City of Ypsilanti v. Civil Rights Commission

221 N.W.2d 923, 55 Mich. App. 103, 1974 Mich. App. LEXIS 792, 8 Empl. Prac. Dec. (CCH) 9731

• Court: Michigan Court of Appeals
• Decided: August 15, 1974
• Docket: Docket 18991
• Status: Published

Opinions

O’Hara, J.

In 1963 this state adopted a new constitution. One of its provisions, article V, § 29, provides as follows:

"There is hereby established a civil rights commission which shall consist of eight persons, not more than four of whom shall be members of the same political party, who shall be appointed by the governor, by and with the advice and consent of the senate, for four-year terms not more than two of which shall expire in the same year. It shall be the duty of the commission in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. The legislature shall provide an annual appropriation for the effective operation of the commission.

"The commission shall have power, in accordance with the provisions of this constitution and of general laws governing administrative agencies, to promulgate rules and regulations for its own procedures, to hold hearings, administer oaths, through court authorization to require the attendance of witnesses and the submission of records, to take testimony, and (o issue appropriate orders. The commission shall have other powers provided by law to carry out its purposes. Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state.

“Appeals from final, orders of the 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 V, §29.

It is to be noted carefully that the four factors of unlawful discrimination over which the commission was granted jurisdiction were "religion, race, color or national origin”. No more, no less.

However, before the Constitution of 1963 was adopted, the Legislature had enacted a Fair Employment Practices Act. MCLA 423.301 et seq.; MSA 17.458(1) et seq. Its legislative history is as follows:

1955 PA 251 was given effect October 14 of that year. Then, effective January 1, 1964, the Legislature enacted yet another statute. It purported to transfer to the Civil Rights Commission the powers and duties of the Fair Employment Practices Commission. MCLA 37.6; MSA 3.548(6). In 1965 the Fair Employment Practices Act was amended to grant the Civil Rights Commission, successor agency to the now defunct Fair Employment Practices Commission, jurisdiction over discriminatory employment practices with respect to age. MCLA 423.303a; MSA 17.458(3a). By a 1966 amendment the Civil Rights Commission’s jurisdiction was further expanded to include complaints involving sex discrimination in employment. MCLA 423.303a, supra.

The statements of questions involved are stated, almost to the word, identically.

"I.

"Whether Section 37.6 and related sections of the Compiled Laws of the State of Michigan, extending the jurisdiction of the Civil Rights Commission beyond the expressed grant of jurisdiction embodied within the Constitution of 1963 are constitutionally valid.

"The trial court answered this question 'yes’.

"The defendant-appellee would answer this question 'yes’.

"II.

"Assuming the validity of the statutes in question, whether the allegations contained within the charge of the Civil Rights Commission are sufficient to confer jurisdiction upon the Civil Rights Commission within the terms of that statute.

"The defendant-appellee would answer this question 'yes’.”

The facts, which were stipulated, necessary to an understanding of the stated legal issues are as follows. One Mary Foley applied for a position as a member of the police force of plaintiff city. She was rejected. She filed a complaint with defendant Civil Rights Commission alleging unlawful discrimination because of her age, race and sex. The commission conducted an investigation, and found probable cause to support Mary’s complaint as to age and sex only.

Plaintiff city did not answer the complaint on the merits. Rather it started a suit in circuit court seeking an order of superintending control directing the commission to cease its proceedings as being in excess of its constitutional powers, which could not be legislatively expanded. Additionally, said the city, not only does the commission lack jurisdiction, Mary did not make 'out a case of discrimination on the merits. Thirdly, the city alleged that Mary was disqualified because Ypsilanti as a home-rule city is clearly entitled to prescribe reasonable regulations for the qualifications of its employees.

The trial judge held against the city on the first stated question and did not pass upon the second. He favored us with a detailed and well documented opinion. We take this opportunity also to commend both counsel for their comprehensive briefs and their incisive oral presentations.

At our level of adjudication we are bound by precedential opinion of the Supreme Court. On the first question as to the right of the commission to entertain the complaint we affirm the trial judge on the authority of Beech Grove Investment Co v Civil Rights Commission, 380 Mich 405; 157 NW2d 213 (1968). The opinion reflects differing views of the problem before us. Justice Adams stands for a liberal view of the authority of the commission to enforce any right that may fairly be called a "civil right” and which stems from the constitutional provision itself, any other statute dealing with a civil right, together with all rights emanating from the common law of this State.

Justice Souris in a separate opinion held that the commission had the right and duty, with or without express enabling legislation, to protect against discriminatory denial of those civil rights which are of the magnitude of fundamental rights of citizenship and of the essence of civil freedom.

Justices Black, Dethmers, and Kelly in dissent held tersely and clearly that legislative implementation was requisite under the stipulated question of that case.

The majority of the Court approved the grant of additional rights and duties to the commission. We are bound by the spirit and letter of that holding.¹

We turn now to what we consider the dispositive issue.

Ypsilanti is a home-rule city. Its legislative body is permitted to make policy that is not inconsistent with state statutes or is not constitutionally infirm.

In the exercise of this legislative judgment it chose to restrict candidates for members of its police force to applicants between the ages 21 and 31.² Certainly the municipality has the right to establish bona fide occupational qualifications for various job classifications.³

It is not. for this Court or any judicial reviewing authority so far as we know to say to Ypsilanti "you must consider applicants for membership of the police force begining at age 18 or extending to age 45”. We cannot by judicial fiat disenfranchise the voters of Ypsilanti in a purely legislative question.

Under the stipulated facts applicant Foley was ineligible for consideration as a matter of law.

That part of the opinion and order of the trial judge authorizing the commission to proceed with the charge of unlawful discrimination on the grounds of age and sex is reversed. The cause is remanded to the trial court for entry of a judgment granting superintending control over the commission to the extent herein delineated.

No costs, a public question.

Holbrook, J., concurred.

1 For a thoughtful discussion relative to the possible implications of Beech Grove Investment Co v Civil Rights Commission, 380 Mich 405; 157 NW2d 213 (1968), see 15 Wayne L Rev 3, 27-29 (1968).

2 It may be more than mere coincidence that the regulations of the City of Ypsilanti contain virtually identical age limitations to those found in MCLA 38.510; MSA 5.3360:

3 See MCLA 423.303a(a); MSA 17.458(3a)(a).