Smith v. Mayor of City of Ecorse

• Decision Date: 06 March 1978
• Docket Number: Docket No. 30827
• Citation: 81 Mich.App. 601,265 N.W.2d 766
• Parties: Raymond SMITH, Plaintiff-Appellant, v. MAYOR OF the CITY OF ECORSE, Acting Chief of Police of the City of Ecorse and City of Ecorse, Defendants-Appellees. 81 Mich.App. 601, 265 N.W.2d 766
• Court: Court of Appeal of Michigan — District of US

Page 766

265 N.W.2d 766

Raymond SMITH, Plaintiff-Appellant, v. MAYOR OF the CITY OF ECORSE, Acting Chief of Police of the City of Ecorse and City of Ecorse Defendants-Appellees.

Docket No. 30827.

81 Mich.App. 601, 265 N.W.2d 766

Court of Appeals of Michigan.

March 6, 1978.

Released for Publication May 23, 1978.

[81 MICHAPP 602] Pitts, Mann & Prewitt, P. C. by Brenda P. Prewitt, Detroit, for plaintiff-appellant.

Peter E. Bec, Southgate, for Mayor & Acting Chief of Police.

Victor Mitea, Allen Park, for City of Ecorse.

Before BASHARA, P. J., and J. H. GILLIS and KAUFMAN, JJ.

KAUFMAN, Judge.

Plaintiff-appellant, a police officer in the City of Ecorse, was suspended on February 21, 1975. A complaint was filed against him consisting of three criminal allegations. A hearing was scheduled before the Police and Fire Commission of the City of Ecorse but was adjourned at the request of appellant's counsel. Prior to the adjourned hearing, appellant filed a lawsuit in Wayne County Circuit Court. On July 3, 1975, the circuit court struck two of the allegations against appellant and on August 7, 1975, entered an order remanding the matter to proceed on the third count only: making inconsistent statements before the Wayne County prosecutor's office and in a trial of a criminal cause. In his petition to the Wayne County Circuit Court, appellant demanded and was granted a hearing under the Veteran's Preference Act. ¹ [81 MICHAPP 603] Pursuant to the August 7, 1975, order, on September 3, 1975, a hearing was commenced before the Honorable Charles G. Coman, Mayor of the City of Ecorse. However, before this hearing could be concluded, Mayor Coman entered Detroit Osteopathic Hospital and the hearing was adjourned without date pending his recovery and emergence from the hospital.

During the mayor's illness, the parties returned to Wayne County Circuit Court and appellant requested that the then mayor pro tem. conduct a new hearing. Appellee objected contending that the mayor pro tem. could not hold the hearing because the mayor was living and the Veteran's Preference Act provides that the mayor will conduct the hearing.

Mayor Coman did not return from the hospital where he died on November 29, 1975. Following Coman's death, Dora Gaines was elected the new Mayor of Ecorse.

Proceeding under the August 7, 1975, order of the circuit court, the parties attempted to have the matter heard by the newly elected Mayor. However, when appellant and appellees, along with their respective counsel, appeared for the hearing, Mayor Gaines disqualified herself on the basis that her personal knowledge of the appellant and his family might interfere with her ability to render a fair decision.

Appellant claims that the litigants returned to [81 MICHAPP 604] the Wayne County Circuit Court to ask for direction. Appellee does not address this issue.

The docket card does not show a hearing on this issue and appellant admits that no order was entered by the trial court.

Subsequently, Mayor Gaines designated Harry J. White as mayor pro tem. to hear the matter. The hearing under the Veteran's Preference Act was held by Mayor Pro Tem. White without the presence of appellant or his counsel although appellant admits he received proper notice. Mayor Pro Tem. White found, based on the unrefuted testimony, that appellant was guilty of the charges against him and should be dismissed. The trial court upheld the administrative hearing. We affirm.

The trial court in its opinion stated:

"The Court's function here is to ascertain if there was competent, material and substantial evidence upon which the Administrative decision can be based.

" 'Judicial yardstick for assessing validity of an administrative decision is whether the decision is supported by competent, material and substantial evidence on the whole record.' Union Bank & Trust Co. v. First Michigan Bank & Trust Co., 44 Mich.App. 83, 205 N.W.2d 54 (1972).

" 'In determining questions such as here presented to the trial court and now presented in this appeal to this court, neither court should superimpose its judgment over that of the commission and review questions of fact and weigh evidence, nor determine whether the probabilities preponderate one way or another, but such appeals simply determine whether the evidence is such as justifies the findings of the Commission.'

"Carroll v. City Commission, etc., 266 Mich. 123, 253 N.W. 240 (1934); Bischoff v. County of Wayne, 320 Mich. 376, 31 N.W.2d 798 (1948); Mapley v. City of Pontiac, ...