Ingham County Employees' Ass'n v. Ingham Circuit Court , 170 Mich. App. 118 ( 1988 )

170 Mich. App. 118 (1988) 428 N.W.2d 7

INGHAM COUNTY EMPLOYEES' ASSOCIATION
v.
INGHAM CIRCUIT COURT

Docket No. 101428.

Michigan Court of Appeals.

Decided May 5, 1988.

Hankins & Associates, P.C. (by Dan E. Hankins), for Alfred G. Johnson.

Cohl, Salstrom, Stoker & Aseltyne, P.C. (by Patrick A. Aseltyne), for defendants.

Before: GRIBBS, P.J., and BEASLEY and G.A. DRAIN,^[*] JJ.

PER CURIAM.

Plaintiff, Alfred G. Johnson, appeals as of right from a June 8, 1987, no cause judgment entered in favor of defendants, Ingham Circuit Court and Ingham Circuit Judge Michael G. Harrison. Plaintiff had challenged his termination from employment as a court stenographer as violative of both the court stenographer act^[1] and the Veterans' Preference Act.^[2]

Plaintiff was employed as a circuit court reporter for Ingham Circuit Court Judge Thomas L. Brown from about February, 1980, until April 8, 1983. During that time, plaintiff began to date a probationer of Judge Brown's court. The probationer had been convicted of welfare fraud. Plaintiff was the court reporter for her trial and sentencing. In the late summer of 1982, Judge Brown learned of the relationship. He advised plaintiff that the probationer was appealing her conviction. Judge Brown told plaintiff that he would not permit him to date the probationer and that plaintiff was not to see her further. Plaintiff agreed to stop seeing the probationer. He temporarily ended the relationship, but resumed it after about a month.

In March, 1983, Judge Brown discovered that plaintiff was again dating the probationer. Judge Brown confronted plaintiff, who explained that he had attempted to break off the relationship but failed. Plaintiff told Judge Brown that he wished to continue dating the probationer. Judge Brown advised plaintiff that his services were no longer necessary and that he was discharged effective April 8. Judge Brown advised Chief Judge Harrison of the matter, and Judge Harrison made plaintiff's termination official. A March 25, 1983, letter stated that plaintiff was discharged for insubordination.

On April 12, 1983, plaintiff applied for unemployment benefits. He was awarded benefits after an initial interview and defendants appealed. After various stages of review, the circuit court found that, because plaintiff violated the agreement made with Judge Brown, he had engaged in misconduct. The court reversed the award of benefits. This Court affirmed the trial court's decision.^[3]

On April 15, 1983, plaintiff filed a petition in the circuit court to have his termination rescinded. He also requested various public officials to hold a Veterans' Preference Act hearing. On August 12, 1987, the same judge who decided the MESC appeal conducted the Veterans' Preference Act and court stenographer statute hearing. In lieu of conducting a full hearing, the parties stipulated that the court could use plaintiff's MESC record. On May 8, 1987, the court found that plaintiff had engaged in both "misconduct" as defined under the court stenographer act and "official misconduct" as defined under the Veterans' Preference Act. The court entered the no cause judgment from which plaintiff now appeals.

Finally, on May 20, 1986, plaintiff filed suit in the United States District Court for the Western District of Michigan, bringing claims under the Veterans' Preference Act, the court stenographer act, 42 USC 1983, and US Const, Am I and Am XIV. On May 5, 1987, by stipulation of the parties, the case was dismissed with prejudice.

On appeal, plaintiff contends that he did not engage in "official misconduct" within the meaning of the Veterans' Preference Act.^[4] We see no relevant distinction between "misconduct," which disqualifies an individual from receiving unemployment benefits,^[5] and "official misconduct" under the Veterans' Preference Act. This Court, in the MESC appeal, has already affirmed the lower court's finding of misconduct, a finding which the parties fully litigated. Plaintiff may not relitigate the same issue.^[6]

The dismissal with prejudice of plaintiff's federal suit also bars this action.^[7] Because plaintiff's federal suit arose out of the same facts, its dismissal with prejudice amounts to an adjudication of the merits. This holds true even though plaintiff filed the federal suit after commencing the instant action.^[8]

Finally, plaintiff claims he is entitled to an award of back pay because he was denied a timely hearing under the Veterans' Preference Act. MCL 35.402; MSA 4.1222 entitles veterans removed from public employment to back pay only in situations where they are reinstated. We also are reluctant to award back pay in situations where a discharge is substantially proper but procedurally deficient.^[9] Because defendants discharged plaintiff for cause, he suffered no economic loss. An award of back pay would serve only to penalize defendants. The record reveals that the delay in holding a Veterans' Preference Act hearing resulted primarily from confusion over who would hold the rather unusual hearing.^[10] Under these circumstances, we do not believe an award of back pay would deter future procedural errors and are not inclined to award back pay.

Affirmed.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.

[1] MCL 600.1100 et seq.; MSA 27A.1101 et seq.

[2] MCL 35.401 et seq.; MSA 4.1221 et seq.

[3] Johnson v Ingham Co, unpublished opinion per curiam of the Court of Appeals, decided March 12, 1987 (Docket No. 84732).

[4] MCL 35.402; MSA 4.1222.

[5] MCL 421.29(1)(b); MSA 17.531(1)(b).

[6] Cogan v Cogan, 149 Mich. App. 375; 385 NW2d 793 (1986).

[7] Brownridge v Michigan Mutual Ins Co, 115 Mich. App. 745; 321 NW2d 798 (1982).

[8] Id., p 750.

[9] See Ferrario v Escanaba Bd of Ed, 426 Mich. 353; 395 NW2d 195 (1986).

[10] See Dillard v Wayne Co Prosecutor, 110 Mich. App. 310; 313 NW2d 106 (1981); Beadling v Governor of Michigan, 106 Mich. App. 530; 308 NW2d 269 (1981).