(Motion to Quash and Motion in Limine)

                           STATE OF MICHIGAN

                        STATE TENURE COMMISSION

MORRIS ABRAHAMS,

     Appellant

v                                                  Docket No. 81-3

BOARD OF EDUCATION OF THE

ANN ARBOR PUBLIC SCHOOLS,

    Appellee

Attorney for Appellant:  Arthur R. Przybylowicz

                         FOSTER, SWIFT, COLLINS AND COEY

                         313 South Washington Square

                         Lansing, Michigan 48933

                         Phone:  (517) 372-8050

Attorney for Appellee:   James E. Tobin

                         MILLER, CANFIELD, PADDOCK AND STONE

                         2500 Comerica Building

                         Detroit, Michigan 48226

                         Phone:  (313) 963-6420

                            DECISION AND ORDER

                              MOTION TO QUASH

                             MOTION IN LIMINE

BACKGROUND FACTS

         Appellant, a tenured teacher, was discharged by appellee board on  charges that he had engaged in unprofessional sexual conduct with several  female students.  Appellant appealed his discharge to this Commission and  his request for a private hearing before the full Commission was granted.   This Commission has held two days of hearing in this matter, and has  adjourned any further hearing until the present motions have been decided.

         Appellant subpoenaed the students involved in the alleged  incidents pursuant to our July 30, 1982 decision and order which was  affirmed by the Washtenaw Circuit Court (Docket No. 82-23833-AA, August 7,  1985).  Petitioner, Denise Michelle Gould Hatto, is one of appellant's  former students who has been subpoenaed to testify in this case.  She  failed to appear at the October 31, 1986 hearing as ordered by this  Commission's subpoena.1  Appellant then obtained a subpoena through the  Ingham County Circuit Court ordering Mrs. Hatto to appear at the Commission's January 26, 1987 hearing.  Mrs. Hatto again failed to appear  and, consequently, the hearing had to be adjourned.2

         Appellant sought enforcement of the subpoena in the Circuit Court,  which ordered Mrs. Hatto to appear at the March 6, 1987 hearing.   Petitioner subsequently filed the instant motions and appellant has filed a  response.  At the March 6, 1987 hearing, the Commission heard oral argument  on the motions by the attorneys for petitioner, appellant and appellee.

ISSUE

         Should petitioner's motions be granted?

DISCUSSION

         In support of her motions, petitioner contends that appellant's  action in subpoenaing her constitutes an abuse of process and harassment.   She claims that she can give no testimony which would help appellant and  that appellant has not even suggested that her testimony would have any  impact on the outcome of appellant's case.  Moreover, petitioner argues  that appellant had the opportunity to confront and cross-examine her at the  local hearing and she has no new testimony at this point.  Petitioner also  alleges that ordering her to testify would be physically and  psychologically harmful to her, and would place her and her family at risk  of harm by appellant or his family.

         Petitioner's arguments that appellant has already been provided an  opportunity to confront and cross-examine her and that she has no new  testimony to present at this time are contentions that we previously have  considered in appellee's earlier motion to deny issuance of subpoenas to  appellant for student witnesses.  In our decision and order on that motion  we considered similar arguments by appellee and concluded that appellant should be allowed to subpoena the student witnesses.  In arriving at that  decision, we discussed our de novo review function and explained that we  are required to hear a case as though it were an original proceeding upon  evidence introduced before us.  Abrahams v Board of Education of the Ann  Arbor Public Schools (81-3) (motions decision July 30, 1982) pp 5-7.   Specifically, we held that our authority to provide a de novo hearing  affords either party the opportunity to reexamine witnesses who already  have testified before the controlling board.  We found that this  opportunity is particularly important where, as here, the credibility and  demeanor of the witnesses will play a substantial role in our resolution of  the factual questions presented.  Our decision was affirmed by the  Washtenaw Circuit Court (Docket No. 82-23833-AA, August 7, 1985). 

         We continue to believe that resolution of appellant's case is  dependent upon a determination of credibility of the student witnesses and   that this is the basis for appellant's subpoenaing of petitioner.  (March 6, 1987 Tr, pp 17, 19).  Further, our responsibility to arrive at an  independent determination requires that we allow appellant the opportunity  to present evidence involving credibility of the complaining witnesses.   We, therefore, conclude there are legitimate reasons underlying the  subpoena involved here, and that harassment of petitioner is not the basis  for its issuance. 

         We also have given serious consideration to petitioner's  allegations of possible physical harm to her or her family, and of possible  psychological harm to her should she again be required to testify.  While  we are sympathetic to petitioner's claims in this regard, we do not find  that they constitute a sufficient basis to excuse her attendance at  appellant's hearing.  Our research on this subject indicates that the duty to testify is an indispensible element of our system of justice with  only limited exceptions.  United States v Euge, 444 US 707; 100 S Ct 874;  63 L Ed 2d 141 (1980); United States v Bryan, 339 US 323, 331; 70 S Ct 724;  94 L Ed 884 (1949); Blair v United States, 250 US 273, 281; 39 S Ct 468; 63  L Ed 979 (1919); 8 Wigmore, Evidence, Section 2192, pp 70-73 (McNaughton  rev. 1961); 97 CJS, Witnesses, Section 2, pp 350-351, Section 14, pp 361-362; 81 Am Jur 2d, Witnesses, Section 5, pp 30-31, Section 28, pp 52-53.  

          "For more than three centuries it has now been recognized as a fundamental maxim that the public...has a right to every man's evidence."  Wigmore, supra at 70.

          "[P]ersons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to the public interest... We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned."  United States v Bryan, supra at 331.

          "The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public."  Blair v United States, supra at 281.

          "The duty to testify is a basic obligation  that every citizen owes his government, and any personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public."  81 Am Jur 2d, Witnesses, Section 28, p 52 (footnotes  omitted).   

         A motion to quash a subpoena should be granted only on a very  clear showing of the right thereto, and a subpoena will not be stricken  down unless it substantially violates constitutional rights.  97 CJS,  Witnesses, Section 19, p 370.  The only exemptions recognized are those  "grounded in a substantial individual interest which ha[ve] been found, through centuries of experience, to outweigh the public interest in the  search for the truth."  United States v Euge, supra at 879.  Examples  include a witness whose right against self-incrimination would be involved,  a chief executive of a state or nation, and a person serving in the  military during a time of war.3  97 CJS, Witnesses, Section 16, pp 363-365.   Moreover, the United States Supreme Court has held that a witness is not  excused from testifying because of fear of reprisal threatening his and his  family's lives, since every citizen owes to society the duty of giving  testimony.  Piemonte v United States, 367 US 556; 81 S Ct 1720; 6 L Ed 2d  1028 (1960); See also State v Jones, 363 So2d 455 (La 1978).

         We conclude that petitioner has not presented a sufficient basis  upon which to override her duty to testify in this case.  We, therefore,  must deny her motion to quash the subpoena.

         Next, we shall address petitioner's request to be examined outside  the presence of appellant.  An administrative adjudication of a contested  case involving an important interest such as the right to employment must  comply with present day standards of due process.  The Michigan Court of  Appeals has set forth the required standards in this type of case as  follows:

      " 'Rudimentary dueprocess' demands: (i) timely written notice detailing the reasons for proposed administrative action; (ii) an effective opportunity to defend by confronting any adverse witnesses and by being allowed to present in person witnesses, evidence, and arguments; (iii) a hearing examiner other than the individual who made the decision or determination under review; and (iv) a written, although relatively informal, statement of findings.  Goldberg v Kelley, [397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970)]; Wheeler v Montgomery, 397 US 280; 90 S Ct 1026; 25 L Ed 2d 307 (1970); Morrissey v Brewer, [408 US 471, 486; 92 S Ct 2593, 2603; 33 L Ed 2d 484, 497 (1972)]; and Gagnon v Scarpelli, 411 US 778, 786; 93 S Ct 1756, 1761-1762; 36 L Ed 2d 656, 664 (1973)."  Sponick v Detroit Police Dep't, 49 Mich App 162, 189; 211 NW2d 674 (1973);  Rochester Community Schools Board of Education v State Board of Education,  104 Mich App 569; 305 NW2d 541 (1981).

         As indicated above, the right to confrontation is one of the  elements of rudimentary due process which we are required to afford in the  present hearing.  We have not found, and petitioner has not cited, any case  law which permits the type of relief petitioner requests in her motion in  limine.  Recent cases involving child sex abuse have allowed concessions to  the right of confrontation by utilizing closed circuit cameras to transmit  the child's testimony to the defendant who is in a separate room,  See  People v Kaben,    Mich App     ; ____ NW2d ____ (Docket No 88702, rel'd  March 2, 1987) and the cases cited therein.  These cases, however, have  been limited to children of tender years and, even then, the courts have  been careful to protect confrontation rights as closely as possible.4  We  do not believe that we have the authority to extend the remedy afforded in  the child abuse cases to the present situation; nor do we find any support  for excluding appellant from the hearing room altogether, as petitioner  requests.  Hence, we must also deny petitioner's motion in limine.

CONCLUSION

         We conclude that petitioner's motion to quash the subpoena must be  denied.  We find that the reasons advanced by petitioner do not support  overriding her duty to give testimony in this case.  We further determine  that petitioner's motion in limine must be denied.  The Court of Appeals  has required that appellants be afforded the right to confrontation in  cases such as the one before us.

                                   ORDER

         We have read the record in this case, and for the above stated  reasons, we order the following:

         Petitioner's motion in limine and motion to quash are denied.

Anne T. Patton, Chairperson

Leonard M. Porterfield, Secretary

Wilbur L. Hass, Member

Patricia M. Montgomery, Member

Jon N. Schuster, Member

DATED:  March 24, 1987

FOOTNOTES

1  See Appellant's Ex. 2 which is a letter from Anne T. Patton, Chairperson of the State Tenure Commission authorizing substituted service on Mrs. Hatto.  See also Appellant's Ex 3 which is the proof of service.

2  See Appellant's Ex 4 which is the proof of personal service of the Circuit Court's subpoena.

3  In the first two examples, while the privilege involved may protect the person from being required to testify, it does not relieve him/her of the obligation to appear in answer to the subpoena.

4  In United States v Benfield, 593 F2d 815 (8th Cir 1979), a case involving an adult victim of a kidnapping, the victim was allowed to testify at a deposition by using a videotape because she was experiencing psychiatric problems directly relating to her abduction which resulted in her hospitalization and necessitated two trial continuances.  The defendant, without the victim's knowledge, monitored her deposition from a separate room and was allowed to confer with counsel during the questioning.  In that case, the court determined the defendant's right to confrontation had been violated.

This is a publication of the Michigan Department of Education. The written document, as issued, is the authoritative source of the content and format of the decision.