jurisdiction to review decisions made by administrative agencies
depends upon what constitutional or statutory provision applies.
Differences and apparent contradictions seem to appear in court
opinions discussing the standards of review for administrative decisions.
Administrative law practitioners should carefully preserve and forcefully
pursue appellate issues they present to minimize or avoid potentially
debilitating judicial delay.
law relates to the powers, functions, and procedures of the various administrative
agencies and the methods provided for judicial review of their decisions.’’1
As Professor Don LeDuc noted in his treatise, ‘‘Administrative Law
is not a unified or limited field like torts or contracts, nor is it simply
procedural in nature.’’2
In addition, certain aspects of the way Michigan courts treat administrative
law subjects reveal differences and apparent contradictions, which can
create confusion for practitioners in the area of administrative law.
In this context, it can become difficult to determine the likely outcome
of many issues in administrative law. In Const 1963, art 6, § 28, even
the people have demonstrated ambivalence toward administrative agency
adjudications—accepting the need for decision-making by administrative
agencies but not fully entrusting final decisions to administrative agencies.
An administrative agency has no inherent power. Any authority
agencies may have is vested in them by statute or by the constitution.
Administrative determinations are enforceable only in the manner provided
The power and authority to be exercised by administrative agencies must
be granted by clear and unmistakable statutory language since a doubtful
power does not exist, and an express grant of power is subject to a strict
But these limitations upon agency power are not self-executing and are
meaningless without the availability of appropriate judicial review.
In judicial opinions reviewing decisions by administrative agencies, much
duality or ambivalence can be found. Perhaps the relationship between
administrative agencies and Michigan courts is somewhat symbiotic. Courts
are satisfied to have this form of alternative dispute resolution available
but are wary of ceding too much legal independence. Agencies enjoy improvement
in public perception of fairness when their actions are affirmed but prefer
to avoid reversals. This article will survey some of the differences and
apparent contradictions in the context of three subjects: availability
of judicial review, standards for reviewing administrative decisions,
and judicial reluctance to review administrative appeals. The objectives
of this article are to provide updated information to practitioners regarding
these subjects and to present some rationales to reconcile some of the
apparent contradictions found in case law.
of Judicial Review
seeking judicial review of decisions by administrative agencies have three
potential avenues of relief: review prescribed in the statutes applicable
to the particular agency; appeal pursuant to MCL 600.631, which allows
appeals from such decisions to the circuit court; or the method of review
provided by the Administrative Procedures Act (APA), MCL 24.201.5
A lawyer should review each avenue in turn to determine where appellate
The legislature can restrict the right to judicial review of decisions
by administrative agencies so long as the restriction does not conflict
with Const 1963, art 6, § 28.7
That provision states in relevant part:
final decisions, findings, rulings and orders of any administrative
officer or agency existing under the constitution or by law, which are
judicial or quasi-judicial and affect private rights or licenses, shall
be subject to direct review by the courts as provided by law.
the case of a conflict between this constitutional provision and an applicable
statute, the constitutional provision would control.8
In summary, appellate jurisdiction to review decisions made by administrative
agencies depends upon what constitutional or statutory provision applies.
In addition, if no other constitutional or statutory provision for judicial
review applies, a practitioner might explore seeking judicial review via
superintending control under Const 1963, art 6, § 13.9
for Reviewing Administrative Decisions
goes beyond the purpose of this article to develop an exhaustive discussion
of all judicial statements on the scope of judicial review of administrative
decisions. But differences and apparent contradictions seem to appear
in court opinions discussing the standards of review.
Courts frequently adopt broad statements regarding the limitations on
judicial review. In one form or another, Michigan courts most frequently
describe limitations upon the standards of judicial review with statements
such as courts do not substitute their judgment for that of an administrative
agency, and a reviewing court gives deference to the expertise of administrative
From the viewpoint of any party seeking review of an agency’s decision,
the problem with these statements stems from hyperbole in the first statement
and a non-contextual understanding of the second statement. Extended logically,
the rule that courts do not substitute their decision for that of an agency
creates an oxymoron nullifying or frustrating the mandate for judicial
review, which can be found in either Const 1963, art 6, § 28 or any applicable
statute. If courts truly did not substitute their judgment for that of
an administrative agency, then judicial review would become an expensive
and meaningless process. What other justification can judicial review
have beside the possibility that an agency erred and should be reversed—substitution
of a judicial decision for an agency decision? On the other hand, the
so-called deference rule implies that judicial deference to an agency’s
expertise should be automatic with little regard for the nature of the
issue involved or its context. Thus, the substitution rule and the deference
rule warrant further evaluation.
Const 1963, art 6, § 28 addresses not merely the availability of judicial
review, it also states the following standards for judicial review:
review shall include, as a minimum, the determination whether such final
decisions, findings, rulings and orders are authorized by law; and,
in cases in which a hearing is required, whether the same are supported
by competent, material and substantial evidence on the whole record.
Findings of fact in workmen’s compensation proceedings shall be conclusive
in the absence of fraud unless otherwise provided by law.
determining the meaning of constitutional provisions like this, courts
consider the constitutional convention debates.10
Const 1963, art 6, § 28 is a new constitutional provision which arose
out of Constitutional Committee Proposal 95.11
The purpose of adopting this new constitutional provision was to protect
the public from abuse of administrative power and to provide a safeguard
against bureaucratic action by administrative agencies. Although the delegates
concluded that the legislature would have the power to adopt even higher
standards for judicial scrutiny of decisions by administrative agencies,
the goal was to set a uniform minimum standard for judicial review of
decisions made by administrative agencies. The level of the appropriate
minimum standards was vigorously debated.12
With regard to fact questions, Const 1963, art 6, § 28 is designed to
avoid making findings of fact conclusive13
and is intended to avoid judicial affirmance of administrative decisions
based upon the ‘‘scintilla’’ rule under which only a tiny bit of evidence
would be sufficient to affirm the decision of an administrative agency.
On the other hand, constitutional delegates expressed a fear that adopting
a new constitutional provision would lead to de novo judicial review of
fact questions; thus, Const 1963, art 6 § 28 is intended only to require
a review of the record made before the administrative agency and not to
provide for a new hearing. Final convention action determined that the
standards for review would be whether or not administrative decisions
‘‘are authorized by law’’ and whether or not decisions ‘‘are supported
by competent, material and substantial evidence on the whole record’’
when a hearing is required.14
In other words, Const 1963, art 6, § 28 creates two separate standards
for judicial review.
Since 1963, the Michigan Supreme Court has interpreted Const 1963, art
6, § 28 and has said with regard to fact questions that Const 1963, art
6, § 28 requires Michigan courts to consider both sides of the record,
and therefore, has said that judicial review must necessarily entail a
degree of qualitative and quantitative evaluation of the evidence considered
by an agency.15
On the other hand, with regard to legal questions, the Michigan Supreme
Court has ruled that the standard for judicial review is de novo review.16
Despite these Supreme Court opinions regarding standards for judicial
review, confusion or contradictions have arisen in reviewing agency fact-finding
decisions as well as in the context of reviewing agency decisions regarding
questions of law. Based on the constitution and Michigan Supreme Court
precedent cited above, one needs to question or, at least, reconsider,
the ‘‘substitution’’ and ‘‘deference’’ standards for judicial review that
have been routinely relied upon in many Michigan Court of Appealsopinions.
Opinions frequently state the substitution and deference rules in an abstract,
virtually absolute form such as:
reviewing court must give due deference to the administrative expertise
of [an agency] and may not substitute its judgment for that of the agency.17
a virtually absolute form of the standards limiting judicial review evidences
an approach to judicial review that, at best, backs away from the courts’
constitutional and statutory duty to conduct appellate review. For legal
questions, this formulation eschews the de novo standard of review. For
facts questions, a more valid and reasonable statement of the substitution
rule would be to say that a court will substitute its opinion or judgment
for that of an administrative agency only when there is competent, conflicting
Such a statement of the rule is more akin to the constitutionally adopted
standard, which requires support by competent, material, and substantial
evidence on the whole record. In any event, neither the constitution nor
the statutes governing appeals preclude substitution of judicial judgment
for that of an administrative agency. Instead, constitutional and statutory
standards for judicial review concern when and how much a court will undertake
to substitute its judgment for that of an agency decision.19
summary, by adopting broad limits upon the standards for judicial review,
Michigan court opinions sometimes seem overeager to abstain from the appellate
duties imposed upon them by Const 1963, art 6, § 28 and applicable statutes.
For fact questions, it might be appropriate to defer to an agency’s choice
between conflicting evidence, but even then there should be some qualitative
and quantitative evaluation of the evidence considered by an agency.20
The more significant confusion arises when Michigan court opinions address
questions of law. On the one hand, the Supreme Court has ruled that legal
questions decided by administrative agencies are subject to de novo review.21
On the other hand, the Supreme Court has ruled that a construction given
to a statute by an agency is always entitled to the most respectful consideration
and ought not be overruled without cogent reasons.22
But judicial deference does not preclude a court from rejecting an agency’s
Even if a reviewing court gives deference to the expertise of administrative
agencies, courts must not abandon or delegate their responsibility to
interpret legislative intent.24
In other words, Michigan courts can always review an agency’s legal findings,
and agency interpretations are not binding even though courts afford an
agency’s interpretation some deference.25
In 1999, the Michigan Supreme Court affirmed previous rulings that
an agency’s determination regarding the scope of its authority is a question
of law, which is reviewed de novo,26
and that questions of statutory interpretation are questions of law, which
are reviewed de novo.27
1963, art 3, § 2 and its predecessors require the separation of the powers
of the executive, judicial, and legislative branches of government. A
historical review of the constitutional doctrine concerning separation
of powers supports de novo review of legal questions. Justice Marshall
said in Marbury v Madison, 5 US 137, 177–178; 2 L Ed 60, 73 (1803),
“It is emphatically the province and duty of the judicial department to
say what the law is.”28
As the Michigan Supreme Court once explained:
hardly supposed that anyone doubted that the construction of a statute
or ordinance is a matter of law and not of fact. This is a well-recognized
judicial function. It is the duty of courts to construe the language
of the statute and while ‘‘the construction given to a statute by those
charged with the duty of executing it is always entitled to the most
respectful consideration and ought not to be overruled without cogent
reasons,’’ such construction is not binding upon the courts.29
1940, the Supreme Court was urged to adopt an interpretation of the veteran’s
preference act adopted by several governors, but the court said:
have great respect for the opinion of all of our governors and will
take notice of a construction given in the administration of doubtful
or obscure laws by officers with a duty to perform thereunder, but in
the final analysis the construction of a statute still remains in the
judicial branch of our government.30
the court has ruled that administrative interpretations must be rejected
if not in accord with the intent of the legislature.31
Finally, the Michigan Supreme Court has said that it is the responsibility
of the judiciary to interpret legislative intent and that this responsibility
cannot be delegated.32
federal precedent differs in many significant ways (beyond the scope of
this article) from Michigan precedent, it is interesting to note that
the United States Supreme Court has recently recognized that even when
judicial deference may be appropriate during judicial review of legal
questions decided by an administrative agency, deference is limited:
fair measure of deference to an agency administering its own statute
has been understood to vary with circumstances, and courts have looked
to the degree of the agency’s care, its consistency, formality, and
relative expertness, and to the persuasiveness of the agency’s position,....This
approach has produced a spectrum of judicial responses, from great respect
at one end,...to near indifference at the other.33
summary, courts have frequently stated that they must defer to statutory
interpretations adopted by administrative agencies, but such deference
should be more limited than many court opinions seem to imply. Under the
separation of powers doctrine, statutory construction belongs within the
province of the courts, and courts should perform a de novo review of
Reluctance to Review Administrative Law Appeals
though there is little question that rulings by administrative agencies
are subject to judicial review, as a pragmatic matter administrative law
practitioners should take into account one other factor. Courts truly
prefer to avoid reviewing administrative agency decisions, and this factor
can subtly affect the outcome of appellate review.
The potential results of judicial aversion to reviewing the merits of
appeals from administrative agency decisions can be illustrated by events
that occurred during one appeal the author participated in. In late 1996
and early 1997, the Michigan Public Service Commission issued some procedural
orders in a power supply cost recovery plan case involving the Detroit
Edison Company. On February 25, 1997, three parties to the administrative
proceeding filed a joint petition for interlocutory review by the Ingham
County Circuit Court of those commission orders. The appeal was filed
in the circuit court because, in numerous previously unpublished orders,
the Ingham Circuit Court and the Court of Appeals had disagreed over whether
appellate jurisdiction rested in the Court of Appeals under MCL 462.26
or in the Ingham County Circuit Court under MCL 24.301. Certainly this
jurisdictional question has been a significant one, but the conflicting
orders of the two courts reveal that each court has a desire to have the
other court handle these appeals.
On motion by the Public Service Commission, the Ingham Circuit Court transferred
the appeal to the Court of Appeals under MCL 462.26(3). The Court of Appeals,
without request from a party, remanded the case to the circuit court.
The Public Service Commission appealed the remand order, and the Supreme
Court summarily vacated the Court of Appeals remand order and sent the
case back for a plenary decision concerning the appellate jurisdiction
After remand for plenary consideration, the appellants and the appellees
filed briefs with the Court of Appeals. Although there were differences
in their briefs, all parties agreed that jurisdiction belonged with the
Court of Appeals. Two years later, the Court of Appeals issued an opinion
remanding the case and finding that jurisdiction lies in the Ingham County
The joint appellants and the Public Service Commission separately sought
leave to appeal, but with two justices dissenting, the Supreme Court denied
leave to appeal in 2000.36
this case, the appellate process foundered on the issue of appellate jurisdiction.
The underlying merits of the commission’s procedural orders remained unreviewed
for years until time rendered those serious legal questions moot for purposes
of the case. Administrative law practitioners should carefully preserve
and forcefully pursue appellate issues they present to minimize or avoid
potentially debilitating judicial delay, which can arise from a reluctance
of Michigan courts to be the court to conduct substantive judicial review
of administrative agency decisions.
attorney can play a pivotal role in determining the outcome of an administrative
law case by being aware of how Michigan courts address and resolve questions
concerning the avenues for appellate review and the standards for judicial
review. When planning litigation strategy, an attorney should also remember
the potential, self-centered reasons an agency or a reviewing court might
have to rely upon a process or standards for judicial review that can
frustrate attempts to obtain a judicial decision on the merits of factual
or legal questions raised in administrative proceedings.
1. Stein et al., Administrative
Law, § 1.01(1), p 1–3.
2. LeDuc, Michigan Administrative
Law, Preface, p iv.
3. Belanger & Sons, Inc
v Department of State, 176 Mich App 59, 62–63; 438 NW2d 885 (1989).
4. Mason County Civil Research
Council v Mason County, 343 Mich 313, 326–327; 72 NW2d 292 (1955).
5. Nestell v Bridgeport-Spaulding
Community Schools Bd of Ed, 138 Mich App 401, 404; 360 NW2d 200 (1984),
and Living Alternatives for Developmentally Disabled Inc v Department
of Mental Health, 207 Mich App 482, 484; 525 NW2d 466 (1994).
6. Martin v Stine, 214
Mich App 403, 408–411; 542 NW2d 884 (1995). See also, Sullivan v PSC,
93 Mich App 391, 395; 287 NW2d 188 (1978), and Greenfield Constr
Co v Dep’t of State Highways, 58 Mich App 49, 57; 227 NW2d 223 (1975)
aff’d 402 Mich 172 (1978).
7. Martin, supra, at 414,
and Taylor v Secretary of State, 216 Mich App 333, 338; 548 NW2d
8. C F Smith Co v Fitzgerald,
270 Mich 659, 667; 259 NW 352 (1935), and The Detroit Edison Co
v PSC, 82 Mich App 59, 72–73; 266 NW2d 665 (1978).
9. Rental Property Owners Ass’n
of Kent County v Grand Rapids, 455 Mich 246, 269; 566 NW2d 514, 524
10. Burdick v Secretary of
State, 373 Mich 578, 584; 130 NW2d 380 (1964).
11. 1 Official Record, Constitutional
12. 1 Official Record, Constitutional
Convention 1961, pp 1440–1452, 1463–1478 and 1483–1487 and 2 Official
Record, Constitutional Convention 1961, pp 2191 and 2712–2720.
13. 1 Official Record, Constitutional
14. 2 Official Record, Constitutional
Convention 1961, p 2714.
15. Michigan Employment Relations
Comm’n v Detroit Symphony Orchestra Inc, 393 Mich 116, 124; 223 NW2d
283 (1974). Accord, Midland Twp v State Boundary Comm’n, 401 Mich
641, 672–673; 259 NW2d 326 (1977), Ferrario v Escanaba Bd of Educ,
426 Mich 353, 367; 395 NW2d 195 (1986), and Goff v Bil-Mar Foods Inc
(After Remand), 454 Mich 507, 514–517; 563 NW2d 214 (1997).
16. Cardinal Mooney High
School v MHSAA, 437 Mich 75, 80; 467 NW2d 21 (1991), and Oakland
County v Michigan, 456 Mich 144, 149; 566 NW2d 616 (1997).
17. Attorney General v PSC,
231 Mich App 76,78; 585 NW2d 310 (1998). Accord, Attorney General
v PSC, 235 Mich App 308, 313; 597 NW2d 264 (1999), and Residential
Ratepayer Consortium v PSC, 239 Mich App 1, 3; 607 NW2d 391 (1999).
18. Giaras v MPSC, 301
Mich 262, 269; 3 NW2d 268 (1942), and In re 1987–88 Medical Doctor
Provider Class Plan, 203 Mich App 707, 729; 514 NW2d 471 (1994).
19. Department of Civil Rights
ex rel Johnson v Silver Dollar Cafe, 441 Mich 110, 120; 490 NW2d 337
20. Michigan Employment Relations
Comm’n, supra, at 124.
21. See cases cited in footnote
22. Magreta v Ambassador
Steel Co (On Rehearing), 380 Mich 513, 519; 158 NW2d 473 (1968), and
-reuhan v Plymouth-Canton Community Schools, 425 Mich 278, 282–283
; 389 NW2d 85 (1986).
23. Manufacturers Bank v
Department of Natural Resources, 420 Mich 128, 148; 362 NW2d 572 (1984),
and Davis v River Rouge Bd of Educ, 406 Mich 486, 490; 280 NW2d
24. Miller Bros v PSC, 180
Mich App 227, 232; 446 NW2d 640 (1989), and In re Complaint of MCTA,
241 Mich App 344, 360; 615 NW2d 255 (2000).
25. Ludington Svc Corp v
Acting Comm’r of Ins, 444 Mich 481, 503–505; 511 NW2d 661 (1994).
26. Consumers Power Co v
PSC, 460 Mich 148, 157; 596 NW2d 126 (1999).
27. In re MCI Telecommunications
Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999).
28. Accord, In re Del Rio,
400 Mich 665, 726; 256 NW2d 727 (1977).
29. Paye v Grosse Pointe,
279 Mich 254, 259–260; 271 NW 826 (1937) (citation omitted).
30. Kelly v Secretary of
State, 293 Mich 530, 533; 292 NW 479 (1940).
31. Howard Pore Inc v State
Comm’r of Revenue, 322 Mich 49, 66; 33 NW2d 657 (1948).
32. General Motors Corp v
Erves, 395 Mich 604, 621; 236 NW2d 432 (1975).
33. United States v Mead
Corp, ___ US ___; 121 S Ct 2164, ___; ___ L Ed 3d ___ (2001) (footnotes
and citations omitted).
34. Attorney General v PSC,
456 Mich 882 (1997).
35. Attorney General v PSC,
237 Mich App 24; 602 NW2d 207 (1999).
36. Attorney General v PSC
No. 1, 462 Mich 878 (2000).