agency rule in Michigan

2022MCL 24.263 provides, in relevant part, “[o]n request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency.” “[T]he term ‘may’ presupposes discretion and does not mandate an action.” In re Weber Estate, 257 Mich App 558, 562 ; 669 NW2d 288 (2003).

2022MCL 24.263 provides, in relevant part, “[o]n request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency.” “[T]he term ‘may’ presupposes discretion and does not mandate an action.” In re Weber Estate, 257 Mich App 558, 562 ; 669 NW2d 288 (2003).

1985See General Motors Corp v Bureau of Safety & Regulation, 133 Mich App 284, 292 ; 349 NW2d 157 (1984); Johnston v Billot, 109 Mich App 578, 589 ; 311 NW2d 808 (1981), lv den 414 Mich 955 (1982).

1984Johnston v Billot, supra. Only where the agency rule is ambiguous should a reviewing court apply a reasonable construction which attempts to accomplish the purpose of the agency rule. 109 Mich App 589 -590.

2026The distinction can be very easy to miss. 5 One concerns the application of a statute, rule, or order to a specific state of facts (MCL 24.263); the other concerns the impact of rules only (MCL 24.264). 5 We cited two Court of Appeals cases in our oral argument order—Huron Valley Sch, 266 Mich App at 646 , and Citizens for Common Sense in Gov’t, 243 Mich App at 51—both of which applied MCL 24.264 to parties seeking a declaration regarding the applicability of a statute.

2026The distinction can be very easy to miss. 5 One concerns the application of a statute, rule, or order to a specific state of facts (MCL 24.263); the other concerns the impact of rules only (MCL 24.264). 5 We cited two Court of Appeals cases in our oral argument order—Huron Valley Sch, 266 Mich App at 646 , and Citizens for Common Sense in Gov’t, 243 Mich App at 51—both of which applied MCL 24.264 to parties seeking a declaration regarding the applicability of a statute.

2021In regard to Michigan administrative agencies, MCL 24.263 provides that an interested person may request “a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order 2 “Caselaw from sister states and federal courts is not binding precedent but may be relied on for its persuasive value.” Id. at slip op 5 n 5. -9- of the agency.” Such a declaratory ruling would be binding on the agency and person requesting it, but the “ruling is subject to judicial review in the same manner as an agency final decision or order in a conte

2020We find it interesting that the three-part test, when it is traced back to its origin, including through Supreme Court rulings, comes from this Court’s opinion in Chesapeake & Ohio R Co v Mich Pub Serv Comm’n, 59 Mich App 88, 98-99 ; 228 NW2d 843 (1975), which cited nothing in support of the test.

2020We find it interesting that the three-part test, when it is traced back to its origin, including through Supreme Court rulings, comes from this Court’s opinion in Chesapeake & Ohio R Co v Mich Pub Serv Comm’n, 59 Mich App 88, 98-99 ; 228 NW2d 843 (1975), which cited nothing in support of the test.

2016Further, the agency exception under the SBTA does not apply in this case because gross receipts do include “amounts received by persons having the power or authority to expend or otherwise appropriate such amounts in payment for or in consideration of sales or services made or rendered by themselves or by others acting under their direction and control . . . .” Id. at 268 , quoting MCL 208.7(3).

2008MCL 24.263 controls requests for declaratory rulings from agencies and provides that “[o]n request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency.” (Emphasis added.) In this regard, I agree with Michigan Ass’n of Home Builders v Director of Dep’t of Labor & Economic Growth, 276 Mich App 467, 480-481 ; 741 NW2d 531 (2007) , vacated in part on other grounds 481 Mich 496 (2008) , in that [a] plain reading of MCL 24.263 requires that an interested perso

2008MCL 24.263 controls requests for declaratory rulings from agencies and provides that “[o]n request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency.” (Emphasis added.) In this regard, I agree with Michigan Ass’n of Home Builders v Director of Dep’t of Labor & Economic Growth, 276 Mich App 467, 480-481 ; 741 NW2d 531 (2007) , vacated in part on other grounds 481 Mich 496 (2008) , in that [a] plain reading of MCL 24.263 requires that an interested perso

2008MCL 24.263 controls requests for declaratory rulings from agencies and provides that "[o]n request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency." (Emphasis added.) In this regard, I agree with Michigan Ass'n of Home Builders v. Director of Dep't of Labor & Economic Growth, 276 Mich.App. 467, 480-481 , 741 N.W.2d 531 (2007), vacated in part on other grounds 481 Mich. 496 , 750 N.W.2d 593 (2008), in that [a] plain reading of MCL 24.263 requires that

2008MCL 24.263 controls requests for declaratory rulings from agencies and provides that “[o]n request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency.” (Emphasis added.) In this regard, I agree with Michigan Ass’n of Home Builders v Director of Dep’t of Labor & Economic Growth, 276 Mich App 467, 480-481 ; 741 NW2d 531 (2007) , vacated in part on other grounds 481 Mich 496 (2008) , in that [a] plain reading of MCL 24.263 requires that an interested perso

2008MCL 24.263 controls requests for declaratory rulings from agencies and provides that "[o]n request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency." (Emphasis added.) In this regard, I agree with Michigan Ass'n of Home Builders v. Director of Dep't of Labor & Economic Growth, 276 Mich.App. 467, 480-481 , 741 N.W.2d 531 (2007), vacated in part on other grounds 481 Mich. 496 , 750 N.W.2d 593 (2008), in that [a] plain reading of MCL 24.263 requires that

2002This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined.” [Quoting Far East Conference v United States, 342 US 570, 574 ; 72 S Ct 492 ; 96 L Ed 2d 576 (1952).] To that end, “whether judicial review will be postponed in favor of the primary jurisdiction of an administrative agency ‘necessarily depends upon the agency rule at issue and the nature of the declaration being sought in the particular case.’ ” Travelers, supra at 198 , quoting Baron, Judicial review of administrative agency rules: A qu

2002This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined.” [Quoting Far East Conference v United States, 342 US 570, 574 ; 72 S Ct 492 ; 96 L Ed 2d 576 (1952).] To that end, “whether judicial review will be postponed in favor of the primary jurisdiction of an administrative agency ‘necessarily depends upon the agency rule at issue and the nature of the declaration being sought in the particular case.’ ” Travelers, supra at 198 , quoting Baron, Judicial review of administrative agency rules: A qu

2002This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined.” [Quoting Far East Conference v United States, 342 US 570, 574 ; 72 S Ct 492 ; 96 L Ed 2d 576 (1952).] To that end, “whether judicial review will be postponed in favor of the primary jurisdiction of an administrative agency ‘necessarily depends upon the agency rule at issue and the nature of the declaration being sought in the particular case.’ ” Travelers, supra at 198 , quoting Baron, Judicial review of administrative agency rules: A qu

1998Arguing that a refund is contrary to the United States Supreme Court decision in McKesson Corp v Division of Alcoholic Beverages & Tobacco, 496 US 18 ; 110 S Ct 2238 ; 110 L Ed 2d 17 (1990), the state requests the remedy be limited to prospective relief commencing at the time of “any final appellate decision” on the issue.

1998Arguing that a refund is contrary to the United States Supreme Court decision in McKesson Corp v Division of Alcoholic Beverages & Tobacco, 496 US 18 ; 110 S Ct 2238 ; 110 L Ed 2d 17 (1990), the state requests the remedy be limited to prospective relief commencing at the time of “any final appellate decision” on the issue.

1998See Goins v Greenfield Jeep Eagle, Inc, 449 Mich 1, 7-10 ; 534 NW2d 467 (1995) (failure to comply with statutory procedural requirements renders rule invalid); Luttrell v Dep’t of Corrections, 421 Mich 93, 100 ; 365 NW2d 74 (1984) (whether an agency rule is substantively valid depends on whether the subject matter is within the matter covered by the agency’s enabling statute, whether it complies with underlying legislative intent, and, if it meets both, whether it is arbitrary or capricious); see also Michigan State AFL-CIO v Secretary of State, 230 Mich App 1 ; 583 NW2d 701 (1998) (emergency

1998See Goins v Greenfield Jeep Eagle, Inc, 449 Mich 1, 7-10 ; 534 NW2d 467 (1995) (failure to comply with statutory procedural requirements renders rule invalid); Luttrell v Dep’t of Corrections, 421 Mich 93, 100 ; 365 NW2d 74 (1984) (whether an agency rule is substantively valid depends on whether the subject matter is within the matter covered by the agency’s enabling statute, whether it complies with underlying legislative intent, and, if it meets both, whether it is arbitrary or capricious); see also Michigan State AFL-CIO v Secretary of State, 230 Mich App 1 ; 583 NW2d 701 (1998) (emergency

1991Delly v Bureau of State Lottery, 183 Mich App 258, 263 ; 454 NW2d 141 (1990).

1991Delly v Bureau of State Lottery, 183 Mich App 258, 263 ; 454 NW2d 141 (1990).

1990See Kassab v Acho, 150 Mich App 104 , *264 109; 388 NW2d 263 (1986), lv den 426 Mich 862 (1986); Kelly Downs, Inc v Racing Comm, 60 Mich App 539, 546-547 ; 231 NW2d 443 (1975).

1990See Kassab v Acho, 150 Mich App 104 , *264 109; 388 NW2d 263 (1986), lv den 426 Mich 862 (1986); Kelly Downs, Inc v Racing Comm, 60 Mich App 539, 546-547 ; 231 NW2d 443 (1975).

1988Since judicial review of a final agency decision is limited to the record, and, as in Human Rights Party, supra, there is no record of the agency decision here, it may be necessary for the circuit court to remand this case back to the agency for a hearing.

1987Cf. Fletcher Paper Co v Detroit & M R Co, 198 Mich 469 ; 164 NW 528 (1917) , aff'd 248 US 30 ; 39 S Ct 13 ; 63 L Ed 107 (1918) ; Gorham Brothers Co v Ann Arbor R Co, 228 Mich 273, 284 ; 200 NW 287 (1924).

1987Cf. Fletcher Paper Co v Detroit & M R Co, 198 Mich 469 ; 164 NW 528 (1917) , aff'd 248 US 30 ; 39 S Ct 13 ; 63 L Ed 107 (1918) ; Gorham Brothers Co v Ann Arbor R Co, 228 Mich 273, 284 ; 200 NW 287 (1924).

1987Cf. Fletcher Paper Co v Detroit & M R Co, 198 Mich 469 ; 164 NW 528 (1917) , aff'd 248 US 30 ; 39 S Ct 13 ; 63 L Ed 107 (1918) ; Gorham Brothers Co v Ann Arbor R Co, 228 Mich 273, 284 ; 200 NW 287 (1924).

1987Cf. Fletcher Paper Co v Detroit & M R Co, 198 Mich 469 ; 164 NW 528 (1917) , aff'd 248 US 30 ; 39 S Ct 13 ; 63 L Ed 107 (1918) ; Gorham Brothers Co v Ann Arbor R Co, 228 Mich 273, 284 ; 200 NW 287 (1924).

1987Cf. Fletcher Paper Co v Detroit & M R Co, 198 Mich 469 ; 164 NW 528 (1917) , aff'd 248 US 30 ; 39 S Ct 13 ; 63 L Ed 107 (1918) ; Gorham Brothers Co v Ann Arbor R Co, 228 Mich 273, 284 ; 200 NW 287 (1924).

1987Cf. Fletcher Paper Co v Detroit & M R Co, 198 Mich 469 ; 164 NW 528 (1917) , aff'd 248 US 30 ; 39 S Ct 13 ; 63 L Ed 107 (1918) ; Gorham Brothers Co v Ann Arbor R Co, 228 Mich 273, 284 ; 200 NW 287 (1924).

1987Cf. Fletcher Paper Co v Detroit & M R Co, 198 Mich 469 ; 164 NW 528 (1917) , aff'd 248 US 30 ; 39 S Ct 13 ; 63 L Ed 107 (1918) ; Gorham Brothers Co v Ann Arbor R Co, 228 Mich 273, 284 ; 200 NW 287 (1924).

1985In Longo v McIlmurray, 115 Mich App 479, 485 ; 321 NW2d 701 (1982), this Court explained: "Where there is ambiguity in an agency rule, a court must give effect to the administrative agency’s intention in enacting the rule.

1985In Longo v McIlmurray, 115 Mich App 479, 485 ; 321 NW2d 701 (1982), this Court explained: "Where there is ambiguity in an agency rule, a court must give effect to the administrative agency’s intention in enacting the rule.

1985The United States Supreme Court construed this language to mean that a reviewing court would find an agency rule to be "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect *701 of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfg Ass’n v State Farm Mutual Automobile Ins Co, 463 US 29, 43 ; 103 S Ct 2856 ; 77

1985The United States Supreme Court construed this language to mean that a reviewing court would find an agency rule to be "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect *701 of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfg Ass’n v State Farm Mutual Automobile Ins Co, 463 US 29, 43 ; 103 S Ct 2856 ; 77

1957And in Geib v. Slater, 320 Mich 316 , and Riser v. Riser, 240 Mich 402, 404 (27 NCCA 518), this Court in discussing this statute quoted language purporting to originate in an Iowa case ( Maine v. James Maine & Sons Co., 198 Iowa 1278 [ 201 NW 20 , 37 ALR 161 ]): "`The liability of the owner of a motor vehicle for damages caused by the negligent operation thereof by another person, rests upon the doctrine of agency, express or implied. "`The liability is based upon the doctrine of respondeat superior.'" Geib v. Slater, supra, 320 .

1957And in Geib v. Slater, 320 Mich 316 , and Riser v. Riser, 240 Mich 402, 404 (27 NCCA 518), this Court in discussing this statute quoted language purporting to originate in an Iowa case (Maine v. James Maine & Sons Co., 198 Iowa 1278 [ 201 NW 20 , 37 ALR 161 ]): “ ‘The liability of the owner of a motor vehicle for •damages caused by the negligent operation thereof by another person, rests upon the doctrine of agency, •express or implied. “ ‘The liability is based upon the doctrine of respondeat superior.’ ” Geib v. Slater, supra, 320 .

1957And in Geib v. Slater, 320 Mich 316 , and Riser v. Riser, 240 Mich 402, 404 (27 NCCA 518), this Court in discussing this statute quoted language purporting to originate in an Iowa case ( Maine v. James Maine & Sons Co., 198 Iowa 1278 [ 201 NW 20 , 37 ALR 161 ]): "`The liability of the owner of a motor vehicle for damages caused by the negligent operation thereof by another person, rests upon the doctrine of agency, express or implied. "`The liability is based upon the doctrine of respondeat superior.'" Geib v. Slater, supra, 320 .

1957And in Geib v. Slater, 320 Mich 316 , and Riser v. Riser, 240 Mich 402, 404 (27 NCCA 518), this Court in discussing this statute quoted language purporting to originate in an Iowa case (Maine v. James Maine & Sons Co., 198 Iowa 1278 [ 201 NW 20 , 37 ALR 161 ]): “ ‘The liability of the owner of a motor vehicle for •damages caused by the negligent operation thereof by another person, rests upon the doctrine of agency, •express or implied. “ ‘The liability is based upon the doctrine of respondeat superior.’ ” Geib v. Slater, supra, 320 .