Van Antwerp v. City of Detroit, Docket No. 13160
| Decision Date | 25 June 1973 |
| Docket Number | Docket No. 13160,No. 1,1 |
| Citation | 47 Mich.App. 707,210 N.W.2d 3 |
| Parties | Philip J. VAN ANTWERP, Plaintiff-Appellee, v. CITY OF DETROIT, a municipal corporation, and Board of Trustees, Policemen and Firemen Retirement System, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Ronald Zajac, Asst. Corp. Counsel, Detroit, for defendants-appellants.
Philip J. Neudeck and Frank P. Neaton, Detroit, for plaintiff-appellee.
Before BRONSON, P.J., and R. B. BURNS and DANHOF, JJ.
The trial court ordered that mandamus issue against defendants for the payment of pension benefits to plaintiff from March 30, 1965, to the present with interest therefrom until paid and for benefits accruing in the future. From this decision defendants sought leave to appeal. This Court granted leave and ordered a stay of proceedings below to consider the following issues:
(1) Did defendants have the right to terminate pension benefits awarded pursuant to the City of Detroit Policemen and Firemen Retirement System upon plaintiff's election to the Common Council of defendant city?
(2) Is a writ of mandamus an appropriate remedy for the enforcement of plaintiff's pension rights?
(3) Did plaintiff voluntarily and knowingly waive his right to past, present, and future pension benefits?
(4) Did the trial judge commit reversible error by finding plaintiff guilty of laches and limiting his recovery to a period commencing March 30, 1965 rather than April 1, 1963, the date plaintiff was elected to the Common Council of defendant city?
The parties have presented this Court with the following stipulation of facts:
'Plaintiff became a member of the Detroit Police Department June 1, 1937, and after serving continuously for 25 years, retired June 2, 1962, with the rank of Inspector. The Policemen and Firemen Retirement System originally came into existence July 1, 1941, * * * and plaintiff, at all times during his membership in the Detroit Police Department, contributed his full share into the pension fund established by the retirement system. From the date of his retirement, plaintiff was paid all pension benefits until on or about April 8, 1963.
'April 1, 1963, plaintiff was elected by the voters of the City of Detroit as a member of the Common Council of said city, and was sworn into said office April 6, 1963. Plaintiff was paid his regular pension payment for the month of April, 1963, but on the first day of May, 1963, demand was made upon him by defendants to return the sum of $178.57, which sum represented his April, 1963 pension payment, for the stated reason that he was not entitled to the pension payment while receiving compensation as a member of the Common Council. Said sum of $178.57 represents the difference between the monthly check and the annuity payment portion of $28.13.
'Plaintiff has received (and continues to receive) a monthly annuity of $28.13 since June 2, 1962, the date of his retirement. Plaintiff was advised by Mr. Lyons that it was against the policy of the city (on public policy grounds) to carry a person on the retirement rolls and pay him a pension while at the same time carrying a man as an active employee and paying him a salary. Mr. Lyons was told by Mr. Pelham, City Controller, (that to be consistent with the above policy) it was necessary for him to get the pension check back received by Councilman Van Antwerp, and for him to sign a waiver of his pension payments so long as he continued to occupy the office of councilman. Thus, plaintiff was advised that he would not receive his pension, except for the annuity payment of $28.13 which he would receive while he received a salary as councilman.
'Mr. Lyons further advised plaintiff that it was the city policy to request the signing of a waiver in such cases to provide a definite record for the pension files, and to provide definite notice to the retirant of the reasons why the pension would be withheld and to indicate when the pension would again continue.
'The waiver was presented to plaintiff by Mr. Fred Lyons, in Lyons' office, on May 1, 1963, and was signed by plaintiff to be effective April 8, 1963, and witnessed by Mr. Fred Lyons and Mr. Peter Zylich at that time and place. Neither the Corporation Counsel nor any of his staff was present at the signing of the waiver. Furthermore, neither the Corporation Counsel nor any of his staff directly advised plaintiff that he was required to sign a waiver. Plaintiff read said document prior to signing. On May 1, 1963, plaintiff returned to defendants the sum of $178.57.
'* * * (I)n a letter dated September 4, 1970, plaintiff requested the Common Council of the City of Detroit to take action on his request for payment of pension. September 14, 1970, the Corporation Counsel of the City of Detroit gave a written opinion to the Common Council on its request * * * pointing out that the Common Council had no jurisdiction in this matter.
The trial judge by written opinion ordered that mandamus issue for the payment of pension benefits commencing March 30, 1965, and benefits accruing in the future. This judgment was subsequently modified to include interest from that date until the benefits were paid and restore plaintiff to the rolls of defendant's retirement system.
Defendants contend that plaintiff had no vested right to pension benefits from the Policemen and Firemen Retirement System prior to the effective date of art. 9, § 24 of the 1963 Michigan Constitution, which changed the character of pension plans and retirement systems to 'contractual obligations'. 1 Relying upon Brown v. Highland Park, 320 Mich. 108, 30 N.W.2d 798 (1948), and Retired Policemen and Firemen of the City of Lincoln Park v. Lincoln Park, 6 Mich.App. 372, 149 N.W.2d 206 (1967), defendants claim unfettered control in the administration of their retirement system. Although these decisions permitted the cities involved to modify their retirement systems with resulting adverse effect upon plaintiffs-retirees, they do not provide defendants with the broad power they seek herein.
In Brown v. Highland Park, Supra, the city had adopted a Charter amendment which reduced the pension benefits to recipients in some cases. Relying upon quoted precedent, the Brown Court concluded that the pension system created no contract in which the recipients had vested rights. Since each plaintiff entered the fund with knowledge that it could be amended and received no express provision that the pension represented an irrevocable portion of their salary, the Brown Court held that the city had the power to amend or terminate the fund at will.
This Court in Retired Policemen and Firemen of Linclon Park v. Lincoln Park, Supra, relied upon the Brown case for the proposition that municipal employees possessed no vested rights in the challenged pension plan prior to the effective date of the 1963 Constitution. Like Brown, the facts of this case provide an insight into the underpinnings of the decision. The City of Lincoln Park created a pension plan by a charter amendment in 1943. In 1957, the city changed the formula for awarding pension benefits by Charter amendment which reduced the annuities payable to the petitioner. Although the Court recognized the defendant city's power to alter the pension plan in the Lincoln Park case, it reached this decision upon a factual background in which the defendant city's modifications were accomplished by Charter amendment.
Herein lies the distinction controlling the instant case. While defendants possess the power to revise, increase, diminish, or revoke pension benefits prior to the effective date of the 1963 Constitution, such changes must be effected by charter amendment. This conclusion is based upon the fact that the retirees have rights in functioning pension plans, albeit not vested contract rights, which warrant recognition until altered by the governing authority's appropriate action. Our characterization of plaintiff's interests as rights implies some minimal procedural protection and is sustained by prior case law.
In O'Connell v. Dearborn Police and Fire Pension Board, 334 Mich. 208, 54 N.W.2d 301 (1952), the Court issued a writ of mandamus directing that pension benefits be paid since plaintiffs had completed all the prerequisites of eligibility. The clear import of this decision is that absent the existence of an emergency or unusual circumstances, petitioners receive an enforceable right upon completing the prerequisites of eligibility for pension benefits. 2 The Brown Court characterized the retirees' interests in the pension fund as follows:
'At best plaintiffs in this case have an expectancy based upon Continuance of existing charter provisions.' Brown, supra, p. 114 of 320 Mich., p. 800 of 30 N.W.2d. (Emphasis added.)
The significance of this language is found in its recognition that the retirees' interests flow from the Existing charter provisions. The permissible inference created by this language is that substantive changes in the retirement system should be based upon charter amendments revising the nature of existing and controlling charter provisions. This inference is supported by the O'Connell Court's...
To continue reading
Request your trial
-
Lothian v. City of Detroit
...in August, 1967. The catalyst in this case was the Court of Appeals issuance, on June 25, 1973, of its opinion in Van Antwerp v. Detroit, 47 Mich.App. 707, 210 N.W.2d 3 (1973). 3 The facts of the Van Antwerp case are facially similar to those in the case at bar. There, a pensioner of the Ci......
-
Moore v. Marshall
...circuit court denied the writ of mandamus, addressing appellant's first three arguments as summarized here: (1) Van Antwerp v. Detroit, 47 Mich.App. 707, 210 N.W.2d 3 (1973), lv. den. 390 Mich. 781 (1973), is distinguishable and appellant has not been denied any financial benefit provided u......