to issue mandamus. It has always been the law that mandamus will not issue if another adequate remedy is available. Constantine v. Liquor Control Comm., 374 Mich. 259, 132 N.W.2d 146 (1965); Hazel Park Racing Ass'n, Inc. v. Racing Comm'r, 336 Mich. 508, 518, 58 N.W.2d 241 (1953). Prior to the amendment, Supra, it was the circuit court's inability to order issuance of the denied license which made relief in the circuit court inadequate. Schweitzer v. Board of Forensic Polygraph Examiners, 77 Mich.App. 749, 753, 259 N.W.2d 362 (1977). Review in the circuit court was in the nature of Certiorari, and Certiorari permitted only affirmation, reversal or quashing of the proceedings reviewed. The court was without power to make an affirmative order. Constantine v. Liquor Control Comm., supra; Kelly Downs, Inc. v. Racing Comm., 60 Mich.App. 539, 549, 231 N.W.2d 443 (1975). Where a state officer was defendant, as is the case here, the circuit court was also restricted by the rule forbidding a circuit court to issue mandamus against a state officer under any guise. Minarik v. State Highway Comm'r, 336 Mich. 209, 213, 57 N.W.2d 501 (1953); Lord v. Genesee Circuit Judge, 51 Mich.App. 10, 16, 214 N.W.2d 321 (1973). But this bar was removed, effective January 1, 1977, by the amendment to § 4401 and, today, circuit courts have mandamus jurisdiction over state officers.

In our opinion, a party feeling aggrieved by denial of a racing license now has an adequate remedy in circuit court. Section 4401 as amended allows the circuit court to issue mandamus against state officers. Section 8(4) of the racing act explicitly provides that the racing commissioner's decision in refusing or revoking a track license may be reviewed by the circuit court of the county in which the track is located. M.C.L. § 431.38(4); M.S.A. § 18.966(8)(4). Section 4401 and § 8(4) combined, clearly give the party denied a racing license an adequate remedy. The remedy exists because, upon denial of the license, the party may appeal under § 8(4) to circuit court which, upon review in the nature of Certiorari now under § 4401 may issue mandamus. ⁴ We therefore conclude that in the case before us the Court of Appeals may decline to issue mandamus even though the Court has concurrent mandamus jurisdiction with circuit courts and even though plaintiff has a choice of forum under RJA § 4401.

Our conclusion admittedly changes the heretofore existing rules governing review of a denial of a racing license. But we believe it is supported on both sound legal and policy grounds. As we noted earlier, it has always been the law that this court would deny mandamus where an adequate remedy existed elsewhere. The Legislature amended the statute to give circuit courts mandamus jurisdiction over state officers but did not amend the existing rule allowing a court to decline to issue the writ where another adequate remedy is available. On policy grounds, our conclusion is supported by the Supreme Court in People v. Flint Municipal Judge, 383 Mich. 429, 432, 175 N.W.2d 750, 752 (1970), where the court said:

"Reasons of policy dictate that such complaints (for superintending control) be directed to the first tribunal within the structure of Michigan's one court of justice, having competence to hear and act upon them."

Our decision is also in conformity with the policy announced by the high Court in Superx Drugs Corp. v. State Board of Pharmacy (On Rehearing), 375 Mich. 314, 320, 134 N.W.2d 678, 681 (1975):

"The policy of this Court is to adhere in all but extremely rare instances to the method of review of the decisions of administrative agencies which is provided by specific statutes"

Finally, our holding is consistent with the policy expressed in GCR 1963, 801.2:

"Where any administrative action is subject to review concurrently by direct appeal to the Supreme Court or the Court of Appeals (or by any writ or remedy for which appeal is a substitute) and by suit, action or proceedings authorized by law in the circuit court for the same or similar ultimate relief, the circuit court shall have the duty to proceed in any such suit, action or proceeding brought in said court as if the same were the sole method of review, unless otherwise ordered by the Court of Appeals or the Supreme Court."

Though we conclude that review of a denial of a license by the racing commissioner should be by appeal, coupled with mandamus, in the circuit court, we acknowledge that application of the rule to plaintiffs in the present case would be unfair. The issue presented is of first impression and was raised by this Court. Plaintiffs did follow the standard procedure for mandamus as it existed up to this time. Therefore, we limit our decision in this case to complaints for mandamus filed in this Court after the date of this opinion, and will not deny plaintiffs access to the remedy they invoked on grounds that they brought their action in the wrong court. Furthermore, we limit our opinion to complaints for mandamus brought under the racing act. We do not hold that all mandamus actions against state officers must start in circuit court but we leave this issue for future decision on a case by case basis. ⁵

II. Was the Racing Commissioner's Denial of the Application for a Race Track License Arbitrary, Capricious and Unreasonable?

In reviewing the denial of an application for a horse track license, the standard of review is whether the commissioner's denial was for good and reasonable cause or whether the rejection was arbitrary, capricious and unreasonable. Mount Clemens Harness Ass'n v. Racing Comm'r, 360 Mich. 467, 474, 104 N.W.2d 363 (1960); Kelly Downs, Inc. v. Racing Comm'r, supra, 60 Mich.App. 550, 231 N.W.2d 443. The claim that the commissioner's denial in the case before us was arbitrary, capricious and unreasonable is posited on two grounds: First, that denial of a track license may not be based on reasons for denial of a racing date license; Second, that the commissioner grievously erred in concluding there would be an insufficiency of racing stock. The first ground of error presents a question of law. The second involves a question of fact.

We do not read Kelly Downs, supra, as holding that in denying a track license the commissioner may not take into consideration reasons appearing outside of the application...