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01/27/76 WARREN CONSOLIDATED SCHOOLS v. EMPLOYMENT

January 27, 1976

WARREN CONSOLIDATED SCHOOLS
v.
EMPLOYMENT RELATIONS COMMISSION



Appeal from Employment Relations Commission.

J. H. Gillis, P. J., and Quinn and R. E. Noble,* JJ.

SYLLABUS BY THE COURT

Administrative Law -- Employment Relations Commission -- Disqualification of Commissioner -- Court Rules.

A decision of the Michigan Employment Relations Commission must be vacated where one of the commissioners who participated in the decision is a brother and former law partner of the counsel for one of the parties to the dispute; the court rule which provides for automatic disqualification of a Judge should be analogously applied whether the proceeding is judicial or administrative (GCR 1963, 405.1[4]).

The opinion of the court was delivered by: Quinn

Complaint by Warren Consolidated Schools against the Warren Education Association charging unfair labor practices. The Michigan Employment Relations Commission ruled in favor of the Warren Education Association, and plaintiff appeals.

Plaintiff appeals from an adverse ruling by Michigan Employment Relations Commission (hereinafter MERC) in a proceeding instituted by plaintiff's complaint charging Warren Education Association with violation of MCLA 423.210(3)(c); MSA 17.455(10)(3)(c). Plaintiff states the first issue on appeal as:

1. Should the decision of the Michigan Employment Relations Commission be set aside for the reason that Commissioner William Ellmann, brother and former law partner of the attorney for the association, actively participated in the decision of this case in violation of acceptable standards of jurisprudence and in spite of appellant's request that he not participate in the case?

Our resolution of this first issue precludes consideration of the other two issues raised by this appeal.

If the proceedings here involved were judicial instead of administrative, there would be no question that Commissioner Ellmann was disqualified to participate in them, GCR 1963, 405.1(4). The object of this rule of absolute disqualification is more than a guarantee that a legal dispute will be resolved objectively by unbiased and impartial persons. It is also a shield against any suspicion on the part of the litigants and the public that any subjectivity, bias and partiality contributed to the outcome of the dispute. The thought behind such a rule was best expressed by Justice Frankfurter in Baker v Carr, 369 U.S. 186, 267; 82 S Ct 691, 737-738; 7 L Ed 2d 663, 714-715 (1962):

"The Court's authority -- possessed of neither the purse nor the sword -- ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, * * *."

We find attainment of what the rule seeks to accomplish impossible with brother arguing to brother whether the proceeding be judicial or administrative, and even where the only impropriety on the record is the fact that one brother participated in the decision of a controversy in which his brother was one of the advocates.

The decision of MERC is vacated and the cause is ...


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