Opinion
Docket No. 58420.
Decided May 2, 1977.
On application by plaintiff for leave to appeal the Supreme Court, in lieu of granting leave to appeal, reversed the decision of the Court of Appeals and remanded for further proceedings.
Schlussel, Lifton, Simon, Rands, Kaufman Lesinski for plaintiff.
Kermit G. Bailer, Corporation Counsel, and Carl Rashid, Jr., and Victor G. Marrocco, Assistants Corporation Counsel, for defendants.
The plaintiff has filed a delayed application for leave to appeal the Court of Appeals decision affirming the trial judge's dismissal of his complaint.
The plaintiff's position as an analyst for the controller's office for the City of Detroit was declared to be "vacant" by the Detroit Civil Service Commission unless he established residency in the city within 60 days. As a city civil service employee, the plaintiff was required to live within the city pursuant to Civil Service Commission Rule VII, § 2. The plaintiff contended that the commission's action was in fact a discharge and sued to enjoin enforcement of his discharge. He alleged that the commission did not have the authority to discharge him and that it failed to follow proper procedures. The trial judge denied his request for a temporary injunction and sua sponte dismissed the complaint.
The Court of Appeals reversed the dismissal, holding that the commission lacked authority to enforce the residency regulation. 48 Mich. App. 305; 210 N.W.2d 459 (1973). Holding that the commission had the authority to vacate the plaintiff's position for failure to fulfill the residency requirement, we reversed the Court of Appeals decision and affirmed the trial judge's decision. 392 Mich. 348; 220 N.W.2d 433 (1974). After rehearing, we modified our earlier decision and remanded to the Court of Appeals for further consideration in light of the fact that the plaintiff had made a special stipulation of nonresidency. 392 Mich. 348, 369; 224 N.W.2d 278 (1974).
The Court of Appeals found that there were no issues of fact to be resolved because the plaintiff had stipulated that he was a nonresident. A remand for a further hearing was said to be unnecessary because the ultimate fact was uncontested. 65 Mich. App. 380; 237 N.W.2d 477 (1975). We disagree. The stipulation of nonresidency was made only for purposes of the hearing on the temporary injunction. This facilitated resolution of the legal question concerning the commission's authority. As Judge BRONSON said, dissenting,
"[T]he trial court took this limited stipulation and used it as a basis for granting its own additional motion to dismiss the complaint. Although the trial judge ascribed motives of avoiding criminal prosecution to the limited nature of the stipulation, nothing in the record substantiates that view. I am not willing to allow the trial court to accept a limited stipulation and extend its legal effect beyond what was reasonably contemplated by the party making it. To do so would unduly inhibit the future use of a valuable procedural device at the trial court level." 65 Mich. App. 380, 394.
There was no admission of nonresidency for purposes of determining the sufficiency of the complaint and the trial judge erred in dismissing the complaint.
No evidence showing that the plaintiff was a nonresident was produced in the civil service proceedings. Due process of law requires that the determination of a disputed question of fact be based on evidence. Milford v People's Community Hospital Authority, 380 Mich. 49, 58; 155 N.W.2d 835 (1968), Napuche v Liquor Control Commission, 336 Mich. 398, 403; 58 N.W.2d 118 (1953). We remand to the circuit court with instructions to remand to the Civil Service Commission for a hearing to determine whether the plaintiff was a Detroit resident. The burden is on the Civil Service Commission to produce evidence in support of its allegation of nonresidence.
In lieu of leave to appeal, pursuant to GCR 853.2(4), we reverse the Court of Appeals and remand to the circuit court for further proceedings in conformity with this opinion.
KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, RYAN, and BLAIR MOODY, JR., JJ., concurred.
FITZGERALD, J., took no part in the decision of this case.