MICHAEL BROWN V CIVIL SERVICE COMMISSION
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL BROWN and JAMES WARREN,
UNPUBLISHED
February 24, 2004
Petitioners - Appellees,
v
No. 240428
Emmett Circuit Court
LC No. 00-005985-AA
CIVIL SERVICE COMMISSION,
Respondent,
and
BUREAU OF WORKERS’ & UNEMPLOYMENT
COMPENSATION,
Respondent-Appellant.
MICHAEL BROWN and JAMES WARREN,
Petitioners-Appellees,
v
No. 240429
Emmett Circuit Court
LC No. 00-005985-AA
CIVIL SERVICE COMMISSION,
Respondent-Appellant,
and
BUREAU OF WORKERS’ & UNEMPLOYMENT
COMPENSATION,
Respondent.
Before: Donofrio, P.J., and Griffin and Jansen, JJ.
PER CURIAM.
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Respondent Civil Service Commission and respondent Bureau of Workers’ &
Unemployment Compensation appeal by leave granted an order reversing a decision of the Civil
Service Commission regarding petitioners’ job reclassification entered by the circuit court. On
appeal respondents argue the circuit court did not have subject matter jurisdiction to hear the
appeal, that the circuit court misapplied the doctrine of promissory estoppel, and finally that the
circuit court exceeded its constitutional authority. On appeal, we find that the circuit court
lacked subject matter jurisdiction to hear petitioners’ appeal, and decline to reach the remaining
issues since the circuit court’s actions are void for want of subject matter jurisdiction. We
reverse the circuit court’s opinion and order.
Petitioners are employed by respondent Bureau of Workers’ and Unemployment
Compensation (formerly known as the Michigan Employment Security Commission and the
Michigan Unemployment Agency) (“the MUA”). In 1985, petitioner Brown accepted a position
as an auditor in an agency pilot project. Petitioner Warren joined the project in 1989. Petitioners
claimed that at the time they accepted these positions, the MUA promised them that their new
positions would be reclassified to a higher level by civil service in the future. However, the
MUA never asked civil service to reclassify the positions and discouraged petitioners from
taking steps to petition for reclassification. Petitioners finally did file individual petitions for
reclassification with the Department of Civil Service in November 1991. However, in
November 1992, a reorganization of the department led to the abolishment of their positions.
Petitioners apparently continue to work for the MUA, but in lower-classified positions.
After review, civil service staff declined to reclassify petitioners’ positions. Petitioners
appealed, and the Technical Hearing Officer (“THO”) Sylvia Elliott, reclassified their positions
to Unemployment Insurance (“UI”) Analyst VI. However, she failed to specify an effective date
for the reclassification or its duration. Petitioners sought clarification of the effective date of the
reallocation, and the Employment Relations Board remanded the case to the THO for a
determination of the unresolved timing issues.
On remand, THO Elliott designated November 1990 as the retroactive effective date of
the reclassifications because it was one year prior to the date petitioners filed their requests for
reclassification, and retroactive relief is limited to one year by civil service regulations although
she found that the evidence supported that petitioners had been performing at that level since
1988. THO Elliott also concluded that petitioners’ salaries should be “red-circled”, i.e., although
petitioners were now at a lower-paying classification, they should be paid at the reclassified UI
Analyst VI level until the pay of their current positions rose to that level. Petitioners appealed to
the Employment Relations Board and the Civil Service Commission, but each denied leave to
appeal.
Petitioners then sought circuit court review of the Employment Relations Board and Civil
Service Commission’s decision in April 1996. However, the initial petition named only the
Department of Civil Service and the MUA, and not the Civil Service Commission. In November
1996, the court remanded the matter to the THO “to consider estoppel and make findings of fact
and conclusions of law relative to estoppel, to determine if additional retroactive relief should be
granted, and whether or not respondents should be estopped from availing themselves of the oneyear limit and to determine the appropriate remedies to be afforded to Petitioners.” On remand,
THO Ruth Kahn determined that estoppel did apply to bar the MUA’s assertion of the one-year-
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back rule and ordered the date of petitioners’ reclassification to be made retroactive to their
respective original dates of hire.
Both the MUA and the Department of Civil Service appealed the decision to the
Employment Relations Board. The Employment Relations Board recommended that the THO’s
decision be reversed and the retroactive effect of the reclassification be limited to one year
stating that THO Kahn had abused her authority in exceeding the one year limitation and
reversed the reallocation. The Civil Service Commission adopted the recommendation of the
board and limited the retroactive effect of the reclassification to one year. The commission held
in part that because a THO has no equitable powers, THO Kahn lacked jurisdiction to apply
estoppel. It also reasoned that the circuit court, by virtue of the separation of powers doctrine,
was without authority to vest the THO with such powers. Even if THO’s had such powers, the
commission held that the MUA’s negligent or culpable conduct could not be used to undermine
the commission’s exercise of its authority because the Department of Civil Service and the MUA
are separate entities. Finally, the commission held that promissory estoppel was inapplicable
because the MUA never had the authority to implement the promised reclassifications.
Accordingly, the commission reversed the decision of THO Kahn and reinstated the one-year
limitation on retroactive reclassification. Petitioners appealed the decision to circuit court and
the circuit court reversed and reinstated the decision of THO Kahn.
Respondents argue that the circuit court lacked subject matter jurisdiction because when
petitioners first filed their petition for review in 1996, the Civil Service Commission was not
named as a respondent despite the fact that petitioners were challenging the commission’s
decision. Rather, the petition named only the Department of Civil Service and the MUA leaving
the commission not before the court.
A party may challenge subject matter jurisdiction at any time, including on appeal.
Therefore, this issue is preserved. Bass v Combs, 238 Mich App 16, 23; 604 NW2d 727 (1999).
Subject matter jurisdiction is a question of law we review de novo. Bass, supra, 238 Mich App
23.
MCL 24.304(1) requires that an application for review from an agency decision be filed
within sixty days of the date of the mailing of notice of the final appeal. Davis v Dep’t of
Corrections, 251 Mich App 372, 374; 651 NW2d 486 (2002). “Failure to file a timely claim of
appeal deprives the circuit court of jurisdiction to hear the appeal.” Id. at 375 citing Shippey v
Madison Dist Public Schools, 55 Mich App 663, 667; 223 NW2d 116 (1974); Schommer v
Director, Dep't of Natural Resources, 162 Mich App 110, 120-122; 412 NW2d 663 (1987);
Attorney General v Public Service Comm, 172 Mich App 778, 782; 432 NW2d 437 (1988); and
Schlega v Detroit Bd of Zoning Appeals, 147 Mich App 79, 82; 382 NW2d 737 (1985). “The
burden of establishing jurisdiction is with the petitioner.” Id. citing Citizens for Common Sense
in Government v Attorney General, 243 Mich App 43, 50; 620 NW2d 546 (2000).
Respondents cite Davis, supra, for the proposition that petitioners failed to vest the
circuit court with jurisdiction to hear their appeal in 1996 by failing to name the Civil Service
Commission as a respondent. In Davis, supra, the petitioner failed to name either the
commission or the Civil Service Department as respondents, and named only her employer, the
Department of Corrections, in the petition. Id. at 374. The Court held that the petitioner’s
belated amendment outside the sixty-day appeal period was ineffective for two reasons: first, the
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amendment was procedurally invalid where the applicable statute did not permit delayed appeals,
and second, the circuit court could not be vested with subject matter jurisdiction over the
commission’s decision by petitioner’s service of the amended petition on the department because
the Department of Civil Service and the Civil Service Commission are separate entities under
Const 1963, art 11, § 5. Id. at 375.
Petitioners’ 1996 petition for review named the Department of Civil Service and the
“Michigan Employment Security Commission,” petitioners’ employer, as respondents.
Petitioners admit in their brief on appeal that the Civil Service Commission was not listed as a
respondent, but was added some time later after the sixty day appeal period, in connection with
the second appeal following remand. The Davis Court explicitly stated that “failure to file a
timely claim against the Civil Service Commission deprived the court of subject matter
jurisdiction and was fatal to petitioner’s claim.” Davis, supra, 251 Mich App at 378. Because
Davis, supra, is binding precedent, and the circumstances almost identical, we apply the Davis
reasoning to the instant case and find the circuit court lacked jurisdiction to hear the 1996
petition.
When there is a lack of subject matter jurisdiction, a court’s actions are void. Altman v
Nelson, 197 Mich App 467, 473; 495 NW2d 826 (1992). Since the circuit court lacked subject
matter jurisdiction to hear this case, we decline to address the remaining issues raised on appeal.
Reversed.
/s/ Pat M. Donofrio
/s/ Richard Allen Griffin
/s/ Kathleen Jansen
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