Hanselman v. Killeen

316 N.W.2d 237, 112 Mich. App. 275
CourtMichigan Court of Appeals
DecidedJanuary 6, 1982
DocketDocket 49009
StatusPublished
Cited by3 cases

This text of 316 N.W.2d 237 (Hanselman v. Killeen) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hanselman v. Killeen, 316 N.W.2d 237, 112 Mich. App. 275 (Mich. Ct. App. 1982).

Opinions

Per Curiam.

Plaintiff filed suit in Wayne County Circuit Court seeking to enjoin revocation of his concealed weapon license by the Wayne County Concealed Weapon Licensing Board. The circuit court denied relief, and plaintiff appeals as of right.

Plaintiff was issued a concealed weapon license, restricted to business, home, and bank. On May 28, 1979, plaintiff’s vehicle was stopped by a Michigan state trooper in the vicinity of Lapeer, Michigan. At the trooper’s request, plaintiff produced his driver’s license, which was attached to his concealed weapon license. The officer asked if plaintiff was carrying a weapon and confiscated the weapon upon receiving an affirmative response. The local prosecutor sent the officer’s report to the defendant Wayne County Concealed Weapon Licensing Board ("licensing board”).

[278]*278The licensing board convened on July 10, 1979, and revoked plaintiffs weapon license. Since no hearing was conducted, plaintiff had no opportunity to present his case to the licensing board. The board’s action was based solely on the state trooper’s report and the letter from the local prosecutor.

Concealed weapon licensing boards are specifically required to conduct a hearing before revoking any weapon license. MCL 28.428; MSA 28.96. Accordingly, the circuit court granted plaintiff’s ex parte motion for an injunctive order requiring defendants to issue a license to plaintiff and to afford him a revocation hearing.

The board conducted such a hearing on September 21, 1979. MCL 28.426(5); MSA 28.93(5) provides that a concealed weapon license "shall be an authorization to carry a pistol in compliance with this section only to the extent contained in the face of the license and the license shall be revoked by the board if the pistol is carried contrary to the authorization”. The state trooper gave testimony tending to show that when the weapon was confiscated plaintiff was not engaged in "business” and therefore was carrying a weapon "contrary to the authorization of his license”. Plaintiff and his employer testified that when the weapon was confiscated plaintiff was carrying $7,000 in cash to be delivered to the employer the following day.

In the course of the trooper’s testimony, it became apparent that he had discussed the case with the licensing board prior to the hearing and that the board had told him "the essence of what transpired before the hearing”.

After the hearing, the licensing board informed plaintiff that it had decided to cancel his license on the ground of improper use of license”. Plaintiff [279]*279thereupon instituted a second civil action in Wayne County Circuit Court, once again seeking to enjoin revocation of his license. Plaintiff contended that the licensing board failed to comply with two provisions of the Administrative Procedures Act of 1969 ("APA”), MCL 24.201 et seq.; MSA 3.560(101) et seq. The circuit court held that the APA was inapplicable to the licensing board’s proceedings and denied relief, prompting this appeal.

The licensing board initially attacks the propriety of the present appeal, claiming that plaintiff "has not challenged the [circuit] court’s denial of relief’, and that therefore no grounds for appeal have been presented. To the contrary, plaintiff has properly challenged the circuit court’s holding that the APA is inapplicable to the licensing board’s proceedings. Consequently, this contention is without merit.

The purpose of the Legislature in enacting the APA was, inter alia, "to provide for state agency administrative procedures and contested cases and appeals therefrom in licensing and other matters * * 1969 PA 306, MCL 24.201 et seq.; MSA 3.560(101) et seq.

The APA defines an "agency” as "a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action”. MCL 24.203(2); MSA 3.560(103)(2). Clearly, the licensing board is a "board * * * created by * * * statute”. However, the APA is inapplicable to the board’s proceedings unless the board is also a "state * * * board * * * created by * * * statute”. (Emphasis supplied.) This is a question of first impression.

The licensing board is part of a uniform statewide system created by the state to control and [280]*280regulate the possession of firearms. County licensing boards are not created under county governmental authority and are not subject to county control. The statute creating the licensing boards indicates substantial state involvement: (1) Each board must adhere to a comprehensive scheme of state-imposed rules; (2) a representative of the director of the Department of State Police is a member of each board; and (3) the state police check fingerprints of applicants and provide license forms.

The regulation of firearms is within the state’s police power. See, e.g., Bay County Concealed Weapons Licensing Board v Gasta, 96 Mich App 784, 788; 293 NW2d 707 (1980):

"The existence of the Concealed Weapons Licensing Board reflects the state’s legitimate interest in limiting public access to weapons * * *.”

Although the Michigan courts have not had occasion to deal with this question, other jurisdictions have addressed analogous issues. For example, the Washington Supreme Court, in holding that municipal housing authorities were excluded from the Washington Administrative Procedures Act, stated:

"We believe the legislature meant what it said when it defined 'agency’ * * * for the purpose of [the Washington Administrative Procedures Act] as 'any state board * * *.’ The legislature did not intend this definition to include local agencies * * * that are not concerned with statewide programs or that are not part of a statewide system.” Riggins v Housing Authority of Seattle, 87 Wash 2d 97, 100-101; 549 P2d 480 (1976). See Revised Code of Washington 34.04.010 et seq. (Emphasis supplied.)

[281]*281The Michigan concealed weapon licensing boards administer a statewide program and are part of a statewide system. The Legislature has indicated its intent to include the boards within the APA definition of an "agency”. Accordingly, we hold that the defendant licensing board must comply with the requirements of the APA.

Since we have concluded that the plaintiff is entitled to the procedural protections of the APA, we need not decide whether similar procedural rights are mandated by the Due Process Clauses of the United States Constitution and the Michigan Constitution.

The licensing board failed to comply with two provisions of the APA. First of all, the APA provides detailed requirements for final orders of "agencies”:

"A final decision or order of an agency in a contested case shall be made within a reasonable period, in writing or stated in the record and shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. If a party submits proposed findings of fact which would control the decision or order, the decision or order shall include a ruling upon each proposed finding.

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Related

Hanselman v. Wayne County Concealed Weapon Licensing Board
381 N.W.2d 778 (Michigan Court of Appeals, 1985)
Hanselman v. Wayne County Concealed Weapon Licensing Board
351 N.W.2d 544 (Michigan Supreme Court, 1984)
Hanselman v. Killeen
316 N.W.2d 237 (Michigan Court of Appeals, 1982)

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Bluebook (online)
316 N.W.2d 237, 112 Mich. App. 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanselman-v-killeen-michctapp-1982.