Todd v. Rochester Community Schools, Docket No. 12001
| Decision Date | 12 June 1972 |
| Docket Number | Docket No. 12001,No. 2,2 |
| Citation | 41 Mich.App. 320,200 N.W.2d 90 |
| Parties | Bruce Livingston TODD, Plaintiff-Appellee, v. ROCHESTER COMMUNITY SCHOOLS, a body corporate, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
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v.
ROCHESTER COMMUNITY SCHOOLS, a body corporate, Defendant-Appellant.
Released for Publication Aug. 23, 1972.
[41 Mich.App. 322]
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Michael J. Charbonneau, Birmingham, Monaghan, McCrone, Campbell & Crawmer, Detroit, for defendant-appellant.Lawrence D. Heitsch, Detroit, for plaintiff-appellee.
American Civil Liberties Union of Michigan, by Bruce T. Leitman, Stanley W. Kurzman, Bloomfield Hills, amicus curiae.
Before BRONSON, P.J., and V. J. BRENNAN and O'HARA, * JJ.
[41 Mich.App. 323] BRONSON, Presiding Judge.
On March 24, 1971, plaintiff, Bruce Livingston Todd, filed a complaint for a writ of mandamus against the defendant, Rochester [41 Mich.App. 324] Community Schools, in the Oakland County Circuit Court. Mr. Todd's complaint alleged that one of his minor children was enrolled in a course of instruction referred to as 'Current Literature' which was being taught in a Rochester public high school. Plaintiff averred that part of the curriculum in said course was the study of Slaughterhouse-Five or The Children's Crusade, 1 a novel by the contemporary American author, Kurt Vonnegut, Jr.
The gravamen of plaintiff's complaint was that Slaughterhouse-Five 'contains and makes reference to religious matters' and, therefore, 'the use of such book as a part or in connection with any course of instruction by a public school district or system is illegal and contrary to the laws of the land; namely, the First and Fourteenth Amendments of the United States Constitution.' 2 Predicated on these factual allegations, Mr. Todd requested that the Oakland County Circuit Court issue a writ of mandamus compelling the defendant school district to cease utilizing Slaughterhouse-Five 'as a part of a course of instruction in the Rochester Community Schools.' In his complaint, Mr. Todd did not allege that Slaughterhouse-Five was obscene nor that it had no literary value.
On March 31, 1971, defendant answered plaintiff's complaint. In its pleading the Rochester Community Schools affirmatively stated that the novel at issue, along with several others, 'is used in connection with a general secular course of instruction entitled 'Current Literature' and the fact that the same might incidentally refer to religious [41 Mich.App. 325] matters does not render its use in violation of the First and Fourteenth Amendments of the Constitution of the United States.' Defendant further contended that the selection of books to be used in its course of instruction was a matter exclusively within its administrative powers and not subject to judicial supervision nor review. 3
Subsequent to answering, defendant filed a motion for summary judgment of no cause of action on the basis that there was
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no genuine issue as to any material fact and that the Rochester Community School District was entitled to judgment as a matter of law. GCR 1963, 117.2(3). A hearing on this motion was held on April 7, 1971, before the Honorable Arthur E. Moore, Circuit Judge for the County of Oakland. At this time the parties stipulated to allow the novel into evidence, formally waived pretrial, and agreed to accept the court's decision predicated upon the pleadings, briefs and motions, with the book itself constituting the sole evidence.On May 13, 1971, the court filed a nine-page opinion granting plaintiff's requested relief 'if necessary'. On May 20, 1971, in the trial judge's temporary absence, the Presiding Judge of the Oakland County Circuit Court entered a judgment [41 Mich.App. 326] of mandamus. However, on May 28, 1971, the trial judge, on his own motion, set aside the May 20, 1971 judgment so he could make more appropriate findings of fact and law. GCR 1963, 517.1. A new hearing was held before Judge Moore on June 5, 1971. On June 9, 1971, a final opinion and order granting plaintiff a judgment of mandamus was issued. 4
On June 18, 1971, defendant filed a claim of appeal as a matter of right. On July 16, 1971, this Court granted the American Civil Liberties Union of Michigan permission to file a brief Amicus curiae. 5
After thorough study of the proceedings below, including a careful scrutiny of Slaughterhouse-Five, and aware that some of the legal questions suggested by these proceedings have apparently never been squarely passed upon by any other court in this country, we are constrained to reverse the trial court's judgment and permanently dissolve the previously issued judgment of mandamus. The reasons for our actions follow.
Initially we consider what we believe should have been the proper disposition of this matter in the court below. As previously indicated on March 31, 1971, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(3). Technically, defendant's requested relief was more properly predicated upon the authority of GCR 1963, 117.2(1). For reasons we are about to delineate, hold that even if all the factual allegations [41 Mich.App. 327] pleaded in the instant complaint are taken to be true, Bielski v. Wolverine Insurance Co., 379 Mich. 280, 283, 150 N.W.2d 788, 789 (1967), plaintiff still has 'failed to state a claim upon which relief can be granted' and defendant should prevail as a matter of law.
Our Court considered the nature of GCR 1963, 117.2(1) in Major v. Schmidt Trucking Co., 15 Mich.App. 75, 166 N.W.2d 517 (1968). In Major, Judge Charles Levin, writing for a unanimous panel, observed that:
'A motion under GCR 1963, 117.2(1) asserts that the opposing party's pleading fails to state a claim upon which relief can be granted. The motion may be granted only where it appears on the face of the challenged pleading that the pleader cannot recover.' Major, supra, at 78, 166 N.W.2d at 518.
See, also, Bloss v. Williams, 15 Mich.App. 228, 231, 166 N.W.2d 520 (1968); Johnston's Administrator v. United Airlines, 23 Mich.App. 279, 286, 178 N.W.2d 536 (1970). The fact that defendant chose to support its motion by appending an affidavit is perfectly proper inasmuch as the combining of subparts of GCR 1963, 117 has been approved. Durant v. Stahlin, 375 Mich. 628, 644, 135 N.W.2d 392 (1965). But it was not necessary for defendant to affix an affidavit with its motion for summary judgment to prevail inasmuch as plaintiff's
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complaint pleaded an alleged cause of action heretofore unknown to our law. 6 Plaintiff's theory will remain [41 Mich.App. 328] an unwelcome stranger to our jurisprudence unless and until the United States Supreme Court or our State Supreme Court dicate otherwise.Pursuant to GCR 1963, 820.1(1) and (7) we grant defendant's requested summary judgment of no cause of action and reverse the trial court's judgment of mandamus.
Plaintiff's complaint specifically pleads only that Slaughterhouse-Five is used in a public school and 'contains and makes reference to religious matters.' We have been cited to no authority, nor has our own research uncovered any, which holds that Any portion of Any constitution is violated simply because a novel, utilized in a public school 'contains and makes reference to religious matters'. [41 Mich.App. 329] This concept is legally repugnant to what we believe is the time-tested rationale underlying the First and Fourteenth Amendments. By couching a personal grievance in First Amendment language, one may not stifle freedom of expression. Vigorously opposed to such a suggestion, we stand firm in rendering plaintiff's theory constitutionally impermissible.
If plaintiff's contention was correct, then public school students could no longer marvel at Sir Galahad's saintly quest for the Holy Grail, nor be introduced to the dangers of Hitler' Mein Kampf nor read the mellifluous poetry of John Milton and John Donne. Unhappily, Robin Hood would be forced to forage without Friar Tuck and Shakespeare would have to delete Shylock from The Merchant of Venice. Is this to be the state of our law? Our Constitution does not command ignorance; on the contrary, it assures the people
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that the state may not relegate them to such a status and guarantees to all the precious and unfettered freedom of pursuing one's own intellectual pleasures in one's own personal way.We hasten to point out that plaintiff did not allege that the Rochester public schools were intentionally taking action which was derogatory to Christianity. Nor did plaintiff aver that defendant was attempting to 'establish' any specific religious sect in preference over another; nor one over all others; nor none at all. Had plaintiff's complaint suggested such a state of affairs, the question before the Court would be substantially different. But in this case the evidence is undisputed that the novel in question, and the Bible, were being utilized as literature. There is no allegation nor proof that Slaughterhouse-Five was being taught subjectively, or that the religious or anti-religious [41 Mich.App. 330] view contained therein were espoused by the teachers.
Portions of the trial court's rulings were as follows:
'40. It is hereby ordered that the book, 'Slaughterhouse Five or The Children's Crusade'...
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