Walker v. Wolverine Fabricating & Mfg. Co., Inc.

• Decision Date: 07 January 1985
• Docket Number: Docket No. 74805
• Citation: 360 N.W.2d 264,138 Mich.App. 660
• Parties: William WALKER, Plaintiff-Appellant, v. WOLVERINE FABRICATING & MANUFACTURING CO., INC., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 264

360 N.W.2d 264

138 Mich.App. 660

William WALKER, Plaintiff-Appellant, v. WOLVERINE FABRICATING & MANUFACTURING CO., INC., Defendant-Appellee.

Docket No. 74805.

Court of Appeals of Michigan.

Submitted May 14, 1984.

Decided Nov. 6, 1984.

Released for Publication Jan. 7, 1985.

Law Offices of Philip Green by Barbara J. Kelly, Ann Arbor, for plaintiff-appellant.

Dahlberg, Mallender & Gawne by David M. Gaskin and Howard A. Serlin, Birmingham, for defendant-appellee.

Before KELLY, P.J., and BRONSON and SIMON, ^* JJ.

BRONSON, Judge.

Plaintiff appeals as of right from an order of the circuit court dismissing plaintiff's appeal to that court from the Michigan Civil Rights Commission's refusal to issue a charge against defendant.

On April 28, 1980, plaintiff filed a complaint with the Michigan Department of Civil Rights, alleging that defendant had unlawfully discriminated against him on the basis of his age. On October 17, 1980, the Civil Rights Commission (CRC) "found insufficient evidence on which to issue a charge" and issued an order of dismissal. On plaintiff's request for reconsideration, the CRC determined that the dismissal was inappropriate and reopened the complaint on May 1, 1981. On July 16, 1981, the CRC again "found insufficient evidence on which to issue a charge" and again dismissed plaintiff's complaint. Although plaintiff requested reconsideration of this dismissal on August 1, 1981, the CRC did not deny that request until March 21, 1983. On April 6, 1983, plaintiff filed an appeal in the Wayne County Circuit Court.

In a letter to counsel for both parties, the circuit court opined that the issue on appeal would be whether the CRC's decision not to issue a complaint was clearly erroneous and that, if the court so found, the appropriate relief would be to remand the matter to the CRC for further proceedings. The court stated that, accordingly, the proper appellee was the CRC and that it would grant plaintiff twenty days to serve process on the CRC, failing which the appeal would be dismissed.

Plaintiff's counsel responded, by letter, that he refused to either join the CRC as a defendant or brief the issue as to whether or not the CRC erred in failing to issue a formal charge because, in his view, the state constitution granted plaintiff a full trial on the merits in the circuit court. Following receipt of plaintiff's counsel's letter, the circuit court issued the order, appealed herein, dismissing plaintiff's appeal.

The precise question presented by the instant case is one of first impression, i.e., what is the nature of an appeal to the circuit court from a determination by the CRC not to issue a charge. The parties agree that, where a party appeals a decision of the CRC which follows the issuance of a charge and a subsequent hearing, that appeal before the circuit court is a trial de novo--a full new evidentiary hearing. Plaintiff contends that he is entitled to exactly the same type of trial on appeal from the CRC's decision not to issue a charge. Defendant argues that, on appeal, the circuit court is limited to determining whether the CRC acted in accordance with its rules and procedures in deciding not to issue a charge.

We begin our analysis by looking to the provision of the state constitution which establishes the procedure for taking an appeal from a final order of the CRC.

"Appeals from final orders of the [civil rights] commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court having jurisdiction provided by law." Const.1963, art. 5, Sec. 29. (Emphasis added.)

"The primary rule for the construction of constitutional provisions is that of 'common understanding'. The interpretation that should be given is that which reasonable minds, the great mass of people, would arrive at. A second rule is that, to clarify the meaning of a provision of the constitution, the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished may be considered." Grosse Ile Committee for Legal Taxation v. Grosse Ile Twp., 129 Mich.App. 477, 493, 342 N.W.2d 582 (1983).

In Burrell v. Annapolis Hospital, 36 Mich.App. 537, 193 N.W.2d 900 (1971), this Court applied the foregoing rules of construction in determining that art. 5, Sec. 29 of the constitution entitles appellants from adverse decisions of the CRC to a full new evidentiary hearing and not merely some form of review based on the record before the CRC. This conclusion was based on the language of art. 5, Sec. 29, i.e., the common understanding of the phrase "trial de novo", and on the opinion expressed by the delegates to the constitutional convention as to the meaning of the language chosen, 2 Official Record, Constitutional Convention 1961, p. 3118. The conclusion that the language was adopted in the spirit in which it was chosen is reinforced by the convention's comments in its address to the people of the state. The Constitutional Comments, in relevant part, provide:

"Appeals from final orders of the [civil rights] commission shall be tried anew before the circuit court having jurisdiction." 2 Official Record, Comments in address to the people 1962, p. 3384.

The holding in Burrell, supra, was expressly approved in Remick v. Burge, 39 Mich.App. 444, 446, 197 N.W.2d 868 (1972).

In Dixon v. Ford Motor Co., 402 Mich. 315, 316, 262 N.W.2d 666 (1978), reh. den. 402 Mich. 965 (1978), where the Michigan Supreme Court spoke to the standard of review in the Court of Appeals following circuit court review of a CRC decision, the Court noted that "[t]he matter was heard de novo in [the circuit] court, though no new witnesses or evidence [was] introduced". This statement implies that the Supreme Court recognized that, had the parties so chosen, they could have presented new witnesses and introduced evidence, i.e., had a new trial. This statement is in line with the comment of the Court of Appeals in Burrell, supra, 36 Mich.App. p. 540, 193 N.W.2d 900, that the parties were not prohibited from agreeing and stipulating to submission of the appeal from the CRC on the record. No such agreement was made in the case at bar.

We think that in Burrell, supra, this Court correctly held that "trial de novo" requires a full new evidentiary hearing before the circuit judge. Defendant acknowledges that, where the CRC's final order follows a hearing on the issuance of a charge, the appeal therefrom is the prescribed trial de novo before the circuit court. However, defendant argues that, where the CRC's final decision follows the Department of Civil Rights' refusal to issue a charge, the first step in the administrative procedure, the charging party is not entitled to a trial on the merits of his claim against the respondent named in the complaint. ¹

Defendant relies on the provisions of the Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., which delineate the procedure for appeals from final decisions of the CRC. Although the Legislature is empowered to control the manner in which the CRC exercises its powers, Michigan Civil Rights Comm. v. Clark, 390 Mich. 717, 212 N.W.2d 912 (1973), a legislative enactment which conflicts with the intention of the constitutional framers would be unlawful. Civil Rights Comm. v. Chrysler Corp., 64 Mich.App. 393, 399, 235 N.W.2d 791 (1975).

Pursuant to its constitutional authorization, the Legislature enacted Sec. 606 of the Elliott-Larsen Civil Rights Act, which provides in pertinent part:

"(1) A complainant and a respondent shall have a right of appeal from a final order of the commission, including cease and desist orders and refusals to issue charges, before the circuit court for the county of Ingham, or the circuit court for the county in which the alleged violation occurred or where the person against whom the complaint is filed, resides, or has his or her principal place of business. An appeal before the circuit court shall be reviewed de novo. If an appeal is not taken within 30 days after the service of an appealable order of the commission, the commission may obtain a decree for the enforcement of the order from the circuit court which has jurisdiction of the appeal." M.C.L. Sec. 37.2606; M.S.A. Sec. 3.548(606). (Emphasis added.)

Defendant argues that the legislative provision for de novo review is a lawful interpretation of the constitutional prescription for the hearing of an appeal as a trial de novo.

In Kar v. Hogan, 399 Mich. 529, 553, 251 N.W.2d 77 (1976), Justice Levin discussed the distinction between de novo review and a trial de novo.

"De novo review is distinguishable from a trial de novo, where the evidence may be considered as if there had been no prior determination. De novo review meant in practice a review of limited scope without definite guidelines." (Levin, J., dissenting, footnote omitted).

Justice Levin cited 2 Am.Jur.2d, Administrative Law, Sec. 698, p. 597, wherein the editors elaborated on the distinction:

"A trial or hearing 'de novo' means trying the matter anew the same as if it had not been heard before and as if no decision had been previously rendered. Thus, it is said that where a statute provides that an appeal shall be heard de novo such a hearing is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held, especially where the hearing is in a court of general, original jurisdiction. Where a statute provides for a trial de novo and does not provide that the findings of the administrative agency shall be conclusive or of any force, the whole matter is opened up for consideration on appeal as if the proceeding had been originally brought in the reviewing court."

Since there is a substantive difference between de novo review and trial de novo, we disagree with defendant's contention that the Legislature could have lawfully...