Schweitzer v. Michigan State Bd. of Forensic Polygraph Examiners

• Decision Date: 06 September 1977
• Docket Number: 25880,Docket Nos. 25879
• Parties: Samuel SCHWEITZER, Plaintiff-Appellee, v. MICHIGAN STATE BOARD OF FORENSIC POLYGRAPH EXAMINERS, Defendant-Appellant. Robert H. FEIST, Plaintiff-Appellee, v. MICHIGAN STATE BOARD OF FORENSIC POLYGRAPH EXAMINERS, Defendant-Appellant. 77 Mich.App. 749, 259 N.W.2d 362
• Court: Court of Appeal of Michigan — District of US

Page 362

259 N.W.2d 362

Samuel SCHWEITZER, Plaintiff-Appellee, v. MICHIGAN STATE BOARD OF FORENSIC POLYGRAPH EXAMINERS,

Defendant-Appellant.

Robert H. FEIST, Plaintiff-Appellee, v. MICHIGAN STATE BOARD OF FORENSIC POLYGRAPH EXAMINERS,

Defendant-Appellant.

Docket Nos. 25879, 25880.

77 Mich.App. 749, 259 N.W.2d 362

Court of Appeals of Michigan.

Sept. 6, 1977.

Released for Publication Nov. 14, 1977.

[77 MICHAPP 751] Robert M. Justin, Rochester, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., A. Michael Leffler, Asst. Atty. Gen., for defendant-appellant.

Before DANHOF, C. J., and T. M. BURNS and KEYES, ^* JJ.

T. M. BURNS, Judge.

These cases involve original complaints for mandamus, GCR 1963, 714, to compel the Michigan State Board of Forensic Polygraph Examiners to issue plaintiffs Schweitzer and Feist polygraph examiners licenses under the grandfather clause contained in § 9 of the Forensic Polygraph Examiners Act, 1972 P.A. 295; M.C.L.A. § 338.1701 et seq.; M.S.A. § 18.186(1) et seq. Both plaintiffs applied for licenses under § 9 of the act, M.C.L.A. § 338.1709; M.S.A. § 18.186(9), and eventually the Board denied both applications.

Plaintiffs' applications were timely filed under § 9. ¹ Neither applicant received immediate action on his application. The Board in each case corresponded through form letters indicating that action on the application was being "deferred". Plaintiffs continued to correspond with the Board until July of 1975. ²

After submitting to a personal interview on July 9, 1975, plaintiffs waited for a final determination on their applications. When no decision was forthcoming from the Board, plaintiffs sought mandamus in this Court to compel the Board to issue [77 MICHAPP 752] final orders as required by § 23(2) of the act, M.C.L.A. § 338.1723(2); M.S.A. § 18.186(23)(2). This Court ordered the Board to issue final decisions on each application, retained jurisdiction and postponed decision on the merits of the claims originally raised until the Board had acted. The Board did issue final decisions denying each application, but this Court was forced to intervene again to compel a statement of specific reasons why the licenses were denied and also to compel issuance of temporary polygraph examiners licenses pending this decision.

I

The first issue which must be resolved is whether plaintiffs may challenge the denial of licenses by the Board through mandamus in the Court of Appeals. The Board contends that plaintiffs have not shown that they are entitled to mandamus relief or the absence of another adequate legal remedy.

The parties to this appeal agree that, as a general rule, mandamus will issue only to compel performance of a ministerial act to which plaintiff has a clear legal right and which defendant has a clear legal duty to perform. ³ See, LundBerg v. Corrections Commission, 57 Mich.App. 327, 225 N.W.2d 752 (1975). ⁴

[77 MICHAPP 753] These rules do not prohibit issuance of mandamus in this case. When plaintiff claims the license was arbitrarily refused or that the Board abused the discretion granted it under the statute, mandamus may issue to compel issuance of a license. Wilson v. Michigan State Board of Registration in Medicine, 228 Mich. 25, 199 N.W. 643 (1924), Price v. Township Board of Oakfield Township, 182 Mich. 216, 222, 148 N.W. 438 (1914).

Mandamus in the Court of Appeals ⁵ is the proper method to test the Board's denial of licenses. Although the denial order meets the literal requirements for circuit court appellate review under M.C.L.A. § 600.631; M.S.A. § 27A.631 and GCR 1963, 706, the circuit court's lack of authority to grant affirmative relief, in this case compel issuance of a license by a state board, makes relief available under that route inadequate. ⁶ See 3 Honigman & Hawkins, Michigan Court Rules Annotated, pp. 612-613. This Court is the appropriate [77 MICHAPP 754] forum to decide the questions raised by the Board's act of denying the licenses based on its interpretation of the statute. ⁷

II

Having decided that the mandamus action is proper, it is still necessary to determine if mandamus relief is appropriate. Plaintiffs claim that it is because the Board's interpretation of the statute was an abuse of discretion which resulted in an arbitrary denial of licenses.

Both plaintiffs sought licenses under § 9. That section provides:

"A person upon application to the board dated within 1 year after the effective date of this act, and upon payment of the required license fee, shall be issued an examiner's license hereunder, without examination, if he satisfies the registration requirements established by the board and satisfies the board by affidavit or otherwise that he is qualified as follows:

"(a) He has either 1 of the following:

"(i) He has actually engaged in the occupation, profession or practice as an examiner prior to January 1, 1969, and continuously since that time, utilizing exclusively during that period instrumentation which satisfies the requirements of section 4.

"(ii) He has actually engaged in an internship training program, or similar arrangement on a full-time basis prior to the effective date of this act or has satisfactorily completed such internship training program or similar arrangement and has engaged in the occupation, profession or practice as an examiner or intern prior to the effective date of this act, utilizing [77 MICHAPP 755] exclusively during that period instrumentation which satisfied the requirements of section 4.

"(b) He substantially fulfills the requirements for licensing as set forth in section 10. The board may issue temporary examiner's licenses to an applicant who otherwise qualifies under section 10 except for the time and experience factors set forth in section 10 to enable the fulfillment of these requirements by the applicant." M.C.L.A. § 338.1709; M.S.A. § 18.186(9).

The Board does not question Feist's compliance with the requirements of § 9(a). The Board did reject Schweitzer's application on the basis that he failed to meet either of the requirements of § 9(a).

Schweitzer has been practicing lie detection by mechanical device since 1962. Section 9(a)(i) is satisfied when an examiner was practicing his profession before January 1, 1969, and continuously since then with approved equipment. The instrument Schweitzer used in his investigations was not equipment which satisfies the requirements of § 4 of the act, M.C.L.A. § 338.1704; M.S.A. § 18.186(4). Schweitzer admits in his brief that the device he used was capable of measuring only galvanic skin response, one of the three components of the modern polygraph. See, Appendix B to Justice Williams' opinion in People v. Barbara, 400 Mich. 352, 419, 255 N.W.2d 171 (1977). Prior practice with a Stoelting Galvanoscope does not meet the requirements of § 9(a)(i).

In the detailed reasons finally issued for denying Schweitzer's license the board also found that he could not qualify under § 9(a)(ii) because he did not complete "his internship training, such as it was, prior to the effective date of this act". Schweitzer argues that effective date as used in § 9 means the internship program must have been completed by the compliance date which the Board determined [77 MICHAPP 756] to be July 15, 1975. See note 2. Schweitzer claims he finished his program before July 15, 1975.

One of the well established rules of statutory construction is that words be given a common construction according to the generally accepted meaning unless it appears from the context or otherwise in the statute that a different sense was intended. 21 Michigan Law and Practice, Statutes, § 88. Effective date, as the phrase is used in discussing legislative action, means the date upon which an act becomes law and is enforceable. In Michigan that date is governed by Const.1963, art. 4, § 27.

This construction is appropriate even if Schweitzer's argument concerning the purpose of the grandfather clause is accepted. If the purpose of the section is to allow those already practicing in the field to continue to practice after the state begins to regulate it, ⁸ then they must in fact have been practicing before the act became law. Schweitzer's program of internship ⁹ with approved equipment ran from November of 1973 to April of 1974. This was after the effective date of the act and does not meet the requirements of § 9(a)(ii). The date on which the Board enforces the penalty provisions of the act has no bearing on the statutory requirements for obtaining a license under the act.

III

The Board rejected Feist's license solely because he did not meet the requirements of § 10(d)(ii). [77 MICHAPP 757] Section 9(b) allows an applicant to be licensed under § 9 if he meets one of the requirements of § 9(a) and (substantially fulfills) the requirements of § 10.

Section 10(d)(ii) provides:

"Upon application and payment of the required fee, a person is qualified to receive a license as an examiner:

"(d) Who has either 1 of the following:

"(i) * * *

"(ii) A high school diploma or its equivalent from an accredited high school and at least 5 years of continuous investigative experience with a recognized governmental law enforcement or governmental investigative agency." M.C.L.A. § 338.1710(d)(ii); M.S.A. § 18.186(10)(d)(ii).

The Board has taken the position that to substantially comply with this provision the prior investigative experience must be governmental in nature. By resolution, the Board interpreted the "substantially fulfills" language of § 9(b) to require strict compliance with all § 10 requirements except § 10(f), (j) and (k).

This interpretation is much too narrow. It requires not substantial compliance, but absolute compliance with those requirements which the Board has, on its own initiative, chosen to enforce. Cf., People v. Butler, 387 Mich. 1, 8, 195 N.W.2d 268 (1972). The substantially fulfills requirement of § 9 applies to each of the requirements...