Vance v. Ananich

378 N.W.2d 616, 145 Mich. App. 833
CourtMichigan Court of Appeals
DecidedSeptember 30, 1985
DocketDocket 73152
StatusPublished
Cited by8 cases

This text of 378 N.W.2d 616 (Vance v. Ananich) 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
Vance v. Ananich, 378 N.W.2d 616, 145 Mich. App. 833 (Mich. Ct. App. 1985).

Opinions

Beasley, J.

This case presents an issue of first impression in Michigan which involves whether a municipal ombudsman may subpoena witnesses to appear before him. In fact, the whole matter of ombudsmen is of relatively recent origin in Michigan. Nationally, "ombudsmania” in the United States, which is defined as the emerging and growing ombudsman phenomenon, is sometimes said to date from 1966,1 when Walter Gellhorn published his seminal works on the subject.2 In the broad sense, the ombudsman concept is said to spring from the question of how best to inquire fairly and quickly into asserted official impropriety or insensitivity.

Some writers view the ombudsman concept as an informal procedural system which is in competition with our traditional adversary system for the resolution of governmental grievances. Those who believe in the ombudsman concept are likely to place limitations on the spread of adversary proceedings into every corner of the administrative law cupboard, as has occurred under the aegis of constitutional due process. Since we seem to be reaching the realization that use of the adversary [836]*836process is, in some areas, bad social policy, perhaps the time has come to give the ombudsman concept a chance.

In the within case, defendant, James D. Ananich, in his capacity as ombudsman for the City of Flint, appeals as of right from a circuit court injunction permanently prohibiting him from issuing subpoenas.

Defendant is the ombudsman of the City of Flint and, in that capacity, he served plaintiff, Patricia Vance, with a subpoena to appear at his office on January 10, 1983, for the purpose of giving testimony. On January 5, plaintiff filed in circuit court a petition to quash the subpoena, alleging that defendant was without lawful authority to issue it. Following a show cause hearing, the circuit court granted plaintiff’s petition and ordered defendant to "cease and desist from issuing subpoenas”.

On appeal, defendant argues that conferring the power to issue an administrative subpoena upon the ombudsman was a valid exercise of permissive municipal powers under the home rule cities act, MCL 117.1 et seq.; MSA 5.2071 et seq. In general, the power to issue a subpoena must be expressly conferred by statute and, in the absence of a specific grant of authority, an administrative agency or official has no power to issue a subpoena.3 Subpoena power not expressly conferred will not be implied unless essential to fulfillment of the objectives of a statute.4

Section 3-505 of the Charter of the City of Flint vests the city’s ombudsman with subpoena power:

"A. The Ombudsman may request and shall be given necessary assistance and information by each agency.

[837]*837"B. The Ombudsman may subpoena witnesses, administer oaths, take testimony, require the production of evidence relevant to a matter under investigation, enter and inspect premises within the control of any agency during regular business hours, and establish rules of procedure in accordance with Section 1-801 of this Charter.”

The Flint City Charter was adopted pursuant to the home rule cities act. That act provides for certain mandatory provisions that all city charters must contain and also for other permissible provisions, which city charters may contain. The act also contains some express limitations on city power. The question of whether a city ombudsman has subpoena power involves neither a mandatory provision nor an express limitation. The issue in this case is whether it is a permissible exercise of municipal power. Section 4-j of the home rule cities act provides in pertinent part:

"Each city may in its charter provide:

"(1) For the establishment of any department that it may deem necessary for the general welfare of the city, and for the separate incorporation thereof: Provided, however, That these provisions shall not be construed to extend to and include public shcools;

* * *

"(3) For the exercise of all municipal powers in the management and control of muncipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state.” MCL 117.4j; MSA 5.2083.

It is this section that defendant contends gives cities the power of administrative subpoena.

[838]*838Cases construing the home rule cities act have not been altogether consistent as to the scope of powers granted to the cities. People v Sell5 quoting from earlier decisions, explained the change in city government which resulted from the home rule cities act:

" 'The new system (referring to the home rule act) is one of general grant of rights and powers, subject only to certain enumerated restrictions, instead of the former method of only granting enumerated rights and powers definitely specified. We must assume the act was passed with that intent and construe it accordingly.’ ”

The act was intended to secure a greater degree of home rule and to confer almost exclusive right in the conduct of municipal affairs to the cities themselves. The act is to be liberally construed, and the same presumption of constitutionality applies to a city ordinance as to a state statute.6 Sell went on to state: "Except as limited by the Constitution or by statute, the police power of Detroit as a home rule city is of the same general scope and nature as that of the State.”[7]

In the within case, the trial court held that the home rule cities act granted the cities only those powers that are essential to local self-government, citing Dooley v Detroit,8 Home Owners’ Loan Corp v Detroit,9 and Dawley v Ingham Circuit Judge.10 However, in Dooley, in addition to stating that powers exercised by home rule cities should be essential, the Court also went on to state that every power exercised by a city need not be specifi[839]*839cally delegated by legislative grant. In Dawley, in which the Court sustained the power of the City of Lansing to pass a zoning ordinance, the Court stated:

"It is fundamental that the legislature has power to delegate to cities authority to enact such ordinances as are essential or incident to local governmental functions.[11]

In holding that administrative subpoena power is not essential to city government, the trial court in the instant case placed much emphasis on the potential for abuse of subpoena power by the ombudsman and of a lack of standards controlling its use. As indicated, in Michigan, the ombudsman concept is of relatively recent origin. In part, it represents an effort to bring the bureaucracy under better public scrutiny and to give citizens a means to be heard regarding minor grievances against government.

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Vance v. Ananich
378 N.W.2d 616 (Michigan Court of Appeals, 1985)

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Bluebook (online)
378 N.W.2d 616, 145 Mich. App. 833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vance-v-ananich-michctapp-1985.