WMU-Cooley Law Review Volume 37: Spring/Summer 2022. Issue 1

WESTERN MICHIGAN UNIVERSITY COOLEY

LAW REVIEW

Volume 37 Spring/Summer 2022 Issue 1

Articles Separation of Powers: A Simple, but Crucial Doctrine Amidst a Pandemic Emily Gudwer

Thirteen Federal Executions Under the Trump Administration: What Was the Constitutional Price? Dan Noble

A Sane Proposal for the Mentally Ill: Are Their Second Amendment Rights Dead?

Raygen L. Lee

Fundamentally Fair for the Noncitizen: Federal Circuit Court Jurisdiction Over Ineffective Assistance of Counsel and Procedural Due Process Claims Made by Petitioners Seeking Discretionary Relief

Yesenia R. Soria

A Michigan Administrative Law Primer Don LeDuc

Distinguished Briefs

Law Offices of Jeffery Sherbow, P.C. v. Fieger & Fieger, P.C. Hon. Sima Patel

People of the State of Michigan v. Paul J. Betts Jessica Zimbelman

A Publication of Western Michigan University Thomas M. Cooley Law School

Cite this volume as: 32 W. MICH.U. T.M.COOLEY L. REV. (2015).

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i

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL

James McGrath, President & Dean Frank Aiello, Chief of Staff

BOARD OF DIRECTORS

Hon. Louise Alderson, Chairman

Aaron V. Burrell Mustafa Ameen Christina Corl Thomas W. Cranmer John M. Dunn

Hon. Michael P. Hatty Hon. Jane Markey Kenneth V. Miller Lawrence P. Nolan Hon. Bart Stupak Jordan V. Sutton Mitchell S. Zajac

PROFESSOR, FOUNDER, AND PAST PRESIDENT

The Honorable Thomas E. Brennan (deceased)

DEANS EMERITI

Michael P. Cox, Dean and Distinguished Professor Emeritus Keith J. Hey, Dean and Distinguished Professor Emeritus Robert E. Krinock, Dean and Professor Emeritus (deceased) Don LeDuc, Dean Emeriti

DISTINGUISHED PROFESSORS EMERITI

Gary Bauer

Curt Benson

David Berry

Ronald Bretz Kathleen Butler Evelyn Calogero

Paul Carrier Terrence Cavanaugh Karen Chadwick

Dennis Cichon Julie Clement Pat Corbett

David Cotter Mary D’Isa Mark Dotson

Cynthia Faulkner Norman Fell Gerald Fisher

Anthony Flores Judith Frank Elliot Glicksman (deceased)

Lisa Halushka Christopher Hastings James Hicks

Emily Horvath Peter Jason (deceased) John Kane

Eileen Kavanagh Peter Kempel (deceased) Mara Kent R. Joseph Kimble Dorean Koenig (deceased) Gerald MacDonald

Dena Marks John Marks

Jeffrey L. Martlew

Dan McNeal Helen Mickens Nelson Miller

Ann Miller Wood Marla Mitchell Cichon Lawrence Morgan

Maurice Munroe Kimberly O’Leary Charles Palmer

Nora Pasman Green James Peden Ernest Phillips

Philip Prygoski (deceased) John Rooney

Devin Schindler John Scott

Marjorie Russell

Charles Senger

Chris Shafer Dan Sheaffer Jane Siegel

Brent Simmons Paul Sorenson Norman Stockmeyer

John Taylor Gina Torielli Ronald Trosty

Gerald Tschura Victoria Vuletich William Wagner Cynthia Ward William Weiner F. Georgeann Wing Nancy Wonch

PROFESSORS EMERITI

Sherry Batzer James Carey

Lisa DeMoss

Heather Garretson Lewis Langham Ashley Lowe

Paul Marineau Donna McKneelen Monica Navarro

Florise Neville Ewell Norman Plate Toree Randall Dan Ray Kevin Scott Dan Sheaffer Ronald Sutton David Tarrien Lorna Thorpe Mock Karen Truszkowski

DEANS

Erika Breitfeld

Assistant Dean of the Lansing Campus and Associate Professor

Katherine Gustafson

Assistant Dean of the Tampa Bay Campus & Associate Professor

Paul J. Zelenski

Senior Vice President and Associate Dean of Enrollment & Student Services

Tracey Brame

Associate Dean of Experiential Learning and Practice Preparation & Director of the Innocence Project & Professor

Amy Timmer

Associate Dean of Academic and Student Affairs & Professor

Duane A. Strojny Associate Dean for Library and Instructional Support & Professor

PROFESSORS

Tammy Asher Amy Bandow

Brendan Beery Jeanette Buttrey Bradley Charles Mark Cooney

Mark Dotson Renalia DuBose Heather Dunbar

David Finnegan Amanda Fisher Dustin Foster

Marjorie Gell Katherine Gustafson Joseline Hardrick

Richard C. Henke James Hicks Emily Horvath

Barbara Kalinowski Linda Kisabeth Tonya Krause Phelan

Mable Martin Scott Daniel Matthews Michael McDaniel

Michael K. Molitor Martha Moore Florise Neville Ewell

Monica Nuckolls Lauren Rousseau Matthew Smith Martin

Jeffrey Swartz Patrick Tolan Joan Vestrand Christine Zellar Church

ADJUNCT PROFESSORS

Mustafa Ameenuddin Hon. Rosemarie Aquilina Andrew Arena

Byron Babbish Amy Bandow

Laura Bare

Brendon Basiga Gary Bauer David Berry

Kristina Bilowus David Bilson Scott Brinkmeyer

Chard Brown Charles Bullock Joseph Burgess

William Burleson Evelyn Calogero Lindsay Canan James Carey Terrence Cavanaugh Joseph Celello

Karen Chadwick Theresa Jean Pierre Coy Debbie Crockett

Mary D’Isa Marshall Deason Elizabeth Devolder

Rich Digiacomo Stacey Dinser Michelle Donovan

Steve Dulan Peter Durand Lisa Fadler

Joshua Fahlsing William Fleener Richard Garcia

Laura Genovich Jack Gilbreath Nathan Goetting

Phillip Green Jonathan Grossman Katherine Gustafson

Christi Henke Michael Hughes Nancy Hillary

Daniel Houlf Timothy Innes Hon. Curtis Ivy

Julie Janeway Any Jonker Shannon King

Lewis Langham Michael Leffler Caroline Johnson Justin Lighty Matthew Lucas Peggy MacDougall

Colin Maguire Daryl Manning Matthew Marin

Paul Marineau John Mashni Ellen Mason

Michael McClory Catherine McCollum Hon. Catherine McEwen Scott Mertens Thomas Moga Julie Mullens

Andrea Muroto Bilabaye Mikhail Murshak Thomas Myers

Nicholas Nazaretian John Nicolucci Sarah Ostahowski

Steven Owen Donna Perry Kevin Peterson Christine Piatkowski Karen Poole Kerry Przybylo

Rebecca Pugliesi Teri Quimby Alissa Raasch Antoinette Raheem Daniel Ray Dale Rietberg

Robert Rothman Christopher Sabella Salvatore Lamendola Kelsey San Antonio Ronald Sangster Traci Schenkel

Joseph Shada Michael Shea Sheila Lake

Ben Shotten Samantha Sliney Eric Skinner

Daria Solomon Sonya Beverly Robert Stocker

Timothy Stoepker Cari Sullivan John Taylor

David Tirella Gregory Ulrich Miriam Velez

Victor Veschio James Vlasic Graham Ward Geoffrey Weed Samantha Welton

WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW TRINITY 2022

BOARD OF EDITORS

Nancy Zieah Editor in Chief

Taylor McNeeley Executive Managing Editor

Krysten Hergert

Executive Articles Editor

Anna King Executive Symposium Editor

Samira Montlouis Interim Executive Articles Editor

Brittany Lindsay Executive Publicity Editor

Jessica Sevillo Interim Executive Notes Editor

Riley Stheiner Managing Articles Editor

Mark Cooney Faculty Advisor

ASSOCIATE EDITORS

Patrick Abood Jayson Thomas

Nicholas Taylor Stephanie Ray Marcus Douglas Anthony Djelsosevic Mersadies Mark Carol Bello Julia Card David Fried Stephen Tobler

DAWN C. BEACHNAU AWARD

This award is presented to the member of the Western Michigan University Cooley Law Review Voting Board of Editors who made the most significant contributions to the Law Review through leadership and dedication.

Trinity 2022 Recipient: Nancy Zieah

JOHN D. VOELKER AWARD

This award is presented to the Senior Associate Editor of the Western Michigan University Cooley Law Review who made the most significant contributions to the publication of the Law Review.

Trinity 2022 Recipient: Riley Stheiner

EUGENE KRASICKY AWARD

This award is presented to the Assistant Editor of the Western Michigan University Cooley Law Review who made the most significant contributions to the publication of the Law Review.

Hilary 2022 Recipient: Nicholas Taylor

WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW HILLARY 2022

BOARD OF EDITORS

Monte D. Jackson, II Acting Editor in Chief & Managing Editor

Nancy Zieah Interim Editor in Chief

Delishia Brown

Executive Symposium Editor

Taylor McNeeley Interim Managing Editor Anna King Interim Executive Symposium Editor

Adrianna Watson Executive Solicitation Editor

Brittany Lindsay Interim Executive Solicitation Editor

Patrick Abood

Mark Cooney Faculty Advisor

Krysten Hergert Executive Articles Editor

Rebecca Stewart Executive Subcite Editor

Riley Stheiner Interim Executive Subcite Editor

ASSOCIATE EDITORS

Elizabeth Badovinac

Lucas Brown

Marcus Douglas David Fried Faith Gold Elizabeth Johnson Dan Noble Alex Patterson You Qu Stephanie Ray Laykin Stone Stephen J. Tobler Beth Van Deusen

DAWN C. BEACHNAU AWARD

This award is presented to the member of the Western Michigan University Cooley Law Review Voting Board of Editors who made the most significant contributions to the Law Review through leadership and dedication.

Hilary 2022 Recipient: Monte Jackson

JOHN D. VOELKER AWARD

This award is presented to the Senior Associate Editor of the Western Michigan University Cooley Law Review who made the most significant contributions to the publication of the Law Review.

Hilary 2022 Recipient: Marcus Douglas

EUGENE KRASICKY AWARD

This award is presented to the Assistant Editor of the Western Michigan University Cooley Law Review who made the most significant contributions to the publication of the Law Review.

Hilary 2022 Recipient: David Fried

WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW

CONTENTS

FROM THE EDITOR xiii

ARTICLES

Separation of Powers: A Simple, but Crucial Doctrine Amidst a Pandemic Emily Gudwer..............................................................................1

Thirteen Federal Executions Under the Trump Administration: What Was the Constitutional Price? Dan Noble 15

A Sane Proposal for the Mentally Ill: Are Their Second Amendment Rights Dead?

Raygen L. Lee 35

Fundamentally Fair for the Noncitizen: Federal Circuit Court Jurisdiction over Ineffective Assistance of Counsel and Procedural Due Process Claims Made by Petitioners Seeking Discretionary Relief

Yesenia R. Soria 79

A Michigan Administrative Law Primer Don LeDuc 119

DISTINGUISHED BRIEFS

Law Offices of Jeffery Sherbow, P.C. v. Fieger & Fieger, P.C. Hon. Sima Patel.......................................................................257

People of the State of Michigan v. Paul J. Betts Jessica Zimbelman...................................................................317

LETTER FROM THE EDITOR

Dear Reader,

I am proud to present to you the 37th volume of the WMU Cooley Law Review. I would like to begin by thanking you for your continued support and patronage. The Western Michigan University Cooley Law Review members have devoted themselves to tirelessly working on the articles presented in this edition and Iam honored to have hadan opportunity to work with them. I would also like to thank the authors for their patience, understanding, and confidence in our team. Allowing us to collaborate with you toward advancing legal discourse has been a privilege.

This edition contains a primer on Michigan Administrative Law and four articles focused on the United States Constitution and its application to matters that include: the separation of powers, federal executions, firearm ownership, and immigration. The first article examines the executive branch and its use of emergency powers amidst the COVID 19 pandemic. The second article discusses federal executions under the Trump Administration and the controversy surrounding lethal injection. The third article demonstrates how involuntarily committed individuals are stripped of their rights to bear arms and introduces a judicial remedy. The final article sheds light on the lack of due process rights afforded to immigrants.

In addition, we are especially honored to include two of the three award winning briefs from the 2021 Distinguished Brief Awards hosted by the WMU Cooley Law Review. Hon. Christopher Murray, then chief judge of the Michigan Court of Appeals, provided the keynote address, stating: “The power of the written word, persuasion on paper, is what wins your client a day in court. These chosen briefs are examples of what all attorneys need to excel at written advocacy.” The first brief was written by Hon. Sima Patel, prior to being elected to the Michigan Court of Appeals. The second brief was written by Jessica Zimbelman, a managing attorney with the State Appellate Defender Office.

As society continues to evolve, the constutional protections and limitations surrounding the executive power, death penalty, right to bear arms, and immigration rights will be challenged. For this reason, we hope to add additional insight and potential resolutions to this ongoing dialogue. I am confident you will enjoy this edition and wish you the very best.

Sincerely, NancyZieah

SEPARATION OF POWERS: A SIMPLE, BUT CRUCIAL DOCTRINE AMIDST A PANDEMIC

EMILY GUDWER

INTRODUCTION .....................................................................................2

Pandemic History in the United States .....................................2 United States Initial Response to COVID 19............................3 Separation of Powers Overview................................................4

STATE CASE ANALYSIS 4

Michigan Supreme Court Rules that the EPGA is in Violation of the State of Michigan’s Constitution 4

Wisconsin Supreme Court Rules that Andrea Palm Overstepped her Authority When Issuing her State Order with Respect to COVID 8

Ohio Court of Common Pleas Rules that the State Health Director, Amy Acton, exceeded her Authority and Violated the Ohio State Constitution, Incidentally Creating a Separation of Powers Issue 9

Kansas Supreme Court Rules that the Legislative Coordinating Council Lacked Authority to Overrule Governor Kelly’s Order 10 Missouri United States District Court Judge, Stephen Clark, Acknowledges Separation of Powers Issue Relating to Missouri’s COVID 19 Stay at Home Orders......................12

CONCLUSION ......................................................................................13

W. MICH. U. COOLEY LAW REVIEW [Vol. 37:1

INTRODUCTION

The acute respiratory syndrome SARS CoV 2 causes the disease known as the coronavirus or COVID-19.1 The first case of COVID19 was reported in Wuhan, China on December 31, 2019.2 In early 2020, the virus had made its way to the United States, with the first case being confirmed on January 20, 2020.3 On March 11, 2020, the World Health Organization officially declared a global pandemic, and states took immediate action.4 Before COVID 19, the United States was affected by the influenza pandemic, which stemmed from the H1N1 virus.5 In 1918 and 1919, an estimated 500 million people became infected with influenza, with 50 million infections resulting in death.6 Earlier than that, the United States was affected by the smallpox pandemic, and throughout history smallpox has taken an estimated 300 million lives in the 20th century.7 COVID-19 has proven to be an aggressive threat to a number of countries. As of November 28, 2020, there have been 268,864 confirmed deaths in the United States from COVID 19.8

Pandemic History in the United States

Looking at precedent for guidance on global pandemics, a significant historical case stands out. In Jacobson v. Massachusetts, the issue presented before the court was whether a state statute that

1 Coronavirus and COVID 19: What You Should Know, WebMD (Sept. 29, 2020), https://www.webmd.com/lung/coronavirus#:~:text=COVID%2D19%20is% 20a,to%2Dperson%20contact.

2 Michelle L. Holshue et al., First Case of 2019 Novel Coronavirus in the United States, NEJM (Mar. 5, 2020), https://www.nejm.org/doi/full/10.1056/NEJ Moa2001191.

3 Id.

4. Domenico Cucinotta & Maurizio Vanelli, WHO Declares COVID 19 a Pandemic, 91 Acta Biomed 157 (Mar. 19, 2020), https://www.mattioli1885jour nals.com/index.php/actabiomedica/article/view/9397/8659.

5 1918 Pandemic (H1N1 virus), CDC: Centers for Disease Control and Prevention, https://www.cdc.gov/flu/pandemic resources/1918pandemic h1n1.html (last visited Dec. 2, 2020).

6 Id.

7. Colette Flight, Smallpox: Eradicating the Scourge, BBC (Feb. 17, 2011), https://www.bbc.co.uk/history/british/empire_seapower/smallpox_01.shtml.

8 Cumulative Confirmed Covid 19 Deaths, Our World in Data, https://our worldindata.org/explorers/coronavirusdataexplorer?facet=none&Metric=Confirme d+deaths&Interval=Cumulative&Relative+to+Population=false&Color+by+test+p ositivity=false&country=~USA.(last updated Feb. 2022).

required mandatory vaccinations during the smallpox pandemic abridged the defendant’s constitutional rights.9 The defendant argued the 14th Amendment of the United States Constitution provides “that no State shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”10 The Supreme Court ruled that the state’s authority to enact this type of statute stems from what is commonly known as the state’s police power.11 The court explained:

Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact quarantine laws and “health laws of every description;” indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other States. According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.12

United States Initial Response to COVID 19

As states started to react to the COVID 19 pandemic, governors across the country declared a state of emergency and issued stay at home orders to protect public health. However, soon after, citizens started to retaliate, claiming that their individual rights were being violated with the continuous state of emergency orders: stay at home orders, limitations on gatherings, tight restrictions on travel, mandatory mask requirements, etc. Some citizens across the country claimed that, under the First Amendment of the United States Constitution, these orders violated their right to speech, assembly, and association. Other citizens claimed state orders violated their liberty and bodily autonomy guaranteed under the Fourteenth Amendment.

While there were numerous cases relating to the alleged violations of citizens’ constitutional rights, there were also challenges making their way to the state court systems. Such challenges

9 Jacobson v. Cmmw. of Massachusetts, 197 U.S. 11, 24 (1905).

10 Id at 7 8.

11 Id. at 24 25.

12 Id. at 25.

W. MICH. U. COOLEY LAW REVIEW [Vol. 37:1

involved the separation of powers doctrine and whether governors or state officials had the authority to issue, implement, and extend certain state orders. The central issue in many of these cases was whether these individuals overstepped their governmental role. During a crisis such as COVID 19, these issues may seem minor but we must not be ignorant as to the impact of such violations on our individual liberties. These essential rights depend on each branch of government to adhere to their own responsibilities and position of authority.

Separation of Powers Overview

Separation of powers is the divide between the three branches of government: legislative, executive, and judicial.13 By dividing the government into three branches, it provides a checks and balances system to ensure that the federal and state governments do not abuse or overstep their authority.14 Each branch must act independently and depend on one another to perform their responsibilities.15 As a result, each branch is able to hold one another accountable, providing that the power and control does not lie in the hands of one branch; thus, creating government equality.

Contrary to what some may think, a strict separation of powers is more, not less, important during a time of crisis. Just because an emergency policy is painful or unpopular does not necessarily mean it is illegal. But emergency power is not unlimited. And policies must be enacted in a proper way, compliant with the checks and balances inherent in the separation of powers.16

STATE CASE ANALYSIS

Michigan Supreme Court Rules that the EPGA is in Violation of the State of Michigan’s Constitution

Michigan’s governor, Gretchen Whitmer, has generated a significant amount of media attention for the various executive orders

13 Separation of Powers An Overview, NCSL: National Conference of State Legislatures (May 1, 2019), https://www.ncsl.org/research/about state legislatures /separation of powers an overview.aspx.

14 Id.

15 Id.

16 Glenn Roper, Government should uphold separation of powers during COVID 19, Pacific Legal Foundation (July 20, 2020), https://pacificlegal.org /uphold separation of powers during covid 19/.

she issued and the scope of her state of emergency during the COVID 19 pandemic. Governor Whitmer initially declared a state of emergency on March 10, 2020.17 She then issued a stay at home order on March 24, 2020.18 On April 7, both chambers of the Legislature adopted Senate Concurrent Resolution No. 24 (2020), validating the Governor’s state of emergency declaration, and setting an expiration date of April 30, 2020, consistent with the Emergency Management Act (EMA).19

On April 9, Governor Whitmer issued EO 2020 42, rescinding EO 2020 21 Whitmer expressed that COVID 19 “continued to be aggressive and a threat to public health.”20 EO 2020-42 extended her stay at home order until April 30, 2020.21 “On April 24, 2020, the Governor issued EO 2020 59, rescinding EO 2020 42.”22 Michigan’s stay at home order was extended until May 15, 2020, pursuant to EO 2020 59.23

Under the EMA, Governor Whitmer requested that the Legislature extend Michigan’s state of emergency on April 27, 2020 the Legislature declined Whitmer’s request.24 The Legislature disagreed with the governor and “sought to reopen Michigan businesses subject to precautionary measures recommended by the Centers for Disease Control and Prevention.”25 On April 30, 2020, Governor Whitmer vetoed 2020 SB 858, which was submitted by the Legislature for her approval.26 In May of 2020, a dispute between Governor Whitmer and the Legislature arose, questioning Whitmer’s authority to “issue, implement, and extend those emergency based [executive orders].”27 In House of Representatives and Senate v. Governor, the Legislature claimed that Whitmer violated the EMA, the EPGA, the State of Michigan’s Constitution, and the Separation of Powers Clause.28

17. H.R. and Sen. v. Gov., 333 Mich. App. 325, 336 (Mich. App. 2020) (rev ’d in part sub nom. H.R. v. Gov.). 18 Id. 19 Id. at 335. 20 Id. 21 Id. 22 Id. 23. Id. 24 Id. 25 Id. 26 Id 27 Id. at 330. 28 Id. at 329.

W. MICH. U. COOLEY LAW REVIEW [Vol. 37:1

The Court of Appeals found that under the Emergency Powers of the Governor Act (EPGA), Whitmer’s declaration of a state of emergency, the extensions, and her related executive orders fell within the scope of her authority.29 Furthermore, the court held that the “EPGA does not violate the Separation of Powers Clause.”30 Lastly, the court declined to address EMA and stated that by ruling on EPGA, the EMA matters were moot.31

More recently, on October 2, 2020, the Supreme Court of Michigan issued a decision that Whitmer did not hold the power to declare a “state of emergency” after April 30, 2020, under the EMA.32 The court found the EPGA was unconstitutional under the State of Michigan and the EPGA could no longer provide Governor Whitmer emergency powers.33

Under the Michigan Constitution of 1963, “the powers of government are divided into three branches: legislative, executive and judicial.”34 Furthermore, no person shall overstep or exercise any power not belonging to them, unless provided in the Michigan Constitution.35 “The legislative power of the State of Michigan is vested in a senate and a house of representatives;” they possess the power to make the laws.36 The executive power lies in the governor, who possesses the power to carry out the laws made by legislation.37

The Michigan Legislature implemented the EPGA in 1945.38 This Act states that during a public crisis or public emergency, when public safety is imperiled, the governor may proclaim a state of emergency; furthermore, this act authorizes the governor to prescribe penalties for any violation.39

Concerning the EPGA, the Legislature asserted its intent was “to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or

29. Id. at 365.

30 Id. at 359.

31 Id.

32 In re Certified Questions From U.S. Dist. Ct., W. Dist. of Michigan, S. Div., 506 Mich. 332, 372 (Mich. 2020).

33 Id. at 373.

34. Mich. Const. art. III, § 2.

35. Mich. Const. art. II, § 9.

36 Mich. Const. art. IV, § 1.

37 Id. at 367.

38 Id. at 331.

39 Id.

actual public crisis or disaster.”40 The court found that the power that the governor was granted under the EPGA is exclusive, not inclusive.41

The emergency powers that are granted to the governor under the EPGA may be exercised until the governor declares “that the emergency no longer exists.”42 Contrary to the EPGA, in 1976 the Legislature enacted the EMA to “provide for planning, mitigation, response, and recovery from natural and human made disasters within and outside” the State of Michigan.43 Furthermore, with respect to the duration of the governor’s emergency powers, the EMA provides that “if a governor wishes to extend an existing state of disaster or emergency beyond 28 days, the Legislature must approve the extension by resolution.”44 The EPGA provides the governor with emergency powers, including police powers which lie with the legislature, for an indefinite duration.45 However, the EMA provides the governor with the power to declare a state of emergency limited to 28 days.46 When comparing the governor’s state of emergency powers under the EPGA and the EMA there is a colossal conflict between the two acts.47

The Supreme Court of Michigan concluded that the EPGA was in violation of the Constitution of Michigan when it allowed the governor to exercise plenary police powers indefinitely which was an unlawful delegation of legislative power to the executive branch, creating a separation of powers issue.48 Therefore, after April 30, 2020, Governor Whitmer no longer possessed authority to declare a state of emergency due to the COVID 19 pandemic under the EMA which is still valid under the State of Michigan’s constitution.49

40 Id. at 332.

41. Id. 42. Id. at 336.

43. Emergency Mgmt. and Homeland Sec. Div. Michigan State Police, Michigan Emergency Management Act (June 2018), https://www.michigan.gov /documents/mspemd Act_390_of_1976_7125_7.pdf.

44 H.R. and Sen. v. Gov., 333 Mich. App. 325, 336 (Mich. App. 2020) (rev ’d in part sub nom. H.R. v. Gov.)

45. In re Certified Questions From U.S. Dist. Ct., W. Dist. of Michigan, S. Div., 506 Mich. 332, 364 (Mich. 2020).

46 Id. at 342.

47 Id. at 356.

48 Id. at 372 73.

49 Id.

W. MICH. U. COOLEY LAW REVIEW [Vol. 37:1

Wisconsin Supreme Court Rules that Andrea Palm Overstepped her Authority When Issuing her State Order with Respect to COVID

Wisconsin’s governor, Tony Evers, took immediate action by issuing a stay at home order in response to COVID 19.50 However, on April 16, 2020, Andrea Palm, the Department of Health and Services Secretary, issued Emergency Order 28.51 This specific order directed that all citizens of Wisconsin were “to stay home or at their place of residence with certain limited exceptions approved by Palm or risk punishment by up to 30 days imprisonment, or up to $250 fine, or both.”52

In early May, the Wisconsin Supreme Court ruled in Wisconsin Legislature v. Palm that Andrea Palm had overstepped her legal authority relating to Emergency Order 28.53 The Supreme Court expressed that they were not concluding that Palm did not possess authority to act during COVID 19.54 More specifically, the court stated that “Palm must follow the law that is applicable to state wide emergencies.”55 The court further stated that “Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02 upon which Palm claims to rely.”56

This case is a prime example of a separation of powers issue resulting from state response to the COVID 19 pandemic. In Rebecca Grassl Bradley’s concurring opinion, she stated:

The secretary designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance. In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether. The separation of powers embodied in our constitution does not permit this. Statutory law being subordinate to the constitution, not even the people’s representatives in

50 Wisconsin Legis. v. Palm, 942 N.W.2d 900, 905 (Wis. 2020).

51. Id. at 906.

52 Id. 53 Id. at 918. 54 Id. at 905. 55 Id. 56 Id.

the legislature may consolidate such power in one person.57

Not only was this a significant move on Wisconsin’s part because they were one of the first states to have a stay at home order overruled, but at this time, the Coronavirus was rapidly spreading, and Wisconsin was one of the only states that did not have precautionary measures set in place to protect the state’s citizens once Palm’s order was overturned. It is vital to note that had Evers worked directly with the state’s Legislature to implement restrictions and create a proactive plan with respect to the above referenced order, there would likely have been a different outcome in Wisconsin Legislature v. Palm, and a significant difference in the number of transmissions and deaths due to COVID 19 once the order was no longer in place.58

Ohio Court of Common Pleas Rules that the State Health Director, Amy Acton, exceeded her Authority and Violated the Ohio State Constitution, Incidentally Creating a Separation of Powers Issue

Ohio faced a similar separation of powers issue as Wisconsin. In Rock House Fitness, Inc. v. Acton, the plaintiffs sought a declaratory judgment ruling that Amy Acton, who is the State Health Director, violated the Ohio Constitution when issuing her stay at home orders relating to COVID 19.59 Judge Eugene A. Lucci ruled in favor of the plaintiffs.60 The plaintiffs argued that Acton’s order exceeded her authority “by legislating and directing public policy, rather than administering public policy,” violating separation of powers.61

Acton was granted certain authority under R.C. 3701.13, which provides in part:

[t]he department of health shall have supervision of all matters relating to the preservation of the life and health of the people and have ultimate authority in matters of quarantine and isolation, which it may

57 Id. at 920.

58 Glen Roper, Government should uphold separation of powers during COVID 19, Pacific Legal Foundation (July 20, 2020), https://pacificlegal .org/uphold separation of powers during covid 19/.

59 Rock House Fitness, Inc. v. Acton, No. 20CV000631, 2020 WL 3105522, at *1 (Ohio Com.Pl.).

60 Id. at *5.

61 Id. at *2.

W. MICH. U. COOLEY LAW REVIEW [Vol. 37:1

declare and enforce, when neither exists, and modify, relax, or abolish, when either has been established.62

It further provides that the department of health can implement orders or regulations to prevent the advancement of a transmissible or infectious disease.63

Acton ordered “non essential businesses and operations must cease,” which would be effective on March 23, 2020, and all citizens were ordered to stay at their place of residence, with strict exceptions for those engaged in “essential activities, essential government functions, or to operate essential businesses.”64

After analyzing various definitions of the terms incorporated in Ohio’s statute, the Ohio Court concluded that Acton was quarantining all citizens of Ohio for much longer than 14 days and Acton did not possess the appropriate authority to “close all businesses, including the plaintiffs’ gyms which she deem[ed] non essential for a period of two months.”65 The Ohio Court further stated, “she has acted in an impermissibly, unreasonable, and oppressive manner and without any procedural safeguards.”66 Similar to Andrea Palm, Amy Acton was not without power to act during a pandemic; Acton, however, created a separation of powers issue when failing to follow statutory language and acting beyond her authority, kindred to Andrea Palm.

Kansas Supreme Court Rules that the Legislative Coordinating Council Lacked Authority to Overrule Governor Kelly’s Order

Kansas’s governor, Laura Kelly, “proclaimed a state of disaster emergency” in response to COVID-19 on March 12, 2020.67 The Legislative Coordinating Council (LCC) sought to revoke one of Kelly’s orders and she brought action against the Legislative Coordinating Counsel, the Kansas House of Representatives, and the Kansas Senate.68 Kelly had the authority to declare a state of disaster

62 Id. at *3 (emphasis added).

63. Id. 64 Id. at *2. 65 Id. at *4. 66 Id. 67 Kelly v. Legis. Coordinating Council, 460 P.3d 832, 835 (Kan. 2020). 68 Id. at 834.

emergency under K.S.A. 48 924(b).69 The Legislature then extended Kelly’s declaration to May 1, 2020.70

On April 7, Governor Kelly used her K.S.A. 2019 Supp. 48 925(b) powers to issue Executive Order 20 18, relating to her March 12th emergency proclamation.71 Executive Order 20 18 stated that mass gatherings defined as any event, private or public, that would result in 11 people or more in a “confined or enclosed space” at one time were currently prohibited to stop the spread of COVID 19.72 The following day, the LCC revoked Order 20 18 by a 5 2 vote.73

The Kansas Supreme Court held that the LCC did not have the authority to “act on behalf of the Legislature;” therefore, they did not have the power to overrule Kelly’s Order pursuant to clear statutory language.74 The LCC’s claim was that HCR 5025 granted power to the LCC to represent “Legislature when the Legislature was not in session.”75 However, HCR 5025 states that the governor must “apply to the State Finance Council for authorization for a one time extension of a state of disaster emergency.”76

That language in section 1 of the resolution parallels K.S.A. 48 924(b)(3). The resolution then states: (2) following such State Finance Council action, the Legislative Coordinating Council, representing the Legislature when the Legislature is not in session pursuant to K.S.A. 46 1202: (A) Is authorized to ratify a declaration, terminate a state of disaster emergency, revoke an order or proclamation or assume any other power granted to the legislature pursuant to K.S.A. 48 924 or K.S.A. 2019 Supp. 48 925.77

In a nutshell, the State Finance Council must first take action before the LCC is provided authority under HCR 5025(2).78 Subsection (2) of HCR 5025(2) explicitly states, “following such State Finance Council action” and considering the State Finance Council did not take action, HCR 5025 could not provide the LCC authority to overrule Kelly’s executive order.79 When the LCC

69 Id. at 835.

70 Id. at 836.

71 Id. at 837.

72 Id. 73 Id.

74. Id. at 839.

75 Id.

76 Id. at 838.

77 Id. 78 Id. at 839.

79 Id.

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revoked Kelly’s order, it resulted in a significant separation of powers issue.

Missouri United States District Court Judge, Stephen Clark, Acknowledges Separation of Powers Issue Relating to Missouri’s COVID 19 Stay at Home Orders

In Missouri, United States District Court Judge, Stephen R. Clark, denied plaintiffs’ motion in SH3 Health Consulting, LLC, et al., v. St. Louis County Executive Dr. Sam Page, et al., in which they claimed that the state orders were unconstitutional when their businesses were temporarily shut down due to Missouri’s stay at home orders.80 The plaintiffs sought a temporary restraining order, preventing the defendants from enforcing the orders.81 Judge Clark quoted Jacobson v. Massachusetts, a historical case, stating that the orders do not violate the constitution because they have “a real and substantial relation to the goal of stemming the tide of the public health pandemic, and they are not beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”82

Judge Clark spoke on behalf of the separation of powers issue that arose in this case. He expressed his sympathy with respect to the hardships that each business owner will face due to the stay at home orders; however, he stated that “the decisions of whether, when, and how to exercise emergency powers amidst a global pandemic belong not to the unelected members of the judicial branch but to the elected officials of the executive branch.”83

Furthermore, Clark quoted the Federalist Papers, stating that the separation of powers requires that each branch of government “stay in their lane” and even though Clark sits in a position of power and has the authority of judicial review, it does not mean he can override judgments made by other branches of government.84 “When courts substitute their judgment for judgements made by the executive or legislative branches, courts exceed their authority, veritably swerving into the lanes of the other branches, and violating the Constitutional separation of powers.”85 This case provides a very transparent

80 SH3 Health Consulting, LLC v. Page, 459 F. Supp. 3d 1212, 1217 (E.D. Mo. 2020).

81 Id. 82 Id. 83 Id. at 1220. 84 Id. 85 Id.

simplification of how important it is for each branch of government to refrain from acting beyond their issued authority even during a pandemic, respecting the people and their liberties and providing an equal, sustained government.

CONCLUSION

A separation of powers issue can arise in a variety of different ways, as evidenced through the multiple cases we have encountered during COVID 19. Without the separation of powers, our country would result in corruption and loss of control by the people. The structure and establishment of the separation of powers creates the checks and balances that are essential to providing the people a strong, uniform government, ensuring government power is distributed equally. In short, the separation of powers provides and protects individual liberty.

COVID 19 has had a disastrous impact on, not only the United States of America, but the world, in a variety of different aspects. “By the time the coronavirus is placed under control, which could be months or even years from now, its effect on constitutional jurisprudence . . . will likely be profound.”86

Even during a time of crisis, we must look to the founding fathers for guidance and respect what they have put in place for us, the people of America, and what each state’s constitution expresses. James Madison brilliantly stated, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”87

86. John Curran, Jake Gardener & Jeffery Ding, COVID 19 and the Constitution: How the Bill of Rights Is Being Tested by the Coronavirus (May 29, 2020), https://www.law.com/newyorklawjournal/2020/05/29/covid 19 and the con stitution how the bill of rights is being tested by the coronavirus/.

87 The Federalist Papers, No. 47, p. 139 (2d ed. 1981).

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THIRTEEN FEDERAL EXECUTIONS UNDER THE TRUMP ADMINISTRATION: WHAT WAS THE CONSTITUTIONAL PRICE?

DAN NOBLE

INTRODUCTION ...................................................................................16

BACKGROUND 18 Cruel and Unusual Punishment Jurisprudence ......................18 Executions Administered by Lethal Injection 22 Challenging a Lethal Injection Method on VIII Amendment Grounds 24

ANALYSIS 25

The D.C. District Court Found the Prisoners Were Likely to Succeed on Their VIII Amendment Claim and Granted Their Preliminary Injunction..............................................25

The Supreme Court Granted Certiorari Before this Decision Made its Way Through the Appellate System and Vacated the Injunction Establishing Precedent for the Remaining Prisoners’ Claims. 28

Following Lee, the Next Prisoner Was Executed Before His Legal Claims Were Fully Adjudicated. 30 The Compounded Version of Pentobarbital Likely Caused Unnecessary Pain and Suffering That Was Downplayed by Those in the Execution Chambers......................................31

CONCLUSION.. ....................................................................................33

INTRODUCTION

In July of 2019, Attorney General William Barr announced that the federal government would resume executing prisoners on death row after “a nearly two decade lapse.”1 The Department of Justice proposed an addendum to a 10 year old execution protocol.2 The Federal Execution Protocol replaced the three drug method of execution with a single dose injection of pentobarbital.3

The announcement sent shockwaves through the legal community. AG Barr listed the names of selected prisoners on death row and the scheduled dates for their executions.4 Most of the names Attorney General Barr listed had been on death row for 15 to 20 years.5 The prisoners all had one thing in common: they had committed heinous and violent crimes.6 All of whom had been convicted of murdering vulnerable members of society.7 On its face, the decision by AG Barr appeared to be based on seeking justice for the victims’ families.8 However, the Republican Party has long favored the death penalty, most recently President Donald Trump, who was particularly fond of resuming federal executions.9 President Trump made it part of his Presidential campaign in 2016 when he announced, “Death penalty all the way.”10 Resuming federal executions reminded critics of Trump’s 1989 call to execute teenagers who were wrongly convicted of murder in New York.11

1. Press Release, DOJ, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse, (July 25, 2019), https://www.justice.gov /opa/pr/federal government resume capital punishment after nearly two decade lapse. 2 Id. 3 Id. 4. Id. 5. Id. 6 Id. 7 Id. 8 Id.

9 Issac Arnsdorf, Inside Trump and Barr’s Last Minute Killing Spree, ProPublica, (Dec. 23, 2020, 5:53 PM EDT), https://www.propublica.org/article/ inside trump and barrs last minute killing spree.

10 Id.

11 Rebecca Morin,’They Admitted their Guilt’: 30 Years of Trump’s Comments About the Central Park Five, USA TODAY (last updated June 20, 2019, 6:14 AM), https://www.usatoday.com/story/news/politics/2019/06/19/what trump has said central park five/1501321001/.

FEDERAL EXCLUSIONS

The only issue that could have thwarted the Trump Administration’s plan was the creation of its version of pentobarbital to carry out the executions. Prisoners on death row began filing lawsuits and appeals in an attempt to stay their executions.12 These were viable legal challenges that did not appear to be a frivolous attempt to stall or delay their executions. The prisoners presented plausible medical evidence that an injection of pentobarbital could cause flash pulmonary edema.13 Pulmonary edema interrupts breathing when the lungs become filled with fluid.14 This can cause the prisoner to feel “‘sensations of drowning and asphyxiation’ resulting in ‘extreme pain, terror[,] and panic.’”15

Fast forward a year, no prisoners were executed. Litigation continued over the new protocol, there was competing medical testimony as to whether the new drug was inflicting unnecessary pain and anguish on the prisoners, and the COVID 19 pandemic had disrupted the judicial system. The Trump Administration saw its chance to make a statement on behalf of the conservative leaning population of America slipping away.

The election was approaching, and the challenger, current President Joe Biden, had already pledged to be against the death penalty. Luckily, the majority of the Supreme Court, with three Trump appointees, cleared the way for the executions. What followed was 13 executions in six months, which was an unprecedented spree of federal executions in United States’ history.16 The majority of the executions were carried out after the November 2020 election.17 An almost unimaginable move by a Presidential Administration during a lame duck period.

Death penalty advocates may argue this was overdue justice. But the reality is these were hastily carried out executions motivated by political interests. This leads one to question whether these executions deserved more attention from the U.S. Supreme Court.

12 In Re Federal Bureau of Prisons’ Execution Protocol Cases, 471 F. Supp. 3d 209, 216 (D.D.C. 2020).

13 Id. at 217.

14 Id. at 218.

15 Id.

16 Arnsdorf, supra note 9.

17 Id.

BACKGROUND

The death penalty has long been a part of our Nation’s history. Its origins can be traced back to England, where torture and imprisonment were the preferred methods of achieving societal and governmental goals. Indeed, legal and historical scholars believe the cruel and unusual portion of the VIII Amendment was a way for the U.S. to prevent similar methods of punishment from occurring in the young country.18 The constitutional guard against cruel and unusual punishment has long been intertwined with controversies surrounding methods of administering the death penalty.

Cruel and Unusual Punishment Jurisprudence

“[N]or cruel and unusual punishments inflicted.”19 This simple phrase has been the subject of several landmark United States Supreme Court cases attempting to interpret the amendment and application to executing prisoners.

Beginning with In re Kemmler, the petitioner was convicted of murder, and he was sentenced to death under a New York statute.20 His appeal went to the Supreme Court, challenging the constitutionality of electrocution as a method for administering death.21 The Court agreed with the New York courts that determined a method for administering the death penalty is not assumed to be cruel because it is new and unusual.22 This case established the principle that if the legislature has a “humane purpose” for choosing the execution method, then it is not unconstitutional if it is unusual.23 Further, the Court stated, “[p]unishments are cruel when they involve torture or lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution.”24

The Supreme Court was not challenged with an VIII Amendment case involving capital punishment until the mid Twentieth Century. The next landmark case, Weems v. U.S., was one of the first notable cases to overturn a statutory punishment because it was excessive for

18 Furman v. Georgia, 408 U.S. 238, 319 (1972) (Marshall, J., concurring).

19. U.S. Const. amend. VIII.

20. In re Kemmler, 136 U.S. 436, 439 (1890).

21 Id. at 437.

22 Id. at 443.

23 Furman, 408 U.S. at 323 (Marshall, J., concurring).

24 Kemmler, 136 U.S. at 447.

FEDERAL EXCLUSIONS

the crime committed.25 The Court provided that the VIII Amendment and the Constitution cannot be viewed “only of what has been, but of what may be.”26 The Court acknowledged that the legislature, such as purporting punishment to crime, is enacted in response to crimes that have been committed.27 However, the Court went on to say it is vital that a principle, such as the prohibition of administering cruel and unusual punishment, “[B]e capable of wider application than the mischief which gave it birth.”28 The Court stated further, “The clause of the Constitution . . . may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by humane justice.”29 These court opinions serve as important dicta for future courts tasked with applying the VIII Amendment to capital punishment cases.

The next landmark case backtracked the zealous principles stated in Weems. In State of La. ex rel. Francis v. Resweber, the Court was required to address if it was cruel and unusual punishment to execute a prisoner after a failed execution attempt.30 The petitioner was convicted of murder and sentenced to death.31 However, on the date of his execution, the electricity did not kill him.32 For an unknown reason, the electrical current that coursed through his body did not result in death, and he challenged a second execution attempt on VIII Amendment and V Amendment double jeopardy grounds.33

The Court did not find any constitutional violation by executing the prisoner a second time.34 It said, “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.”35 The decision appeared to align with the reasoning of In re Kemmler, that the method chosen by the legislature is deemed to be humane; a rare

25. Weems v. U.S., 217 U.S. 349, 382 (1910).

26 Id. at 373. 27 Id. 28 Id. at 373. 29 Id. at 378.

30. State of La. ex rel. Francis v. Resweber, 329 U.S. 459, 460 (1947). 31 Id. at 459. 32 Id. at 473.

33 Id. at 461. 34 Id. 35 Id. at 464.

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example of the suffering of one prisoner does not deem execution cruel and unusual punishment.36

Next came Trop v. Dulles, where the Court struck down a loss of citizenship for the petitioner after he was found guilty of desertion during wartime by court martial.37 The Court emphasized the VIII Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”38 Supreme Court precedence has not provided very much insight into the forms of capital punishment that would amount to cruel and unusual punishment. Often, it was expressed that the VIII Amendment should adapt to the times; however, application of that principle did not match the sentiment.

In the 1970s, advocates for the death penalty claimed that it is a necessary part of society to ensure the public knows criminals get “the punishment they ‘deserve[.]’”39 The death penalty was argued justifiable “by the social ends it was deemed to serve.”40 However, history shows that administering the death penalty has been far from consistent. Often, it has been an arbitrary sentence handed down while other offenders who committed similar crimes have not received the same punishment.

A breakthrough for anti death penalty proponents came in Furman v. Georgia and its companions when the Court overturned the sentence of death in two rape and one murder cases.41 The majority held the application of the death penalty violated the VIII and XIV Amendments in the instant cases where, under the Georgia statute, imposition of the penalty was left to the judge or jury.42 In all three cases, the jury imposed the death penalty.43 The concurring opinions detailed the long history of cruel and unusual punishment jurisprudence, discussed above, and finally made a concrete statement regarding capital punishment’s status under the VIII Amendment.44 The main contribution from Furman was the majority

36 Furman, 408 U.S. at 326 (Marshall, J., concurring).

37 Trop v. Dulles, 356 U.S. 86, 87 (1958).

38 Id. at 101.

39. Furman, 408 U.S. at 308 (Stewart, J., concurring).

40 Id. at 312 (White, J., concurring).

41 Id. at 240. (Douglas, J. concurring).

42 Id. 43 Id.

44 Id.

FEDERAL EXCLUSIONS

of the Court’s concern that the death penalty can be administered arbitrarily.45

In response to Furman, at least 35 states created statutes expressly stating when and for what crimes the death penalty can be administered.46 One such statute was challenged in Gregg v. Georgia 47 The Court upheld the state statute that had a lengthy procedural requirement before the sentence of death was imposed.48 The Court determined that punishment selected by a state’s legislature is granted the presumption of constitutional validity.49 The presumption remained as long as the punishment selected is “not cruelly inhumane or disproportionate to the crime involved.”50 It appears the Court maintained the principles of early VIII Amendment jurisprudence. Indeed, the Court took one step beyond Furman and expressly held that “the punishment of death does not invariably violate the Constitution.”51

The Court in Gregg was motivated by the belief that society was heavily in favor of implicating the death penalty in some instances. According to the majority, this reasoning was evidenced by the overwhelming state legislative reactions to Furman 52

In summary, through the 1970s it was determined that the death penalty was not unconstitutional, and the preferred methods of state legislatures will be presumed valid unless there is proof that the methods and application are inhumane or arbitrary. There are two remaining justifications for the death penalty: retribution and deterrence of capital crimes.53 However, following Furman and Gregg, the federal death penalty was not a hot button issue until the 1990s with Congress’s passage of a national Death Penalty Act. The Act’s purpose was to remove the arbitrariness of death penalty sentencing by providing a pre determined list of federal crimes worthy of execution as a sentence.

45 Id. at 253 (Douglas, J., concurring).

46 Corinna Barrett Lain, Deciding Death, 57 Duke L.J. 1, 17 (2007) https://sch olarship.law.duke.edu/cgi/viewcontent.cgi?article=1329&context=dlj.

47 Gregg v. Georgia, 428 U.S. 153 (1976).

48. Id. 49 Id. at 175. 50 Id. 51 Id. at 169. 52 Id. at 180 81. 53 Id. at 183.

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Executions Administered by Lethal Injection

Since the 1970s, the preferred method of federal and state executions has been lethal injection.54 It has been determined to be the more humane of all other proffered methods.55 Until the mid 2000s, lethal injection had typically been carried out using a combination of three drugs: an anesthetic, a paralyzing agent, and a drug that induces cardiac arrest.56

Due to ethical dilemmas among pharmaceutical companies and backlash from death penalty abolitionists, it became impossible to carry out federal executions due to drug shortages that were typically used.57 Since the 1960s there have only been three federal executions, all of which were carried out in the early 2000s.58 To ensure they were able to easily obtain the necessary drugs, some death penalty states switched to a single dose injection of pentobarbital.59

In its 2019 Protocol addendum, the federal government announced it would switch to using a single dose of pentobarbital as its method of lethal injection.60 However, the government obtained pentobarbital through back channels and companies who were not aware of the purpose for why the drug was being tested and developed.61 The government has argued that secrecy was necessary to procure the drugs, or else companies would not supply them due to public backlash.62 In contrast, abolitionists have argued such secrecy

54. Jonathan Allen, Special Report: How the Trump Administration Secured a Secret Supply of Execution Drugs, Reuters, (July 10, 2020, 7:13 AM), https://www. reuters.com/article/us usa executions specialreport idCAKBN24B1E4.

55 Id.

56 Lethal Injection: Overview, Death Penalty Info. Ctr., https://deathpenalty info.org/executions/lethal injectioner.

57. Allen, supra .

58. Fed. Bureau of Prisons, Capital Punishment, https://www.bop.gov/about /history/federal_executions.jsp.

59 Death Penalty Information Center, Overview of Lethal Injection Protocols (2022), https://deathpenaltyinfo.org/executions/lethal injection/overview of lethal injection protocols.

60. Press Release, DOJ, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse, (July 25, 2019), https://www.justice.gov/opa/pr/federal government resume capital punishment after nearly two decade lapse.

61 Allen, supra note 54.

62 Id.

creates skepticism as to whether these drugs cause prisoners unnecessary pain or trauma.63

In 2017, the Trump Administration began building a network of contractors known as “[C]ompounding [P]harmacies,” that custom make drugs to fit specific needs. For example, these companies can take a pill and turn it into liquid form for a patient who has trouble swallowing.64 These companies are not FDA approved and operate under less oversight than pharmaceutical companies.65 Some argue that such “shortcuts” could lead to an increase in contaminated or less effective drugs.66

These compounding pharmacies began sending their custommade drugs to laboratories for testing.67 Most of these labs had pledged to no longer test drugs that were to be used in the execution of prisoners.68 Because pentobarbital can be used for other purposes, such as euthanizing animals, company CEOs were surprised to learn the drug they were testing was intended to be used for prisoner executions.69

By 2018, court filings show the Trump Administration obtained a bulk manufacturer of powder pentobarbital and a compounding pharmacy willing to turn it into an injectable solution70 However, the pentobarbital developed for federal executions did not pass its first quality test because the compound contained impurities.71 However, the solution was refined and subsequently passed a quality test in February 2019.72 This allowed the Trump Administration to make plans to carry out federal executions for the first time in nearly two decades.

In July 2019, when AG Barr announced the 2019 Protocol, there was no reference to any sort of quality control for the administration of the drug.73 In fact, the Protocol made “no reference to the form or 63. Id. 64 Id. 65 Id. 66 Id. 67 Id. 68 Id. 69. Id. 70 Id. 71 Id. 72 Id. 73 Roane v. Barr (In re Fed Bureau of Prisons’ Execution Protocol Cases), 471 F. Supp. 3d 209, 216 (D.D.C. 2020).

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source of the drug” at all.74 Instead, it was a crude description of the generalized method for administering the injection.75 This minimal level of transparency raised legal challenges as to whether the Protocol was within the government’s statutory authority under the Federal Drug Act.76 However, the United States District Court of Appeals for the District of Columbia Circuit denied the Appellants’ challenge and reversed its earlier decision in April 2020.77

Following this decision, in June 2020, AG Barr scheduled the first prisoner, Daniel Lee, to be executed on July 13, 2020.78 The second prisoner, Wesley Purkey, was scheduled to be executed on July 15’, and the third prisoner, Honken, was scheduled for July 17.79 These fast tracked executions required the prisoners’ legal teams to file injunctions for their legal challenges to be adjudicated before the scheduled execution dates.80

Despite the stakes being so high, the government was not inclined to ensure all legal challenges were properly heard. Rather, it seemed that the prisoners hoped that courts would be required to make quick decisions, despite the dire consequences of an incorrect decision. The prisoners’ haste led to extraordinary emergency relief granted by the Supreme Court.

Challenging a Lethal Injection Method on VIII Amendment Grounds

The Court has never held that a method to deliver a lethal injection is unconstitutional on the grounds that it is cruel and unusual punishment. History shows that success on an VIII Amendment violation based on cruel and unusual punishment is an exceptionally high hurdle to clear.

A recent case, Glossip v. Gross, established that prisoners must show the “method presents a risk that is “‘sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.’”81 These imminent dangers “‘must be a

74 Id. 75 Id. 76 Id. 77 Roane v. Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 980 F.3d 123, 138 (D.C. Cir. 2020).

78 Id. at 128 . 79 Id. 80 Id. 81 Glossip v. Gross, 576 U.S. 863, 877 (2015) (quoting Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008)).

FEDERAL EXCLUSIONS

substantial risk of serious harm, an objectively intolerable risk of harm.’”82 The opinion suggests that the officials who carry out the injection must be blameless for the pain and suffering caused by the injection.83 Further, challengers must identify an alternative to the proffered method to be successful in their claim.84 The alternative method must be “‘feasible, readily implemented, and . . . significantly reduce[s] a substantial risk of severe pain.’”85 Glossip provided us with a clearer understanding of what the Court considered to be a viable, modern VIII Amendment claim when challenging an execution. The Court stated that “because some risk of pain is inherent in any method of execution . . . the Constitution does not require the avoidance of all risk of pain.”86 Stating further, “[W]hile most humans wish to die a painless death, many do not have that good fortune.”87 The Court said that deciding in the alternative would render the death penalty unconstitutional, and the Court was unwilling to make such a decision.88

Clearly, a successful VIII Amendment challenge is no easy feat given the fact that lethal injection has been argued to be a more humane method to execute a prisoner.89 The single dose of pentobarbital given to prisoners might not have cleared the high hurdle, but it did deserve a closer look than the Supreme Court gave it when denying Lee’s preliminary injunction in July 2020.90

ANALYSIS

The D.C. District Court Found the Prisoners Were Likely to Succeed on Their VIII Amendment Claim and Granted Their Preliminary Injunction

After the District of Columbia Court of Appeals decided the single dose of pentobarbital did not exceed the government’s

82 Id. 83 Id. 84 Id. at 867. 85 Id. 86 Id. at 869. 87. Id. 88 Id. at 880 81.

89 Jonathan Allen, Special Report: How the Trump Administration Secured a Secret Supply of Execution Drugs, Reuters, (July 10, 2020), https://www.reuters. com/article/us usa executions specialreport idCAKBN24B1E4.

90 Barr v. Lee, 140 S. Ct. 2590, 2591 92 (2020).

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statutory authority, the first group of prisoners selected to be executed attempted to preliminarily enjoin the government from executing them.91 Their names were: Daniel Lee, Alfred Bourgeois, Dustin Honken, and Wesley Purkey; Keith Nelson later joined their claims once he was scheduled to be executed in August 2020.92 The prisoners had several challenges in various courts concerning the new method of execution, and the prisoners sought injunctions to have more time to ensure their challenges were properly heard before a court.93 The government’s rush to schedule execution dates did not mean the courts were not willing to stay the executions.94

As discussed above, the prisoners had to establish the proffered method of execution was likely to cause them substantial harm and needless suffering, and they must offer alternatives available to the proffered method.95 Additionally, for a challenger to be granted a preliminary injunction, they must establish that they are likely to be successful on the merits of their claim, will suffer irreparable harm absent a preliminary injunction, the balance of equities is in their favor, and injunction is favorable to the public interest.96

On July 13, 2020, the D.C. District Court found the prisoners had satisfied the first requirement of a preliminary injunction by establishing an injection of pentobarbital was likely to cause the prisoners “extreme pain and needless suffering during their executions.”97 It cited the overwhelming scientific evidence provided by the prisoner’s experts.98 The experts determined that it was more than likely most or all of the prisoners would suffer from pulmonary edema.99 One doctor went so far as to state it was almost a medical certainty.100

91 Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 980 F.3d 123,125 (D.C. Cir. 2020). . 92. Id. at 128. 93 Id.

94 Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 471 F. Supp. 3d at 216.

95 Glossip, 576 U.S. at 877. 96 In re Fed. Bureau of Prisons’ Execution Protocol Cases, 955 F.3d 106, 111 (D.C. Cir. 2020).

97 Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 471 F. Supp. 3d at 218. 98 Id. 99 Id. 100 Id.

Eyewitnesses to executions that have used pentobarbital described prisoners “repeatedly gasping for breath or showing other signs of respiratory distress.”101 It was argued these accounts indicated the likelihood that flash pulmonary edema was common and extremely painful.102

When discussing the irreparable harm requirement of a preliminary injunction, the court found that by not granting the injunction, the prisoners would be unable to get judicial intervention regarding their VIII Amendment claims, and they would be executed under a proffered method that very well could be unconstitutional.103 The loss of life is essentially the definition of irreparable harm.

The court found that both of the final requirements were satisfied.104 It determined that the balance of equities was in favor of the prisoners because this was not a last minute effort to try and stay a long scheduled execution.105 Nearly all of the prisoners began filing challenges following the announcement of the 2019 Protocol.106 The government made efforts to preclude the challenges by scheduling quick execution dates and refusing to stay the executions.107 Based on this, the court determined that the public favored ensuring the executions were carried out constitutionally.108 Thus, the court determined that the final requirement for preliminary injunction was satisfied.109 While the court decided the prisoners were likely to succeed on their claim, it made no ruling as to any of the constitutional issues presented.110

The court agreed the prisoners provided sufficient alternative methods to just a single dose of pentobarbital for their executions.111 One alternative was to provide a shot of an opiate, such as morphine or fentanyl.112 It was argued that an opiate would significantly reduce the chances that the prisoners would experience severe pain and 101. Id. 102 Id. 103 Id. 104 Id. at 222 23. 105 Id. at 224. 106 Id. at 224. 107. Id. at 215. 108 Id. at 224. 109 Id. at 225. 110 Id. 111 Id. at 222. 112 Id. at 220.

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distress.113 At the very least, why would the government not consider using an opioid to reduce any chance of unnecessary pain or anguish for a prisoner being executed? It appeared it was reluctant to acknowledge the presence of scientific evidence that pointed to the likelihood of physical pain or discomfort. This was a prudent move, considering there would be more challenges to come.

The Supreme Court Granted Certiorari Before this Decision Made its Way Through the Appellate System and Vacated the Injunction Establishing Precedent for the Remaining Prisoners’ Claims.

On the day Daniel Lee was scheduled to be executed, the D.C. District Court determined he and several other prisoners were likely to succeed on an VIII Amendment challenge and granted a preliminary injunction.114 The D.C. Court of Appeals denied the government’s request to lift the injunction, stating the prisoner’s claim involved “novel and difficult constitutional questions” that required a proper court hearing to settle the matter.115 It expedited the appeal and set a deadline of July 24th for briefs.116 In the early morning of July 14th, the Supreme Court granted the government’s “emergency” request to vacate the injunction and granted its motion.117 Mere hours later, Daniel Lee was executed.118

The Court based its two page decision on the fact that states have used pentobarbital in “over 100 executions, without incident.”119 It cited the difficulty of overcoming an VIII Amendment challenge as sufficient justification to overturn the injunction.120

It noted that both sides had medical experts with conflicting testimony concerning when the harmful effects of pentobarbital occurred.121 The Court found the government’s expert opinion that pulmonary edema occurred “after the prisoner has died or been rendered fully insensate” more convincing than the likelihood of

113 Id. at 222.

114 Barr, 140 S. Ct. at 2592 (Breyer, J., dissenting).

115 Id.

116 Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 980 F.3d at 128.

117 Id. 118 Id.

119 Barr, 140 S. Ct. at 2591.

120 Id. at 2591.

121 Id.

FEDERAL EXCLUSIONS

pulmonary edema occurring before that.122 However, there was viable, competing evidence as to when pulmonary edema occurred.123 The government was not arguing that pulmonary edema did not occur from a pentobarbital injection 124 It was argued that the prisoners could not feel it.125 Should disputing medical evidence alone justify denying an unusual and extraordinary request for Supreme Court intervention before a lower court ruling on this issue? Let alone the fact there was conflicting testimony as to when the feeling of asphyxiation occurred?

The Court’s decision to grant the government’s emergency request set a dangerous precedent for the legal challenges raised by the remaining prisoners. It also foreshadowed the unlikelihood that a court could or would find for the remaining prisoners on any other VIII Amendment challenge to lethal injection using compounded pentobarbital.

One lower court decided the prisoners were likely to be successful on their VIII Amendment claim. The appellate court agreed the conflicting evidence was enough to stay the execution. At the very least, the court should have denied the government’s motion for an emergency decision and allowed the prisoner’s legal claims to be heard and decided by a lower court. Instead, it granted the emergency request before the judgment of the appellate court. A grant that is usually reserved only for cases that are “of such imperative public importance as to justify deviation from normal appellate practice.”126 The appellate court even ordered an expedited briefing schedule to hasten its decision, but the government would not wait for that.

In capital punishment cases, the irreparable harm suffered by the prisoners when an injunction is lifted is absolute. There would be no second chance for Daniel Lee. Would it not be in the best interest of the public and justice that these legal claims were adjudicated to the fullest? If for nothing more than to ensure they are executed humanely and constitutionally? Does our government owe this to an individual whose life is being cut short at its hand? 122 Id. 123 Id. 124 Id. 125 Id. 126 United States v. Higgs, 141 S. Ct. 645, 646 (2021) (Breyer, J., dissenting).

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Lee was the first instance in which the Court circumvented traditional procedure to grant the government’s extraordinary request; it will not be the last before the execution spree ends.

Following Lee, the Next Prisoner Was Executed Before His Legal Claims Were Fully Adjudicated.

Two days later, in a strikingly similar scenario, the D.C. District Court heard the consolidated remaining claims of Purkey, Honken, and Nelson.127 The prisoners were seeking a preliminary injunction to stay their executions for their claims of pentobarbital violating the constitution and various federal statutes to be adjudicated.128 While the court held most claims were without merit and they were bound by the Court’s decision in Lee, it found there was a likelihood of success if the use of pentobarbital violated the Food, Drug, and Cosmetics Act (FDCA).129 Partially due to the fact that the compounding pharmacies making the solution were not regulated and pentobarbital was not prescribed.130

The appellate court again denied the government’s request to vacate the lower court’s decision. Once again, the Supreme Court granted emergency relief to the government and vacated the district court’s preliminary injunction. Hours later, Wesley Purkey was executed.

The Supreme Court did not provide an opinion or any reasoning for its decision.131 It did not address the district court’s findings, which stated that lethal injection drugs are not determined to be humane under the FDCA. Instead, it simply granted the government’s request to speed up the execution of the prisoners.132

In Lee, the Court established the precedent that conflicting medical testimony as to when pulmonary edema occurs after injection, is an unlikely challenge to establish pentobarbital as cruel and unusual under the VIII Amendment.133 Now, it has established

127 Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 471 F. Supp. 3d at 217.

128 Id.

129. In Re Fed. Bureau of Prisons’ Execution Protocol Cases, 474 F. Supp. 3d 171, 182 (D.D.C. 2020).

130 Id. at 180.

131 Barr v. Purkey, 141 S. Ct. 196 (2020). 132 Id.

133 Barr, 140 S. Ct. at 2591.

FEDERAL EXCLUSIONS

the precedent that it would be unlikely for any remaining prisoner to establish that pentobarbital violates the FDCA.

Based on the early legal decisions on the challenges to these executions, it is hard to dispute that the government was in a rush to execute these prisoners, and that the Court was willing to provide it the route to do so. There were credible legal challenges to how these executions were administered. The Court failed to provide the prisoners the necessary overwatch to ensure that the government executed them constitutionally. These decisions allowed the government to execute as many prisoners as possible before there could be a change in the White House. The government took full advantage of the opportunity.

The Compounded Version of Pentobarbital Likely Caused Unnecessary Pain and Suffering That Was Downplayed by Those in the Execution Chambers.

An NPR article from September 2020 detailed the troubling effects of lethal injection, regardless of which drug was used.134 The autopsies of 200 prisoners executed by lethal injection revealed that roughly 84% of executed prisoners showed signs of pulmonary edema.135 In fact, some prisoners’ lungs were filled with so much froth, blood, and foam that they weighed nearly three times the normal weight of human lungs.136 The presence of froth showed doctors conducting the autopsies that prisoners were struggling for breath after the injections.137 Froth only forms when air is still passing through the lungs.138 The doctors who were interviewed for this article and conducted the autopsies have testified in courts across the country concerning their findings on the effects of lethal injection drugs.139

In Lee, the Court was presented with plausible evidence that pentobarbital would most likely cause pulmonary edema but still

134 Noah Caldwell, Ailsa Chang, & Jolie Myers, Gasping for Air: Autopsies Reveal Troubling Effects of Lethal Injection, NPR, (Sept. 21, 2020, 7:00 AM), https://www.npr.org/2020/09/21/793177589/gasping for air autopsies reveal troubling effects of lethal injection. 135 Id. 136 Id. 137 Id. 138 Id. 139 Id.

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allowed the executions to carry forward.140 It concluded that disputing medical evidence was not sufficient justification to delay the executions.141 The Court’s decisions concerning the subsequent executions were likely due to the testimony provided by execution officials who downplayed what they saw in the chambers in Terre Haute, Indiana.142

According to the Associated Press, who witnessed all of the executions carried out by the Trump Administration, the prisoners’ stomachs “heav[ed]” and “rolled” during at least half of the executions.143 However, these jerking movements were left out of the accounts made by the executioners and government officials who were present.144 Most described the prisoners as drifting to sleep in comfort before letting out a snore as their final breath.145 These official accounts were used by the courts to justify the executions carried out after Lee 146 The government used expert medical witnesses to dispute the pulmonary edema claim.147 One such witness did not witness any of the executions firsthand.148 She relied on the accounts of the executioners, who intentionally downplayed the effects of pentobarbital.149

The media reported the prisoner’s stomachs heaving and rolling after the injection of pentobarbital, but they were not able to hear if any of those executed cried out in pain or agony.150 The audio to the execution chamber was cut off before the administration of the pentobarbital.151 However, a spiritual advisor, who was present in the room for an execution in January, stated the prisoner complained that his “hands and mouth were burning” following the injection.152

140 Barr, 140 S. Ct. at 2592. 141 Id. at 2590 92.

142. Michael Tarm, Executioners Sanitized Accounts of Deaths in Federal Cases, AP News, (Feb. 17, 2021), https://apnews.com/article/executioners sani tized accounts of death 25d133f59039150c2e308ba1a2a5caef

143 Id 144 Id. 145 Id. 146 Id. 147. Id. 148 Id. 149 Id. 150 Id. 151 Id. 152 Id.

Unfortunately, no one in the government witness room acknowledged they heard this proclamation.153

As the government argued in Lee, there is no way to tell if the prisoners who were executed could feel the effects of pulmonary edema prior to their life being extinguished.154 But the eyewitness accounts suggest the bodies heaving and rolling were consistent with the body struggling to breathe.155 Unfortunately, the Government has not provided public access to the prisoner’s brain waves or heart rates before their deaths.156 This information could help us understand whether they were feeling the effects of pulmonary edema prior to losing consciousness.

The VIII Amendment challenges raised by the first prisoners executed by the Trump Administration established the likelihood of experiencing pulmonary edema. The Supreme Court decided the prisoners’ claims were unlikely to succeed and allowed the executions to continue. However, eyewitness accounts to these executions confirmed the likelihood that pulmonary edema occurred while at least half of the prisoners were executed. There was and continues to be conflicting medical testimony as to the effects of pentobarbital on the human body that should have been fully adjudicated before the executions were carried out.

CONCLUSION

“The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.”157 These words were written in the Court’s opinion in the mid Twentieth Century and remained true under the Trump Administration.

The use of pentobarbital in executions has been shown in the autopsies of prisoners to cause pulmonary edema. Whether the prisoners experienced the sensation of drowning and asphyxiation prior to dying is still unclear. However, there are indications that it was possible for the prisoners to feel the effects before their life ended. Regardless, the speed at which the government executed these prisoners would never allow us to know the answer. That, taken with 153 Id. 154 Id. 155 Id. 156 Id. 157 Resweber, 329 U.S. at 464.

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the Supreme Court clearing the way for the executions to proceed by granting the government extraordinary relief, should raise eyebrows.

In Lee, the Government vacated the stay of the execution during the early morning hours of July 14. Just hours later, Lee was executed.158 The haste at which this was done is appalling. The truly troubling part is that this was the norm in the majority of the executions carried out. It was an unimaginable spree of executions despite valid legal challenges. Whether or not one supports capital punishment, we as Americans need to at least acknowledge that these prisoners were entitled to a constitutional execution.

If pentobarbital does not cause pain and suffering, then why are government officials sanitizing reports at executions, and why is there so much secrecy surrounding the process? Could the executions have been delayed until the lower courts could hear arguments and process the complicated scientific data? Why did the government incessantly pursue the executions? Why did they force the prisoner’s lawyers to file frantic preliminary injunction requests so their claims could be fully heard?

As Justice Sotomayor wrote, “This [was] not justice.”

159 This was the follow through of a political promise made by President Trump and the Republican Party. These were executions authorized by a conservative majority on the Court, and those executed deserved more from our judicial system.

158 Barr, 140 S. Ct. at 2592.

159 United States v. Higgs, 141 S. Ct. 645, 647 (2021) (Sotomayor, J., dissenting).

A SANE PROPOSAL FOR THE MENTALLY ILL: ARE THEIR SECOND AMENDMENT RIGHTS DEAD?

RAYGEN L. LEE *

ABSTRACT…. .....................................................................................36

INTRODUCTION 37

BACKGROUND.....................................................................................39

Understanding Mental Illness 40 Appropriate Studies 42 Understanding Involuntary Commitment 44 Legislative Consequences .................................................45 Court Considerations..............................................................48

What Heller Says 49 Lessons from the Circuit Courts........................................53 Past Proposals Regarding the Gun Control Act 57

ARGUMENT….....................................................................................59

The Discriminatory View in Current Legislation 61 Correcting the Overwhelming Stigma 62 Prioritizing Appropriate Statistics.....................................65

Current Legislation and Its Devastating Consequences 66 Misconstrued “Historical Support” used to Prohibit Firearm Possession 68 The Appropriate Standard of Review .....................................70 Heller’s Intermediate Scrutiny Application ......................71 The Supreme Court Should Adopt the Sixth Circuit Analysis........................................................................73

PROVIDING A LEGISLATIVE 75

CONCLUSION.. ....................................................................................76

* Raygen L. Lee, Staff Editor, Texas Tech Law Review, J.D. Candidate, May 2022, Texas Tech School of Law; B.A. Psychology, 2019, Warner University. The author wishes to thank Dean Jack Wade Nowlin, Professor Jamie Baker, Professor John Watts, John Kirby, and Joey Best for their editorial contributions and feedback throughout the writing process of this Article

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The focus of this Article is on individuals whose constitutional rights are being infringed upon because they have been involuntarily committed. 18 U.S.C. § 922 (g)(4) provides a lifelong ban of gun possession to anyone who has ever been involuntarily committed. The purpose of this Article is to draw attention to the most concerning issue; many individuals do not have any type of avenue to regain their constitutional right and are thus prohibited from exercising a fundamental constitutional right for the rest of their lives.

The unfortunate sub issue of the misconstrued stigma against the mentally ill population and the scapegoating technique used to prejudice the mentally ill community is prevalent throughout this Article as these societal issues drive the legal issue at hand. After reading this Article, a clearer understanding of what mental illness looks like, and more specifically how that translates into involuntary commitment, will be achieved. This understanding is necessary for society and our government to take steps towards righting the wrong done upon this group of people.

The proposal provided here is a detailed yet efficient solution to the current constitutional infringement. The solution incorporates both the legislative and judicial branches of power, which is crucial as neither alone can resolve this constitutional infringement. The legislative branch needs to write an avenue for individuals who have been stripped of their Second Amendment right to resort to in attempt to regain a fundamental constitutional right. The most practical and best entity to hear such a case is the appropriate federal district court.

However, federal district courts do not currently have standing over this issue due to the current language in 18 U.S.C. § 925. Thus, the code should explicitly replace the current written avenues that do not practically exist due to defunding with the federal district courts as the avenue to hear such cases. This resolves the standing issue that federal district courts currently have and satisfies the government’s interest to protect the general public without infringing upon individual’s constitutional rights. Unlike other proposals, this Article provides a practical solution that protects individuals’ constitutional rights, while also safeguarding the government’s compelling interest.

INTRODUCTION

Clifford Charles Tyler is currently being forced to live a life without the freedom to exercise his Second Amendment right to bear arms.1 Tyler is without even an opportunity to potentially regain this right.2 The current legislation has forced Tyler to live in a world without the Second Amendment until the day he dies.3 Before Tyler was forced to live without a fundamental constitutional right he was a happily married man focusing his life on building his family and live his normal day to day life.4 Unfortunately for Tyler, his life took a devastating and unexpected turn that resulted in a loss of everything he once knew.5

Tyler arrived home one day to see his wife the mother of his children had packed up and left their home to live with a man with whom she was engaged in a secret affair.6 Consistent with most of the population this caused an immediate emotional reaction from Tyler.7 As he is trying to understand this new life of his, Tyler enters a depressive episode.8 Shortly following, Tyler’s daughter came home and saw him out of character, as he was typically a happy individual.9 Tyler was emotionally distraught as his entire life as he knew it was up in flames and in all intents and purposes gone.10

Scared and concerned Tyler’s daughter stepped out of her role as a daughter and did what she thought was appropriate for the situation.11 She made the call and had her father involuntarily committed to seek psychiatric assistance.12 There Tyler exemplified characteristics of a depressive episode and was deemed to be a danger to himself.13 Approximately four weeks later Tyler was released from involuntary commitment as there was no longer indication that he was a danger to himself.14

1 Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 683 (2016).

2. See id. at 682 83. 3. See id. 4 Id. at 683.

5 See id 6 Id. 7 See id 8 Id. at 681.

9. See id. at 683.

10 See id. at 683 84. 11 Id. at 683.

12 Id. 13 Id. 14 Id.

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Following his release, Tyler re entered society as a productive member who worked, hard and continued to be the family man he has always been.15 Tyler eventually remarried and continued a strong relationship with his children.16 Additionally, Tyler continued to illustrate a “clean bill of health” and never again illustrated anything that would deem him a danger to himself or others.17 However, Tyler’s one depressive episode has become a nightmare that haunts him to this day.18 18 U.S.C. §925(g)(4) strictly prohibits Tyler from ever owning a firearm for the rest of his life. Because Tyler was involuntarily committed, he will never have the opportunity to exercise the Second Amendment.19

This Article focuses on individuals like Tyler whose constitutional rights are being infringed upon, without an avenue to remedy such infringement. Understanding the mentally ill population and more specifically, those who have been involuntarily committed due to mental illness, is crucial to fully comprehend the severity of this constitutional violation. This Article illustrates the stigmatized view and overwhelming discrimination against the mentally ill population. Additionally, this stigmatized view has led to the mentally ill population serving as the scapegoat for our nation’s firearm violence. The legislative consequences and endorsement of this stigmatized belief is also critical to understand so the Court and Congress can make the necessary changes to resolve this constitutional violation.

A current circuit split between the Sixth Circuit Court and the Ninth Circuit Court has fore fronted this article. Tyler v. Hillside (from the Sixth Circuit Court) and Mai v. United States (from the Ninth Circuit Court) has left many confused on this constitutional issue and has resulted in continuing constitutional infringements for those within the Ninth Circuit. These circuit courts, and many district courts have disagreed on the appropriate analysis required for this constitutional issue as 18 U.S.C. § 922 exists with many unconstitutional flaws in application.

This Article proposes a unique, yet simple and efficient proposal, that has not been suggested by other scholarly articles. Congress needs to replace the current language in 18 U.S.C. § 925 and

15 Id. at 683 84.

16 Id.

17 Id. at 681.

18 See id. at 683 84.

19 Id.at 684; 18 U.S.C. § 922(g)(4).

explicitly allow federal district courts to hear cases of individuals who wish to advocate reinstatement of their Second Amendment right. This would provide individuals like Tyler an opportunity to regain their Second Amendment rights. If one can prove that they are no longer a danger to themselves or others, then the district court should use its discretion to possibly reinstate an individual’s Second Amendment right. If the language is changed to what this Article strongly suggests, then the federal district court’s docket would shift from determining whether a constitutional violation exists as seen in Tyler and Mai to merely determining if an individual should be able to regain their Second Amendment right after being placed on the prohibited list due to involuntary commitment.

Understanding and treating those with mental illness with compassion is a mindset this nation needs to engage in. The Second Amendment likewise needs to be protected as it exists as a fundamental right for American citizens and has existed as a core part of our nation from the foundation. After recognizing the current constitutional violation, the next step for our nation is to fight for these individuals’ constitutional rights with the same zealousness that is fought for others.

BACKGROUND

Currently, individuals who have ever been involuntarily committed are banned from possessing a firearm for the rest of their lives.20 The right to possess a firearm is a fundamental constitutional right;21 yet, many individuals do not have any type of recourse or avenue to attempt to regain such right.22 The objective behind this lifelong ban is to ensure the safety of our country.23 The fear of individuals with mental illness greatly influences how those who have been involuntarily committed are treated.24

To gain the necessary insight to remedy this unconstitutional provision, we must first understand mental illness by examining appropriate studies, the process of involuntary commitment, and the legislative consequences of a stigmatized view of the mentally ill

20 Id. § 922(g)(4).

21. D.C. v. Heller, 554 U.S. 570, 593 94 (2008).

22 Id. § 922(g)(4); 18 U.S.C. § 925; Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 689 (2016).

23 See D.C., 554 U.S. at 626 27.

24 Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 2, 23 (2013).

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population.25 Second, insight from case law that illustrates how the circuit courts have grappled with this issue, and precedent regarding the Second Amendment must be examined including cases such as, Heller from the Supreme Court as well as Tyler and Mai from two different circuit courts.26 Finally, we must look to past proposals to fully understand where they fell short and why the proposal in this Article is the most appropriate to remedy this constitutional violation.27 Gaining a better understanding of the mentally ill population, what stigmatized views lead us to where we are at now, and reconciling case law will provide the necessary insight to remedy this unconstitutional provision.

Understanding Mental Illness

Mental illness is different for each situation dependent on numerous life factors.28 There are many diagnoses that all provide distinctive challenges and are caused by unique circumstances.29 Further, a mental illness diagnosis typically can have several different symptoms varying in severity depending on the individual and other surrounding factors.30

Psychology is an area of science that continues to grow significantly as time passes.31 Throughout history those who were mentally ill carried a stigma that equated their mental illness to being dangerous.32 As the field of psychology continues to develop many statistics directly negate the long held belief that mental illness equates to dangerousness. 33 In the past mental illness was so misconstrued that the practiced treatment was drilling holes in an

25 See infra Part A. 26. See infra Part B. 27. See infra Part C.

28 See Vars & Young, supra note 25, at 12 16.

29 See id.; See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUM BEHAV., No.6, 685, 686 (2006).

30 See Silver, supra note 30.

31. Ingrid G. Farreras, History of Mental Illness, NOBA TEXTBOOK SERIES, https://nobaproject.com/modules/history of mental illness (last visited Dec. 8, 2020).

32 See Vars & Young, supra note 25, at 23; See Silver, supra note 30, at 695 96.

33 See id

individual’s skull.34 More recently, and still existing to this day, is the belief that demonic possession is the cause for mental illness and is thus treated through exorcisms.35 The more we learn about the science involved with mental illness the more evidence illustrates that our past reality was most likely false.36 As science continues to develop it becomes more evident that mental illness encompasses so many unique individuals with unique challenges that grouping them under one category is difficult at best.37

Understanding the historical development of psychology is important because the previous misinformation led to a stigmatized view of the mentally ill population which continues to burden them to this day.38 The government’s concern for the public’s health and safety has fore fronted all conversations relating to gun rights for those who have been involuntarily committed.39 However, this concern along with the historical misconception of mental illness has furthered the stigma that those who have mental illness are dangerous.40

Leaders, including the Vice President of the National Rifle Association (NRA), directly contribute to the mislabeling of the mentally ill population.41 When discussing a mass shooting on a military base, LaPierre, the NRA Vice President, called for a stronger action against the mentally ill population and wished to place even stricter gun regulations.42 In 2013, a mass shooting occurred in Washington Navy Yard leaving thirteen individuals dead, including the shooter.43 Upon investigation it was discovered that the shooter had reported psychiatric struggles.44 In response to this mass

34 Farreras, supra note 32. (Near 6500 B.C. this technique was a common practice and one of the only ways to “treat” insanity.) 35 Id.

36. See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV. 1439, 1447 (2015). 37 See id. 38 See id. at 1470. 39 See id. 40 See id. at 1443.

41 Reuters Staff, NRA Chiec Criticizes Navy Yard for Being ‘Unprotected’ Before Mass Shooting, REUTERS (Sept. 22, 2013), https://www.reuters.com /article/us usa guns/nra chief criticizes navy yard for being unprotectedbefore mass shooting idUSBRE98L0C920130922. 42 Id. 43 Id. 44 Id.

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shooting, committed by someone who was mentally ill, LaPierre called for more guns to the “good guys” with the assumption that the more good guys with guns the better protected society will be.45 Unfortunately, this stigmatized language from our nation’s leaders strongly encourages the stigmatized belief that those with mental illness are a direct danger to society.46

Further, accurately understanding mental illness is directly tied to understanding the legal issue at hand. The constitutional issue arises from the prohibition of gun possession for those who have been involuntarily committed or deemed as a mental defect.47 Those who are prohibited due to involuntary commitment is the primary focus of this Article, however understanding mental illness on a broad level and how the group is treated is necessary to understand how the law applies to these individuals.48

Appropriate Studies

There are many studies that view the intersection of mental health and gun violence, but several studies are skewed and inaccurately present the data.49 Many statistics regarding mental illness and violence compare violent acts to individuals who are mentally ill or not mentally ill.50 This information is helpful when the concern is solely on the public safety; however, the statistics likely skew the view on mental illness and reality as a whole.51 The reality is that “incidence of violent acts, including homicide, has no significant relationship to mental illness.”52 A study of a community of residents concluded that “6.81% of people with a serious mental illness reported violent behavior in the past year as compared with only

45 Id. 46. See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. Rev. 1439, 1455 (2015).

47 See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 681 (2016).

48 See id.; See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 Law & Human Behavior, No.6, 685, 689 (2006).

49 See Silver, supra note 49, at 686.

50. Id. 51 See id.

52 Calvin J. Frederick, Dangerous Behavior: A Problem in Law and Mental Health, U.S. DEP’T OF JUST OFF OF JUST PROGRAMS 4 (1978), https://www.ojp .gov/ncjrs/virtual library/abstracts/dangerous behavior problem law and mental health.

2.05% of people without a major mental disorder.”53 However, this percentage was admittedly highest in patients with schizophrenia, as these individuals were also the most likely to use weapons.54

One of the most important studies regarding violent tendencies in the mentally ill population, is one conducted by MacArthur Foundation which compared violent tendencies from individuals who were discharged from facilities.55 When these patients were discharged their violent acts were compared to their neighbors, who were not previously committed.56 The study concluded that, (when excluding substance abusers) “the prevalence of violence by patients was no higher than by neighbors.”57 Even further, the study shows that “among acts of violence, actual or threatened weapon use was significantly less likely among patients” than their neighbors.58 This updated knowledge highlights the lack of violent tendencies in individuals who have been released from facilities, solidifying that they do not actually pose a higher risk to society than individuals who have never been committed to a facility.59

The study provided by the MacArthur Foundation exemplifies the most accurate representation of the current data. This study was conducted without proof of confirmation bias, like many other studies which focus solely on protecting the masses from these

53 Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV 1, 14 15 (2013) (“The diagnoses considered schizophrenia, major depression, mania or bipolar disorder, alcohol or drug abuse or dependence, obsessive compulsive disorder, panic disorder, and phobia.”)

54 See id. (The 4% difference between those what a severe mental illness and those without is significantly less dramatic once the patients with schizophrenia are removed from the data.) A study conducted by Seena Fazel and his collogues concluded that schizophrenics were the most likely to commit homicide, significantly higher than any other mental illness.

55. See Vars & Young, supra note 54, at 16 17 (This is the most appropriate study when considering this constitutional issue because 18 U.S.C. § 922 dictates that individuals who have been involuntarily committed cannot possess a firearm.);

See 18 U.S.C. § 922(g)(4).

56 Id. at 14 15.

57 Id. at 16.

58. Id.

59 Id. (This conclusion of and the study does not include those who have a substance abuse issue, or are schizophrenic, due to each of those specified groups skewering the results. This is an appropriate measure, as outliers are regularly eliminated from final conclusions of data. The only push back with eliminating these groups is the underlying stigma that innates people to be scared).

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dangerous individuals. Understanding the complete data from an objective point of view has provided a more accurate picture of the mentally ill population and specifically how they compare to the rest of the population with regards to dangerousness.

Understanding Involuntary Commitment

If an individual is declared to be a danger to themselves or others they could be involuntarily committed, most commonly by someone in their life who notices the dangerousness of their behavior.60 A series of legal avenues must take place before someone is involuntarily committed.61 Each state has their own specific steps and requirements but many states include petitioning to a magistrate judge62 (to involuntarily commit someone else), who then orders a custody order to have that person brought to a facility to receive a complete examination.63

Once the initial examination is completed, the examiner can recommend involuntary commitment if they deem that the patient meets the criteria.64 If a patient is deemed to need involuntary commitment they are then transported “to a 24 hour facility where a second exam occurs by a physician. If the patient still meets criteria for an involuntary commitment, the patient receives treatment and is held in the 24 hour facility until a court hearing.”65 Depending on the state, a court hearing is held in a district court within a short amount of time; North Carolina’s being 10 days after the custody order.66 The

60. John A. Menninger, Involuntary Treatment: Hospitalization and Medications, BROWN UNIV 1, https://www.brown.edu/Courses/BI_278/Other/Cler kship/Didactics/Readings/INVOLUNTARY%20TREATMENT.pdf (last visited Dec. 8, 2020)

61 Involuntary Commitment, N.C. HEALTHCARE ASS’N, https://www.ncha.org/ ivc bill involuntary commitment/#1543438516731 3b90b933 3e47 (last visited Dec. 8, 2020); DJ Jaffe, Involuntary Treatment and Involuntary Commitment Laws: Basis in Law and History, MENTAL ILLNESS POL’Y ORG. https://mentalillness policy.org/ivc/involuntary commitment concepts.html (last visited Dec. 8, 2020) (Typically, an individual will have a court or administrative hearing to decide whether an individual is considered dangerous.)

62 Id. (In many cases this is illustrated by a loved one, doctor, or someone who is not the person being committed, advocating to a judge or agency to involuntarily commit an individual.)

63 Involuntary Commitment, supra note 65. 64 See id. 65 See id. 66 See id.

court hearing will conclude with either a court ordered treatment or discharge from the facility.67 An individual will be involuntarily committed if the court at this point declares that the individuals needs this serious treatment.68

The nature of involuntary commitment requires these extensive measures because involuntary commitment strips an individual of almost every closely held freedom that Americans presume they will always have.69 Each state has the power to determine what steps they judge as being necessary to ensure that they are only involuntarily committing individuals who are truly a danger to themselves or others.70

During involuntary commitment an individual is observed, often diagnosed, and almost always treated to ensure they reach a level of safety and are no longer a danger to themselves or others.71 Once an individual is deemed to not be a danger to themselves or others they are released from involuntary commitment and begin to regain their basic human rights, and some of their constitutional rights.72 This article focuses specifically on the lack of ability to regain their Second Amendment rights to possess a firearm for their entire life.73

Legislative Consequences

The Gun Control Act was passed in 1968 in an attempt to halt the increase of gun violence throughout the United States.74 This 1968

67. See id.

68. See id.; Position Statement 22: Involuntary Mental Health Treatment, MENTAL HEALTH AM https://www.mhanational.org/issues/position statement 22 involuntary mental health treatment (last visited Dec. 8, 2020).

69 See id. 70 See id.

71. See Position Statement 22: Involuntary Mental Health Treatment, supra note 72; Washington v. Harper, 494 U.S. 210 (1990) (Ensuring that individuals almost always have the right to refuse medication, even if it is recommended treatment, to protect what little autonomy involuntarily committed individuals have).

72 See John A. Menninger, Involuntary Treatment: Hospitalization and Medications, BROWN UNIV 3, https://www.brown.edu/Courses/BI_278/Other/Cler kship/Didactics/Readings/INVOLUNTARY%20TREATMENT.pdf (last visited Dec. 8, 2020); See Position Statement 22: Involuntary Mental Health Treatment, supra note 72.

73 See 18 U.S.C. § 922(g)(4).

74 Gun Control Act of 1968, 18 U.S.C. §§ 921 28 (1968), https://www.gov info gov/content/pkg/STATUTE 82/pdf/STATUTE 82 Pg1213 2.pdf#page=4.

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code has had additions but minimal changes throughout the years.75 In an attempt to protect the nation as a whole the Gun Control Act provides a laundry list of individuals who are prohibited from possessing a firearm.76 This article focuses on the group of individuals who are declared to be “of mental defect” or involuntarily “committed to a mental institution.”77

One of the most significant and serious aspects of the Gun Control Act is that the prohibition is perpetual.78 The Gun Control Act included exceptions and avenues for individuals to regain their Second Amendment right, if they were a part of a class that was stripped of such right.79 Exceptions for individuals who have been involuntarily committed are provided in 18 U.S.C. § 925 in the “Relief from Disabilities.”80 This effectively provided two options for individuals to try to regain their Second Amendment right: apply to the Attorney General or apply through your state in an approved program.81 The Attorney General has discretion to grant an individual their gun rights back if it “established to his satisfaction that the circumstances regarding the disability, and the applicants record and

75. 18 U.S.C. § 922(g)(4) (2015). (These minimal changes include language which furthered a stigma against those with Mental illness.); Id.

76 Id. § 922(g) (Prohibiting gun possession from individuals who have “been convicted . . . of a crime punishable by imprisonment for a term exceeding one year”; “a fugitive from justice”; “an unlawful user of or addicted to any controlled substance” ; “who has been adjudicated as a mental defective or who has been committed to a mental institution” ; “who, being an alien is illegally or unlawfully in the United States; or except as provided in subsection (y)(2), has been admitted to the United States under nonimmigrant visa” ; “who has been discharged from the Armed Forces under dishonorable conditions” ; “who, having been a citizen of the United States, has renounced his citizenship” ; “who has been convicted in any court of a misdemeanor crime of domestic violence”)

77 Id. § 922(g)(4); See Gun Control Act of 1968, 18 U.S.C. §§ 921 28 (1968), https://www.govinfo.gov/content/pkg/STATUTE 82/pdf/STATUTE 82 Pg1213 2.pdf#page=4. (Explaining that those who have voluntarily been committed to a mental institution are not included in this prohibition list, leaving only those who have been involuntarily committed. The specification “committed to a mental institution” was an attempt to clarify the already existing language “of mental defect” as congress wan ted to explicitly include those who had been involuntarily committed to this prohibited list.)

78. Id.

79 Id. § 925.

80 Id.

81 Id. It is important to note that not every state has an approved program eliminating one of the two possible avenues for reinstating their Second Amendment right.

reputation, are such that the applicant will not be likely to act in a manner dangerous to pubic and that the granting of relief would not be contrary to the public interest.”82 If, and only if, the Attorney General denies the request may an individual look to their federal district court for judicial review of their denial.83

In 1992 congress defunded the program for the Attorney General to review these issues, so in all intents and purposes 18 U.S.C. § 925 does not exist for individuals to regain their Second Amendment right.84 This program is also very unlikely to regain any funding due to the increasing concern for gun violence and the lack of political push to ensure constitutional rights are not being infringed upon by individuals who were at one point mentally ill.85 An even larger roadblock with the funding of this program is that this is the same program which oversees whether a felon (or anyone else in the prohibition list) can regain their gun possession rights.86 In reality there will never be a strong political agenda or encouragement to advocate for those who are convicted felons or likewise unpopular to the general public.

Without the Attorney General having the funding to review and make a decision on these issues the federal district courts do not have standing to hear the cases.87 What once provided an option and backup judicial option, now provides absolutely no relief for individuals to regain their gun possession rights.88 Noting the serious issue with this congress provided financial incentives for states to adopt a similar program allowing some avenue for relief.89 The voluntary nature of this state program has resulted in at least twenty states lacking such program.90 These individuals are who need to be addressed first and foremost as “the most serious constitutional issues must be addressed first.”91

82. Id. § 925 (a)(4).

83 Id.

84 See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 697 (2016).

85 See id.

86 See id.

87 Id. at 682; See § 925.

88. See § 925.

89 See Tyler, 837 F.3d at 682.

90 Id. at 683.

91 The NICS Improvement Amendments Act of 2007, BUREAU OF JUST STAT , http://www.bjs.gov/index.cfm?ty=tp&tid=491#promising (last visited Dec. 8, 2020).

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When considering the constitutional right for individuals with mental illness to possess firearms, it is important to understand the Second Amendment jurisprudence. The landmark case for the Second Amendment has a relatively recent history.92 District of Columbia v. Heller clarified that the right to bear arms is available for individuals throughout the United States as an exercise of self defense.93 Unlike many other constitutional rights, the Second Amendment is limited strictly based on the individual.94 18 U.S.C. § 922 (g) provides the list of individuals who are prohibited to exercise their Second Amendment right.95 Although Heller is the landmark case for this issue, it has provided different interpretations leading to many applications for courts moving forward.96 This has led to a circuit split between the sixth circuit court and ninth circuit court.97 This circuit split needs to be resolved by the Supreme Court as this split in decision revolves around an infringement on individuals fundamentally constitutional right.98

To understand what Heller has provided and where differences lie we must first examine what exactly Heller explicitly says, what can confidently be inferred and what Heller does not say. Two areas of difference when interpreting Heller include the historical support,99 that the court has to prohibit firearm possession for those who have been involuntarily committed, and the appropriate level of scrutiny to review such issue.100 After an understanding of exactly where Heller leaves us, the circuit court decisions will be examined as the two have somewhat similar analysis but come to opposite decisions.101

92 See D.C. v. Heller, 554 U.S. 570, (2008).

93 Id. at 606.

94 See 18 U.S.C. § 922(g)(4); See D.C., 554 U.S. at 626 27.

95 Id.; See supra Part II(A)(3).

96 See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, (2016); See Mai v. United States, 2018 U.S. Dist. Lexis 21020.

97 Id. 98 Id.

99 See infra Part II(B)(1)(a).

100 See infra Part II(B)(1)(b).

101 See infra Part II(B)(2).

What Heller Says

The founding fathers of our nation specifically included the Second Amendment in our constitution; however, Heller officially allowed the Second Amendment to apply to citizens of the United States.102 The broad consensus of Heller is that the Second Amendment is a fundamental right for all individuals;103 however, consistent with every other constitutional right, the Second Amendment is limited.104

Heller addressed whether a total ban on handguns under D.C. code violated a constitutional right to bear arms.105 To answer this the Court had to first determine if the right to bear arms was truly a right for individuals to carry firearms as a means of self-defense.106 The Court followed a textualist analysis as the opinion was written by Justice Scalia and looked at the plain meaning of the constitution.107

The fact that the “constitution was meant to be understood by voters” further encouraged an analysis around the plain meaning of the text.108 The right for a well rounded militia would only exist if individuals were able to carry firearms.109 Thus, the Court concluded that the prohibition on handguns as a whole violated the Second Amendment and unconstitutionally infringed upon a fundamental right for “all Americans.”110

After looking at the constitution Heller provided that we start with a strong presumption that “the Second Amendment right is exercised individually and belongs to all Americans.”111 From this language “it would seem clear that those who have been involuntarily committed, like all other Americans have the right to bear arms.”112 The Supreme Court spoke in support of individuals right to bear arms as a “fundamental right of law abiding, responsible citizens” but is

102. See D.C. v. Heller, 554 U.S. 570, 589 (2008); U.S. Const. amend II. 103 Id. at 594 95.

104 Id. at 621. 105 Id. at 573.

106 Id. at 624 25.

107 See id. at 604.

108. See id. at 576.

109 See id. at 579. 110 Id. at 581.

111 Id.

112 Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV 1, 5 (2013).

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now in a position to possibly contradict the crucial rights provided to Americans.113

“Longstanding” Historical Support

The Court later provides a stricter view on the matter by suggesting that “nothing cast doubt on longstanding prohibition on the possession of guns to felons and the mentally ill”. 114 This longstanding history is controversial, and many have differing opinions on where (if anywhere) the court found this longstanding history.115 Although justices of the peace traditionally had greater power to confine individuals with dangerous mental impairments, there is no historical basis for deprivations of gun rights after release from a mental institution or similar institution that regulates dangerous individuals’ behavior.116

Justice Breyer, in a dissenting opinion in Heller, provided that when an infringement of the Second Amendment arises, the question is whether a regulation infringes on the Second Amendment to an unconstitutional degree.117 Justice Breyer continued by explaining that an infringement on an individual’s right is a regular and constitutional act when it is in furtherance of government interests.118 Heller provided that prohibition of individuals who are mentally ill is presumptively lawful.119 It is important to note that Heller did not explicitly extend this prohibition to someone who was once mentally ill but no longer struggles with mental illness.120 Heller was silent on these individuals and provided the assumption that if someone has ever been mentally ill they will forever be mentally ill.121

113. See D.C. v. Heller, 554 U.S. 570, 635 (2008).

114. Vars & Young, supra note 116, at 5 (emphasis added, there continues to be debates on the historical support for the ban on gun possession when discussing the constitutionality of the gun possession ban).

115 See D.C., 554 U.S. at 626 27; See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 685 86 (2016).

116 See Vars & Young, supra note 116, at 7.

117. Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1061 (2020); 554 U.S. at 687 88.

118 D.C., 554 U.S. at 687 88.

119 Id. at 626 27.

120 Id.

121 See id.

Level of Scrutiny

The level of scrutiny which a legal issue is analyzed under is a critical factor in determining how a legal issue will resolve.122 There are three basic levels of scrutiny courts use with each level requiring more compelling evidence the lowest level being rational basis, secondly intermediate scrutiny and finally the highest level of scrutiny is strict scrutiny.123 Applying the appropriate scrutiny is crucial when analyzing a legal issue because the evidence necessary changes significantly.124

As the highest level of scrutiny for courts to apply; strict scrutiny requires that the government’s regulation be narrowly tailored to a compelling state interest.125 Strict scrutiny fails if any other means, that is less burdensome still satisfies the compelling government interest.126 In other words, it must be the least restrictive avenue to accomplish a compelling government interest.127

Intermediate scrutiny is a higher level of scrutiny than rational basis but does not have to be the absolute least restrictive means like strict scrutiny.128 Here, intermediate scrutiny would require that “restriction upon the gun rights for the mentally ill would have to be substantially related to an important government objective.”129 Intermediate scrutiny can also be observed as a two part test requiring (1) the government’s stated objective be significant or substantial and (2) the relationship between the challenged regulation and asserted objective must have a reasonable fit.130 In practice intermediate scrutiny is used when a higher level than rational basis is required but the extreme standard under strict scrutiny fails to provide consistent logic necessary for the law.131 Most courts have

122. See id. at 628 29.

123 Id. at 634.

124 See id. 125 See id. at 688.

126 See id. 127 See id. 128. See id. at 134.

129. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 9 (2013).

130 Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 693 (2016) (citing U.S. v. Chovan, 735 F.3d 1127 (2013).

131 See D.C., 554 U.S. at 634; Vars & Young, supra note 133, at 9.

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agreed that intermediate scrutiny is the most appropriate scrutiny for the issue at hand.132

The government’s reason for this lifelong ban of gun rights is the concern for public health and safety and ensuring that individuals who are a danger to society are not able to exercise their Second Amendment right to bear arms.133 Because this issue revolves around a fundamental constitutional right, a higher level of scrutiny is a natural fit.134 However, the majority in Heller rejected the rational basis test, but they did not provide which level of scrutiny should be applied, leaving future courts to determine whether strict or intermediate scrutiny should be used.135 The Court specifically stated in Heller that these types of laws are considered to be “presumptively lawful.”136 “The majority defines presumptively lawful as those laws imposing conditions and qualifications on the commercial sale of arms.”137

For 18 U.S.C. § 922 (g)(4) to be constitutional would require at least “some evidence of the continuing need to disarm those long ago adjudicated mentally ill . . . to justify 922(g)(4)’s means to its ends.” 138 A proportionality test often assists courts in determining if a regulation is over inclusive to an unconstitutional degree.139 The government must “prove that 18 USC §922(g)(4)’s scope is proportional to the interest served.”140 However, Heller failed to provide a clear answer to the degree of over inclusiveness that would be tolerated under intermediate scrutiny.141

Overall Heller leaves us with three main points to consider regarding this issue. The first is the Second Amendment applies to citizens for the right of self defense.142 Second, the Court claims to have longstanding historical support for prohibiting those with

132 See Tyler, 837 F.3d at 684; See Mai v. United States, 2018 U.S. Dist. Lexis 21020.

133. See D.C., 554 U.S. at 611 12; See Tyler, 837 F.3d at 685.

134 See D.C., 554 U.S. at 593 94.

135 Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 7 (2013); See id. at 634 35.

136 See D.C., 554 U.S. at 626 27.

137 Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1061 62 (2020).

138. Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 694 (2016).

139 See D.C, 554 U.S. at 634; See Vars & Young, supra note 139, at 9.

140 Tyler, 837 F.3d at 698.

141 See 554 U.S. 570, (2008); Vars & Young, supra note 139

142 See D.C., 554 U.S. at 629 30.

mental illness from possessing firearms, and thus the prohibition of individuals with mental illness is “presumptively lawful.”143 Finally, when analyzing this issue, a higher level of scrutiny is required most likely intermediate scrutiny which the government must satisfy for the statute to be constitutional.144

Lessons from the Circuit Courts

The precedent provided from Heller has left circuit courts with conflicting opinions.145 The Sixth Circuit Court has interpreted Heller along with other Supreme Court opinions and found that a constitutional violation occurs regarding 18 U.S.C. § 922 (g)(4).146 However, the Ninth and Third Circuit Courts both found no constitutional violation regarding the same issue.147 A notable difference between these circuits is the state option available.148 As previously discussed, 18 U.S.C. § 925 provides states the power to create an agency to decide whether an individual should be able to regain their Second Amendment right, which is then signed off by the United States Attorney General as the final stamp of approval.149 The largest constitutional dilemma arises in cases where individuals are in one of the twenty states that does not provide an avenue to regain their Second Amendment right.150 This is most crucial because these individuals are prohibited to exercise a fundamental constitutional right for the rest of their lives without an opportunity to appeal such prohibition.151

Sixth Circuit Court of Appeals

The Sixth Circuit Court “struggled to determine whether the state could permanently ban a man from owning firearms because he was involuntarily committed for mental illness thirty years prior.”152 This resulted in different opinions, and the use of different standards

143 Id. at 627.

144 Id. at 628 29; Tyler, 837 F.3d at 686 87.

145 Tyler, 837 F.3d at 699; Mai v. United States, 2018 U.S. Dist. Lexis 21020.

146 Tyler, 837 F.3d at 699.

147 Mai, 2018 U.S. Dist. Lexis 21020; Beers v. Barr, 140 S. Ct. 2758, (2020).

148. Id.; Tyler, 837 F.3d 678.

149 See supra Part II(A)(3); 18 U.S.C. § 925.

150 See supra Part I.

151 Id.

152 Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1064 (2020).

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throughout the Sixth Circuit Court’s bench.153 Further, “some judges wrestled with whether involuntary commitment, particularly in the past, was an appropriate proxy for mental illness” while “others found it difficult to determine whether Heller was accepting prohibitions for those who have experienced mental illness or were mentally ill at that specific moment in time.”154 The lack of guidance regarding the standard of review guidance worsened the matter while judges continue to debate on whether strict or intermediate scrutiny should be applied.155

Tyler argued 18 U.S.C. § 922 (g)(4) was unconstitutional as applied due to the specific facts surrounding his involuntary commitment and his current state of mind.156 The lack of any avenue for Tyler to regain his fundamental right furthers the unconstitutional effect of this code.157 Tyler argued that a depressive episode, caused by a devastating divorce, cannot be a justifiable reason to strip someone of their constitutional right.158 A married man of twenty three years was confronted with divorce papers as his wife left with another man and his money.159 Tyler has been of stable mind since the divorce and has not had another depressive episode since the divorce over thirty years ago.160 The Sixth Circuit Court declared that “we cannot look to Heller and in good faith believe that when the Court said a law prohibiting guns to mentally ill individuals possibly applies to Tyler.”161 When looking to Heller the Sixth Circuit Court stated that “at least twelve of us agree that intermediate scrutiny should be applied.”162

The argument to prohibit Tyler from exercising his Second Amendment right is founded on the idea that he poses a risk to society since he was previously involuntarily committed.163 After evidence supported that Tyler did not pose a danger to society like

153 Tyler, 837 F.3d at 699 721.

154 Ulrich, supra note 156, at 1065.

155 Id.

156 Tyler, 837 F.3d at 681.

157 Id. at 684.

158. Id. at 681.

159 Id. at 683.

160 See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 775 F.3d 308, 314 (2014).

161 See Tyler, 837 F.3d at 697 99.

162 Id. at 699.

163 See id.

assumed, the court concluded that the current regulation failed intermediate scrutiny.164

Ninth Circuit Court of Appeals

The Ninth Circuit Court’s interpretation of precedent is illustrated in Mai v. United States.165 The court denied petition for rehearing and thus upheld the district court’s finding that no constitutional violation was present.166 There, Mai challenged 18 U.S.C. § 922 (g)(4) as being unconstitutional as applied.167

Mai was involuntarily committed when he was seventeen years old and remained under involuntary commitment for over nine months.168 Once released he was never committed again.169 Mai became a productive member of society as he furthered his education and began working for Fred Hutchinson Cancer Research Center as an immune monitoring specialist.170 Mai’s home state of Washington allows an individual to plead their case in front of a lower court to reinstate their right to bear arms, under the state statute.171 Mai did such and was approved.172 However, when he went to purchase a firearm he was denied based on the federal code, 18 U.S.C. § 922.173

After congress defunded the avenue for individuals to go to the Attorney General and plea to reinstate their Second Amendment right, congress passed NICS Improvement Amendment Act (NIAA).174 NIAA allows states to provide a program that reinstates gun possession rights.175 A crucial requirement is that the state program must receive approval from the Attorney General when it is developing the program and must submit all state approvals to the Attorney General.176 Washington’s program was created prior to NIAA and thus did not receive the Attorney General’s approval 164. See id. 165. Mai v. United States, 974 F.3d 1082, 1083 (2020). 166 Id. 167 Id. 168 Mai v. United States, 2018 U.S. Dist. LEXIS 21020, *1 2 (2018). 169 Id. 170 Id. 171. Id. 172 Id. 173 Id. 174 Id. at *4. 175 Id. at *5. 176 Id.

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during development, so was deemed unfit to provide Mai’s Second Amendment right based on the federal code.177

Mai’s argument that 18 U.S.C. § 922 (g) (4) is unconstitutional as applied to him revolves around the disconnect between involuntary commitment and lifelong danger to the public.178 Mai specifically argued “that the statute is unconstitutional as applied to him because he had no mental health issues since he was involuntarily committed at the age of [seventeen]”.179

The Ninth Circuit Court provided insight through dicta and precedent regarding § 922 (g)(1) prohibiting felons of gun possession.180 The circuit court led this district court to reject constitutionality arguments that turn on whether a plaintiff is violent or not.181 Because Mai’s argument rested on his separation from his seventeen year old self who was deemed either a danger to himself or others the Ninth Circuit Court denied his petition and declared that Mai did not provide argument which provided a constitutional basis for the court to hear.182

The district court also provided dicta regarding the case if Mai was determined to have constitutional authority.183 Looking at Heller, this court applied intermediate scrutiny but declared that Mai’s claim fails on the second prong.184 For Mai to prevail he had to prove that there was no substantial relationship with the government’s interest and the code itself.185 The government provided multiple studies suggesting correlations between mental illness and gun violence, which the court decided was more than enough to show this reasonable fit between the government’s interest and the means to satisfy the interest.186 The Third Circuit Court is most closely aligned with the ninth circuit, however they differ throughout their analysis in detrimental ways with the ninth circuit court providing a clearer analysis for courts to look to moving forward.187

177. Id. at *6.

178. Id. at *8 9.

179 Id. at *8.

180 Id. at *10 12.

181 Id. at *12.

182 Id.

183. Id. at *15.

184 Id. at *16.

185 Id. (The government’s interest is to protect the general public.)

186 Id. at *16 17.

187 Beers v. Barr, 140 S. Ct. 2758, (2020). (The Third Circuit Court similarly found that a constitutional violation did not exist, however the analysis differs from

Past Proposals Regarding the Gun Control Act

Others have also noted this constitutional dilemma and have advocated for a more radical change; calling for a total reform of 18 U.S.C. § 922 (g)(4).188 However, the Legislature and some courts have adamantly supported this rigid provision in the code focusing solely on the possible risk to society.189

Other proposals include providing an agency such as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) the power to approve an individual’s reinstatement of their Second Amendment right, based on if they are a danger to society.190 As history provides, the most political and necessary government programs receive funding and thus accomplish their goal.191 Both political parties have illustrated the priority of concern does not rest with individuals whose fundamental constitutional rights may be infringed upon, but who were at some point in time deemed a danger to society.192 Without funding, an agency in all intents and purposes does not exist.193 The defunding of the avenue194 provided in the Gun Control Act did not merely eliminate the agency avenue, it eliminated any federal avenue leaving only the states the option to

that of the Ninth Circuit Court. The analysis in Beers has recently been overturned as cert was granted for the Third Circuit Court to rehear the case. The court then vacated the judgment and remanded back to the district court with instruction to dismiss the case as moot. Due to this the Third Circuit Court is still beneficial to note that the slight majority of circuit courts agree that a constitutional violation does not occur, however the lack of analysis prevents Beers from honestly being used for anything beyond the holding.)

188 See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUM BEHAV., No.6, 685, 701 02 (2006); See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 22 24 (2013).

189 See Mai, 2018 U.S. Dist. Lexis 21020; Gun Control Act of 1968, 18 U.S.C. §§ 921 28 (1968), https://www.govinfo.gov/content/pkg/STATUTE 82/pdf/STAT UTE 82 Pg1213 2.pdf#page=4; See 18 U.S.C. § 922.

190 See Silver, supra note 192; See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV 1, (2013).

191 See Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA J.L. &PUB AFFS 1, 40 (2019).

192 See id. 193 See id.

194 See supra Part II(A)(3).

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provide a functioning avenue for relief.195 The approval through the Attorney General on paper still exists as the avenue for relief however, the lack of funding prevents an answer to be made.196 Without an answer being made, federal district courts do not have standing to review a denial and thus leaves individuals at the mercy of their state.197 Further, the federal agency expressed concern of “getting it wrong” and potentially providing an individual their right to exercise the Second Amendment when they still pose a danger to themselves or society.198 This fear of enabling a dangerous individual firearms presented an obstacle that led to the Attorney General denying almost all individuals who sought to regain their Second Amendment right.199

Federal district courts handle situations with dire consequences constantly.200 The potential for a bad consequence does not eliminate consideration for approval.201 A court hearing also provides, without limitation of funding, the opportunity to subpoena character and expert witnesses that provide a more complete illustration of an individual’s life and present to the court a more accurate interpretation of their danger to society.202

The importance of the federal district courts extends to the beginning of our Nation.203 Alexander Hamilton specified that in many cases the federal district courts are the best to judge as “courts of neither . . . States could be expected to be unbiased.”204 Unlike state courts, the federal district court judges are not at risk of losing their job based on a decision made.205 Agencies also face this similar

195 See 18 U.S.C. § 922(g); See 18 U.S.C. § 925.

196 See id.; See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678 682, (2016).

197. See id.

198 See Tyler, 837 F.3d at 698. (The seriousness of this potential consequence and concern for this consequence to occur has scared off approval from these agencies even when they did have funding.)

199 See id.

200 See Southeast ADA Center Federal Court Concepts, Federal District Courts, http://adacourse.org/courtconcepts/district.html (last visited Dec. 10, 2020).

201 See id.

202 Id.

203 See THE FEDERALIST NO 80 (Alexander Hamilton).

204 See id.

205 See id.

dilemma as the political sway influences many of their jobs as well.206

ARGUMENT

An individual being stripped from exercising a fundamental constitutional right raises concerns for many, but should raise concerns for all. Currently, 18 U.S.C. § 922 (g)(4) does not provide a functional avenue for individuals to regain their Second Amendment right if they have ever been involuntarily committed.207 These individuals who are left in a state that does not provide an avenue to satisfy the federal government’s legal flaw are left without any option.208 The purpose of taking an individual’s right to exercise the Second Amendment is to ensure the safety of the public.209 The same logic used to prohibit one from exercising their right to bear arms, should continue to be used when discussing reinstatement of an individual’s Second Amendment right.210 If an individual is deemed to no longer be a danger to themselves or others, they should be provided the opportunity to regain their Second Amendment right.211 Providing a functional opportunity to regain a fundamental constitutional right, through federal district courts would allow this constitutional violation to be resolved. The federal district courts are best equipped to fully understand and grapple with the seriousness of this consideration, without the risk of any political bias.212 Any type of federal agency program would leave this unconstitutional as the agency would most likely lack the necessary funding and thus face an impossible goal.213 Further, the agency is at the mercy of congress

206 See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 697 (2016).

207 U.S.C. § 922(g)(4); See supra Part II(A)(3).

208. See supra Part II(A)(3).

209. See supra Part II(A)(3) (The logic used by congress is that because individuals who have been involuntarily committed were at some point a danger to themselves or others they pose a greater threat to society than others, and prohibiting an individual from being in possession of a gun is worth protecting the general public).

210 See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUM. BEHAV., No.6, 685, 688 (2006).

211 See id.

212 THE FEDERALIST NO. 80 (Alexander Hamilton).

213 See supra Part II(A)(3).

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and the political system.214 Any unfavorable decision an agency makes strengthens the argument to cut funding while also increases the possibility that they could lose their job, since they are at the mercy of the political system .215 Any state court has similar issues, as they are immediately held responsible by the political people they govern over.216 The fear of “getting it wrong” prevents even state courts from providing a true avenue for individuals to possibly regain their Second Amendment rights.217

We now know more about mental illness than we have at any point in history.218 We also live in an inclusive society that strives to be less discriminatory in all areas.219 Although there is a crucial concern about the safety of the public regarding mentally ill individuals possessing firearms, that does not provide the unlimited power to violate an individual’s fundamental constitutional right.220 This constitutional issue should be looked at under a deeper lens and consider other factors, rather than placing individuals in a category and then taking away their constitutional right without recourse.

To resolve this constitutional infringement the existing language in 18 U.S.C. § 925 needs to be replaced with language that explicitly provides standing to federal district courts.221 This would allow these courts to hear cases of individuals who are seeking to reinstate their Second Amendment rights.222 To support this proposal we must first look at the current legislation and specifically note the discriminatory view that fore fronted such legislation.223 The lack of relation between individuals with mental illness and dangerousness must be analyzed with the most accurate study guiding the discussion.224 Second, a reconciliation of Heller’s misconstrued “historical support” must be addressed as the difference in interpretation could lead to an

214. See id.

215. See supra Part II(A)(3); Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 697 (2016).

216 See supra; THE FEDERALIST PAPERS:NO 80 (Alexander Hamilton).

217 See id.

218 See supra Part II(A).

219 See id.

220. See D.C. v. Heller, 554 U.S. 570, 627 (2008); See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 686 87 (2016).

221 See infra Part IV.

222 See supra Part II(C).

223 See infra Part II(A).

224 See infra Part II(A)(2).

argument without true basis.225 Finally, a detailed scrutiny analysis over the material will further illustrate the unconstitutionality of 18 U.S.C. § 922 as it currently exists.226

The Discriminatory View in Current Legislation

An irrational fear of the mentally ill population has unfortunately existed throughout much of our history as a nation.227 The mentally ill population has carried a stigma that they are dangerous while a debate continues on “whether this perception is grounded in reality.”228 Individuals who have been involuntarily committed carry this burden more than others as they were at one point deemed to be a danger to society and carry the assumption that they will always be a danger, based on that one moment.229

One crucial issue that has continued the stigma against the mentally ill is the all encompassing grouping of individuals who have mental illness.230 Mental illness includes those who have minor anxiety to those with severe schizophrenia.231 Mental illness incudes those who learn behavioral techniques and cope while being a productive member of society, as well as those who must be heavily medicated to ensure safety for themselves and others.232 Those with mental illness vary in such extreme measures that grouping them together is deceiving at best.233

225. See infra Part II(B)(1).

226. See infra Part II(B).

227 See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV 1, (2013); See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV. 1439, (2015).

228 See Vars & Young, supra note 231, at 14.

229. See Gues Pryal, supra 231.

230. See Ronald W. Manderscheid, Carol D. Ryff, Elsie J. Freeman, Lela R. McKnight Eily, Satvinder Dhingra, & Tara W. Strine, Evolving Definitions of Mental Illness and Wellness, PREVENTING CHRONIC DISEASE, (2009); (Many psychologists and researchers outside of the legal field separate the mentally ill population into individuals with serious mental illness and those who do not. However, the law has not provided such distinction as it is much more slow moving compared to society. The law recognizes individuals with mental illness as one group and have stigmatized the entire group based on individuals who act in the most severe and serious ways.)

231 Id 232 Id.

233 See Id.; See Gues Pryal, supra note 231

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This misunderstanding and belief of the mentally ill population has led to an overwhelming stigma against those with mental illness.234 This is illustrated and supported with both skewed statistics as well as congress supporting such stigmatized language.235

Correcting the Overwhelming Stigma

The stigmatized belief about individuals with mental illness has seeped into the minds of many individuals throughout the nation, including (most devastatingly) those in power.236 In many instances these individuals are looked down upon as no longer being of the same nature as every other human being.237

Unfortunately, there seems to be a lack of effort in understanding each individual as an individual rather than judging them based on their existence in the all encompassing “the mentally ill.”238

The political parties further the stigmatized view of the mentally ill population because it furthers both of their own agendas.239 The Democratic Party pushes a stigma that firearms are too readily available (to everyone) including individuals who are mentally ill causing the increase of gun violence that we are witnessing in our recent history.240 It is no secret that the left winged party wants to restrict the Second Amendment much more than it has applied.241 Placing blame on the mentally ill population serves this purpose as it uses a scare tactic to ensure people are so worried of the possibility

234 See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUMAN BEHAVIOR, No.6, 685, (2006).; See Gues Pryal, supra note 231.

235 See Gues Pryal, supra note 231; See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, (2013).

236 See Gues Pryal, supra note 231.

237 Id.; See Reuters Staff, NRA Chiec Criticizes Navy Yard for Being ‘Unprotected’ Before Mass Shooting, REUTERS (Sept. 22, 2013), https://www. reuters.com/article/us usa guns/nra chief criticizes navy yard for being unprotectedbefore mass shooting idUSBRE98L0C920130922; See D.C. v. Heller, 554 U.S. 570, (2008).

238 See Gues Pryal, supra note 231; Reuters Staff, supra note 241.

239 Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA J.L. &PUB AFFS 1, 50 (2019).

240 See id.

241 See id.

of mentally ill individuals causing gun violence that the concern for their constitutional rights vanishes.242

On the other side, the Republican Party wishes to protect the Second Amendment right to bear arms to the full extent possible.243 Although seemingly counter intuitive, placing sole blame on the mentally ill population and restricting their gun rights furthers the rights for everyone else.244 The proposed argument is once again stemmed out of fear.245

The distinction between the two parties is that one is based on a fear of firearms generally, while the other is either based on a fear of the mentally ill population, or (more likely) the fear of losing their own Second Amendment rights.246 In other words, “the Second Amendment right to keep and bear arms rests, rhetorically, on the backs of those groups who are forbidden to do so”. The political push from both parties leaves this group of individuals not only without any political representation but without any defense mechanism as both parties attack the group.247

This idea of placing blame solely on individuals with mental illness not only uses an ungrounded fear as a controlling force but is also a classic example of scapegoating.248 Justice Scalia exemplified this scapegoating technique and showed that those who are mentally ill indeed serve as a political pawn for both parties.249 The result of Scalia’s language in Heller further encouraged this “us-versus-them dichotomy, where ‘them’ are quite scary to many people.”250 The irony of Justice Scalia’s tactic is that “this fear in turn justifies gun ownership by the in group, because the in group now has a reason to own guns for personal defense: the scapegoat.”251

242. See id. at 49 50. 243. See id. 244 See id. 245 Id. 246 Id. (By claiming that the mentally ill population is the sole reason for gun violence throughout our nation, it follows that those who aren’t mentally ill do not pose a risk to society and thus should be able to exercise the second amendment to its full amount.)

247 Id. 248 Id. at 1452. 249 Id. 250 Id. 251 Id.

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This scapegoating technique is not new, as it has intentionally existed throughout our history as a nation.252 The scapegoating victims become such due to “[f]ear within a community with strict societal norms [whom] can view any differing variation from the norm as a threat to the continuation of the societal security.”253 The scapegoats exist when “the fear is then transferred over to vulnerable individuals who are being blamed within a bigger picture.”254 The use of fear to further other goals can be seen so far back as 1692 during the Salem Witch Trials.255 Similarly the more we learn about psychology the more we see that the true insanity lies with those who see individuals with mental illness as completely different from everyone else. The scapegoating technique creates a fear of the mentally ill population to create a more cohesive group, of everyone else.256

The comments made by LaPierre further encourage this stigmatized view, and clearly illustrates the fear tactic being used to push against the mentally ill population, while furthering gun rights for everyone else. 257 LaPierre doesn’t leave the fear induced stigma there as he pushes for a change saying “if we leave these homicidal maniacs on the street, they don’t obey the law, they could [not] care less about it, they are going to kill.”258 The assumption is: if you have mental illness you are not only a potential danger to society but a “homicidal maniac.”259 LaPierre fails, however, to provide any evidence or cite anything that would allude to his conclusion that all individuals who are mentally ill are in fact homicidal maniacs and thus cannot have guns, much less that they should not “be on the street”.260 LaPierre exemplifies the most blatant use of fear to

252 Id.

253 Andreanna Hughes, Scapegoat Hysteria: A Comparison of the Salem Witch Trials and the Red Scare, BRIDGEWATER STATE UNIVERSITY 1, 4 (2016). 254. Id.

255 See id. at 4 5 (explaining that the individuals who were considered to be witches and persecuted as such because they were not fitting within the puritan norms of the time.)

256 McMahon, supra note 243, at 11.

257 Reuters Staff, NRA Chiec Criticizes Navy Yard for Being ‘Unprotected’ Before Mass Shooting, REUTERS (Sept. 22, 2013), https://www.reuters.com/article /us usa guns/nra chief criticizes navy yard for being unprotectedbefore mass shooting idUSBRE98L0C920130922.

258 Id. (Emphasis added)

259 Id. 260 Id.

implement the entire mentally ill population as the scapegoats for gun violence as a whole.261

This stigmatized view that the mentally ill population are such a danger to society that they are the cause for the nations gun violence has overwhelmingly spread as history passes.262 The support from individuals in power have strengthened the proposal to separate those with mental illness from the rest of the population in many ways including their constitutional rights.263 This separation ensures that their constitutional infringement will not be a priority of concern for anyone in power as the fear of the mentally ill has been pushed to the forefront of the nation. Without any political representation or broad support these individuals are left with the most serious constitutional infringement that can exist in our nation and violates the fundamental values on which our nation was founded upon.

Prioritizing Appropriate Statistics

The statistics and studies used by courts, who are furthering the stigmatized view of the mentally ill, and other leaders further exemplifies the dangers to such a stigmatized view 264 These studies have skewed results and skewed conclusions based on the objective to find an endorsed conclusion before examining the data.265

Most of the statistics regarding mental illness and violence compares violent acts to individuals who are mentally ill or not mentally ill.266 This information focuses solely on the government’s concern for public health and safety resulting in the mentally ill

261 Id.

262 See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV 1439, (2015); See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 14 (2013); Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUMAN BEHAVIOR, No.6, 685, (2006).

263 Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA J.L. & PUB AFFS 1, 50 (2019); See Reuters Staff, NRA Chiec Criticizes Navy Yard for Being ‘Unprotected’ Before Mass Shooting, REUTERS (Sept. 22, 2013), https://www.reuters.com/article/us usa guns/nra chief criticizes navy yard for being unprotectedbefore mass shooting idUSBRE98L0C920130922.

264 See Vars & Young, supra note 266; See Silver, supra note 266

265 Id.

266 See Silver, supra note 266.

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population being equated to a danger to the public.267 A more appropriate statistic to rely on, when discussing whether mentally ill individuals are dangerous, is to look at the mentally ill population (or more specifically those who have been involuntarily committed) and compare whether they have been violent or not.268 There is statistical evidence that our perception of mentally ill individuals as violent is false.269 The evidence is so strong that this long held misconception can no longer be used to perpetuate the infringement upon the mentally ill populations constitutional rights.270

Harvard medical journal provided support to the McArthur study as being the best study in existence right now and providing a more accurate representation of the world today.271 The confirmation biases that exists in many of the other studies furthers the objective of the political parties and ultimately the pocket book of our nation.272 These skewed statistics and studies have thrusted us into the world we are in today; where the true issues at hand are not being dealt with and merely placed upon the backs of the mentally ill.273 And where individuals are being forced to play the part of a political pawn, and living a life without the right to recognize the Second Amendment.274

Current Legislation and Its Devastating Consequences

Explicit stigmatized language in 18 U.S.C. § 922 (g)(4) further illustrates the overall stigma of individuals with mental illness while providing congress’ approval of such stigma.275 The word choice in the code specifically illustrates the stigmatized view.276 Rather than describing the goal that the government wishes to obtain, the

267 See id. 268 Id. 269 See supra Part II(A)(1). 270. See id. 271. See Mental Illness and Violence, HARVARD HEALTH PUBLISHING & HARVARD MEDICAL SCHOOL, https://www.health.harvard.edu/newsletter_article /mental illness and violence (last visited Dec. 10, 2020).

272 Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV 1, (2013); Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA J.L. & PUB AFFS. 1 (2019).

273 Id.; See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV. 1439, (2015); Silver, supra note 266.

274 Id. 275 18 U.S.C. § 922(g)(4).

276 Id.

government describes “dangerous” individuals as those who are “of mental defect” or who have been involuntarily committed due to mental illness.277 The inclusion of language specifying those who have been involuntarily committed was to provide an explicit expression that those who have been involuntarily committed are “of mental defect”.278 Classifying individuals who have ever been involuntarily committed as mentally defective not only illustrates the continued stigma but communicates that stigma to the entire nation.279 Eliminating the stigmatized language in the current code and encouraging the courts to eliminate similar stigmatized language in their opinions, would not eliminate the stigma of mentally ill individuals, but this would provide steps towards eliminating the clear examples of this stigma. 280

The stigma sets a dangerous precedent and enables the legislature, courts, and society as a whole to place the mental ill population as the scapegoat for gun violence in the United States.281 This stigma becomes increasingly dangerous as the congressional “stamp of approval” leads people to believe this stigma as fact.282 Accountability must at least partially be placed on those who have furthered this stigma and lead people to believe that individuals with mental illness are violent and overall a danger to society.283

The misconception and stigmatized view of the mentally ill, along with the political pressure to force these individuals to act as a scapegoat for gun violence leaves our country in a dangerous position.284 We as a nation have judicial and congressional approval

277. Id. 278 Id. 279 Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA J.L. &PUB AFFS 1 (2019). 280 Id. 281. Id. 282. Id. (This belief seeps into the minds of individuals throughout society, most devastatingly those who suffer with mental illness. Not only are these individuals living in a country with both major political parties acting prejudicial against them, but with the entire nation believing that these individuals are dangerous, many individuals with mental illness begin to consider and believe that these stigmatized beliefs are true.)

283. Id.

284. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV 1, (2013); Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA J.L. & PUB AFFS 1 (2019); See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV 1439, (2015); Eric Silver, Understanding the Relationship Between Mental

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to deny these individuals a fundamental constitutional right without the opportunity to regain such right.285 We are allowing individuals to be declared “defective” sometimes based on a once in a lifetime emotional reaction.286 This rigid and stigmatized view has encouraged and led to the rigid and stigmatized code that has left these individuals fighting against an unconstitutional regulation.

Misconstrued “Historical Support” used to Prohibit Firearm Possession

District of Columbia v. Heller exists as a landmark case as it provided the right to exercise the Second Amendment for individuals for self-defense.287 However, this case eliminated this right for certain individuals including those who have been involuntarily committed.288 The drawback with Heller providing such a serious elimination for many individual’s to exercise their Second Amendment right, is that the way it has been applied does not pass the level of scrutiny required and is not grounded upon historical support.289

Heller has left a devastating gap in understanding and applying 18 U.S.C. § 922 (g)(4).290 The lifelong ban that Heller seems to approve of leaves lower courts interpreting the precedent with a serious constitutional dilemma.291 The Supreme Court provided a broad rule regarding the Second Amendment, but the explanation regarding those who have been involuntarily committed is filled with logical fallacy.292

The broad consensus of Heller is that the Second Amendment applies for each individual except those which 18 U.S.C. §922 (g)(4) prohibits.293 An inconsistent logic seen in Heller is that fundamental constitutional rights including the Second Amendment rights are

Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUMAN BEHAVIOR, No.6, 685, (2006).

285 18 U.S.C. § 922(g)(4) (2015); Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA J.L. &PUB AFFS 1 (2019).

286 See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, (2016).

287 See D.C. v. Heller, 554 U.S. 570, (2008).

288. See id.

289 See id.; Vars & Young, supra note 288, at 7.

290 See 554 U.S. 570; Vars & Young, supra note 288, at 7.

291 See D.C., 554 U.S. 570 (circuit court section in background).

292 See id.; Vars & Young, supra note 288, at 7.

293 See id.

limited in the application but the Second Amendment is also limited based on what category a person fits under.294 The compelling state interest that the government has to protect the general public is not tied to the language in 18 U.S.C. § 922 (g)(4) as there is no historical support to deny these individuals a fundamental right and the accurate scientific studies illustrate the individuals who have been involuntarily committed are not in fact a danger to the general public.295

One of the stand out errors in Heller was dicta that stated, “nothing . . . cast doubt on longstanding prohibition on the possession of firearms of . . . the mentally ill.”296 This dicta has led to overwhelming and devastating consequences for those with mental illness.297 This statement claims that throughout history we have never doubted stripping an individual’s Second Amendment rights away because they have a mental illness.298 Such a statement is simply not supported.299

The best argument, to find historical support, is that the history is provided through the code, but even that is a stretch. The code indicated the need to prohibit the Second Amendment for those who are mentally defective, because they pose a danger to society.300 The dangerous slippery slope continued once a court added those who have been involuntarily committed to fall under this group.301 The same logic applies that they are a danger to society, however, unlike mental defectiveness, individuals who have been involuntarily committed are not necessarily (and often times not) in the same state as they were when they were involuntarily committed.302

The historical support for the dicta provided in Heller is minimal if in existence at all.303 The disagreement between circuit courts further exemplifies the logical fallacies with applying the dicta

294. See id. (If an individual fits under the mentally defective or involuntarily committed category they are thereinafter banned from possessing a firearm many times for their entire life without an option to appeal such decision.)

295 See id.

296 554 U.S. at 626.

297 See supra Part I.

298 See D.C., 554 U.S. at 626.

299. See supra Part II(B)(1)(a).

300 See 18 U.S.C. § 922(g)(4).

301 See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, (2016).

302 See supra Part II(A)(2).

303 See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 7 (2013).

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provided in Heller as support for a lifelong ban of gun possession for individuals who have been involuntarily committed.304 Although Heller stated that laws prohibiting guns to individuals who are mentally ill is “presumptively lawful,” the Court never intended to extend this to individuals who are no longer mentally ill.305 The rationale is that mentally defective individuals are a danger to society, thus they should not be prohibited to exercise their Second Amendment right.306 The logic follows then, that once the individual is no longer a danger to society they should be granted the opportunity to regain their Second Amendment right.307 However, the stigmatized view pushed by the political parties and stamped with approval from congress encourages a reading of Heller that extends far beyond the intent.308 The lack of historical support further strengthens the unconstitutionally of 18 U.S.C. §922 (g)(4) as the logistical fallacies are present throughout.309

The Appropriate Standard of Review

According to the dicta and expressed language in Heller, intermediate scrutiny is the appropriate level of scrutiny to analyze this constitutional issue.310 When looking at 18 U.S.C. § 922 under intermediate scrutiny the statute fails, as it does not provide the natural fit to the states proposed interest.311 The Sixth Circuit Court correctly applied and analyzed the intermediate scrutiny to Tyler’s situation.312 The Sixth Circuit Court also accurately illustrated how to engage in an analysis using intermediate scrutiny.313

304 See Tyler, 837 F.3d 678; See Mai v. United States, 2018 U.S. Dist. Lexis 21020.

305 See D.C. v. Heller, 554 U.S. 570, 627 (2008).

306 Id.

307 Id. at 626 27.

308. See supra Part II(A)(3).

309 See supra Part II(B)(1)(a).

310 See supra Part III(B).

311 See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 686 87 (2016).

312 See id. at 699.

313 See id. at 686 87.

Heller’s Intermediate Scrutiny Application

Heller left courts today questioning what level of scrutiny is best for situations like the one at hand.314 Heller explicitly rejected the rational basis review therefore, requiring a higher level of scrutiny.315 The other insightful information that Heller provides regarding the scrutiny is that these types of laws those which restrict the Second Amendment from the mentally ill population are considered to be presumptively lawful.316 Therefore, applying strict scrutiny or rational basis would almost certainly offend the precedent set by Heller. 317

Intermediate scrutiny is best applied when considering the language and the intent behind Heller. 318 “[I]ntermediate scrutiny would require that restriction[s] upon the gun rights for the mentally ill would have to be substantially related to an important government objective.”319 The use of intermediate scrutiny is further supported by a similarity between the present issue and others which have been scrutinized under intermediate scrutiny.320 For example, a ban on gun possession for individuals who have abused substances in the past is scrutinized under intermediate scrutiny.321 Finally, this constitutional issue differs significantly from others which are looked at under strict scrutiny due to the dangerous nature of firearms and the overwhelming concern for public health and safety.322

Intermediate scrutiny requires that a government’s objective be significant and a reasonable fit between the challenged regulation and the asserted objective.323 The government’s interest in protecting the

314 See id.; Mai v. United States, 2018 U.S. Dist. Lexis 21020; Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1065 (2020).

315 D.C. v. Heller, 554 U.S. 570, 628 29 (2008).

316. Id.

317. See id. (Strict scrutiny requires a lens that looks upon laws with a presumption that they are unlawful. This presumption will continue to exist as fact unless the government can prove there is a compelling state interest and the regulation is narrowly tailored to such interest.)

318 Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 692 (2016).

319 Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 9 (2013).

320 Tyler, 837 F.3d at 692.

321 Id.

322 Id.

323 Id. at 693 (citing U.S. v. Chovan, 735 F.3d 1127 (2013). (It is important to note that reasonable fit and substantially related are synonymous and

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general health and safety of the public is unquestionably significant and “has always been a critical component of a society’s survival.”324 Even though this interest satisfies the first prong of the intermediate scrutiny test, 18 U.S.C. § 922 (g)(4) fails the second prong; requiring a reasonable fit between the objective and the means for achieving the objective.325 The best argument that a reasonable fit exists is founded upon the skewed statistics and widely endorsed stigma against the mentally ill population.326 However, as previously discussed such an argument is not grounded in fact.327

Even though the concern for the public is a significant interest, it alone is not enough; it is a mere factor that needs to be considered in the eyes of the law, but is not the sole determinant when discussing constitutional violations.328 The fact that someone has been involuntarily committed does not necessarily make them a continued risk to society.329 At one point, individuals who were involuntarily committed were in fact deemed to be a danger to themselves or others, but there is significant evidence illustrating that many people including Tyler and Mai do not return to this dangerous state ever again in their life.330 The compelling reason and evidence for the need to regulate gun safety “does not, however, answer why Congress is justified in barring anyone who has been previously committed.” 331

18 U.S.C. § 922 (g)(4) is overinclusive as it includes individuals who are not a danger to society and prohibits their Second Amendment right for the entirety of their life. However, “[t]here is no clear answer as to the degree of over inclusiveness that will be

interchangeably used as the second prong of intermediate scrutiny and have the same meaning. Although the meaning is the same, arguments have been made that reasonable fit is slightly lower of a requirement than substantially related. In

324. Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1072 (2020).

325 Id.

326 See supra Part III(A)

327 See id.

328 Ulrich, supra note 328 at 1075 (The governments compelling interest to prevent firearm deaths is overwhelming as the number of deaths and serious injuries related to firearms continues to rise.)

329 See supra Part II(A).

330 Id.; See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, (2016); See Mai v. United States, 2018 U.S. Dist. Lexis 21020.

331 Tyler, 837 F.3d at 695.

tolerated under intermediate scrutiny.” 332 The over inclusive nature of this statute provides support that this statute is unconstitutional as applied due to the unproportionally and the lack of tie from the law to the government interest. 333 “Even if known low risk groups were excluded from the ban there would still be massive overbreadth.”334 The government must “prove that §922 (g)(4)’s scope is proportional to the interest served.”335 Despite the seriousness of the government’s interest to protect the general health and safety of the public, there is not enough evidence to justify such a severe restriction.336 A stigmatized belief that people with mental illness are forever a danger to society coupled with the belief that firearms are inherently dangerous does not justify such a severe restriction, like imposing “a lifetime ban on a fundamental constitutional right”. 337

Based on Heller, intermediate scrutiny is the most appropriate level of scrutiny to address the constitutional issue regarding a lifetime ban on gun possession for anyone who has ever been involuntarily committed. Under the intermediate scrutiny analysis 18 U.S.C. § 922 (g)(4) fails, as it is unproportionally overbroad and thus is not a rational fit to the state’s objective.

The Supreme Court Should Adopt the Sixth Circuit Analysis

Although the precedent provided in Heller left circuit courts with conflicting opinions, the Sixth Circuit Court appropriately applied the precedent to the issue at hand.338 Intermediate scrutiny was correctly determined to be the level of scrutiny necessary for this constitutional issue and was correctly applied to Tyler’s case.339 Even though Tyler was in a state that did not provide any alternative avenue to recover his Second Amendment right, the analysis and ultimately the holding that 18 U.S.C. §922 (g)(4) is unconstitutional should be followed nationwide.340 The federal government created the current

332 Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV 1, 17 18 (2013).

333 See Tyler, 837 F.3d at 698.

334 Vars & Young, supra note 336, at 18.

335. Tyler, 837 F.3d at 698.

336 Id. at 699.

337 Id. 338 Id. at 678 339 Id. 340 Id.

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constitutional infringement and should provide the avenue to reconcile such issue.341

The court concluded that calling for individuals like Tyler to be stripped of their fundamental right inherently violates the constitution and violates the precedent set in Heller. 342 The Second Amendment was created to protect individuals like Tyler and “forbids Congress from prohibiting firearm possession by currently healthy individuals who were long ago committed to a mental institution.” 343

The Sixth Circuit Court noted that the substantial government interest is the overall health and safety concern of the general public, however, the court decided the regulation set forth in 18 U.S.C. § 922 was not tied to the interest of protecting the public safety.344 The second requirement leads the government to prove a substantial relation to the act of which they are doing.345 Here, Tyler has no other means to regain his gun possession right.346 Therefore, in all effectiveness the code eliminates Tyler’s Second Amendment rights for his entire life without exception.347

The Sixth Circuit Court correctly recognized the substantial government’s interest in the overall health and safety of the general public.348 The Ninth Circuit Court also provides support that the government has a substantial interest.349 However, the Sixth Circuit Court notably provided a more grounded holding by finding the regulation set forth in 18 U.S.C. § 922 (g)(4) was not tied to the interest of protecting the public safety.350 The second prong of the intermediate scrutiny standard is that the regulation must be substantially related (or a reasonable fit) to the government’s interest.351 Based upon an accurate knowledge of mental illness and involuntary commitment the Sixth Circuit Court correctly concluded that prohibiting individuals who were once involuntary committed cannot logically be tied to protecting the general safety.352

341. Id. 342 Id. 343 Id. at 685. 344 See id. 345 Id. at 693. 346 Id. at 689. 347. Id. 348 Id. at 691.

349 Mai v. United States, 2018 U.S. Dist. Lexis 21020.

350 See Tyler, 837 F.3d at 678. 351 Id. 352 Id.

Unlike the Ninth Circuit Court, the Sixth Circuit Court looked upon Tyler’s situation with an empathetic view as one person should look upon another.353 Rather than using this individual who was involuntarily committed as a political pawn the sixth circuit looked at his constitutional rights.354 The analysis provided by the Sixth Circuit Court not only sets this nation on the road to end the stigma against the mentally ill population but is logically grounded in precedented law.355

PROVIDING A LEGISLATIVE

The 18 U.S.C. § 922 (g)(4) must provide a feasible exception to the current prohibition of firearms for those who have been involuntarily committed to all within constitutional limits. Congress illustrated their knowledge of the constitutional issue when they passed an administrative avenue for individuals to present their case before the Attorney General and potentially regain their Second Amendment rights once they are no longer a danger to society.356 They provided dicta expressing the likely constitutional violation with the code as it currently stands.357 However, today we have many individuals left without recourse as congress defunded the Attorney General avenue and allowed states to choose whether or not to provide an avenue for individuals who have ever been involuntarily committed to regain their gun possession rights.358

Based on the political push to strengthen the stigma against the mentally ill a government agency program (which requires congressional funding) would be insufficient.359 The agency would likely not receive the necessary funding and thus leave us where we are today, with too many individuals having their Second Amendment right unconstitutionally stripped from them.360 Providing standing to the federal district courts would enable them to hear and determine whether a person is a danger to society and thus whether 353 Id. 354 Id. 355. Id. 356 See supra Part II(A)(3). 357 See id. 358 See id. 359 See supra Part II(A)(3). 360 See id.

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the prohibition of the Second Amendment should continue to exist for them.361

Understanding that the judicial system has the most appropriate level of recourse for these individuals and their constitutional right, the courts need to know how to address these cases, as they will be of first impression for most if not all. The court would need to look at an individual’s case under an indeterminate multifactor analysis.362 This allows the court to include any and all information of an individual’s case that seems to be relevant to the overall question of if they are a danger to themselves or society. A crucial aspect of this analysis would include a broad risk factor analysis, investigating an individual’s risk in the past and their potential of being a risk to society again.

A similar logic would be used that is currently used in the criminal justice system. The factor of looking at repeat offenders and the repeat of violence is more crucial and accurate to determine potential violent acts in the future rather than one characteristic, whether that be their crime or their diagnosis.363 Rather than only looking at whether a person was involuntarily committed we need to take a deeper look.364 Understanding what an individual was involuntarily committed for and their subsequent diagnosis is crucial for understanding the reality of the threat they may or may not pose to society. These district courts will have the opportunity to enable an individual to rightfully regain their constitutional right. This would also provide a remedy to the justice system as a whole by eliminating these constitutional infringement claims based an unconstitutional provision in 18 U.S.C. § 922 (g)(4).

CONCLUSION

Many individuals like Tyler and Mai are being forced to live without a fundamental constitutional right for the entirety of their lives based on a singular moment of their past. As of right now 18 U.S.C. § 922 (g)(4) exists as an unconstitutional law prohibiting individuals who have been involuntarily committed from being in possession of a firearm for the entirety of their lives.

361. See supra Part II(C).

362 See id.

363 Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUMAN BEHAVIOR, No.6, 685 (2006).

364 Id.

The reasoning behind this lifelong prohibition stems from the government’s concern for the public health and safety. The fallacy is that 18 U.S.C. § 922 (g)(4) frivolously concludes that individuals who have been involuntarily committed due to mental illness pose a risk or danger to the safety of the general public. This belief is founded upon a long held misconstrued stigma that the mentally ill population are in the nature of their illness dangerous. This has been negated with scientific studies illustrating that those who have been committed to a facility for mental illness are not any more violent than the general public itself.

The use of the mentally ill population has furthered the stigma and supported this unconstitutional law because placing blame on this specific group of individuals furthers the political objectives of both the democratic and republican parties. This population enables both parties to pressure society into agreeing with whatever their political agenda is. The democratic party being to strengthen gun control, while the republican party wishes to exercise the full amount possible of the Second Amendment for everyone outside of the mentally ill group.

The stigmatized language in 18 U.S.C. §922 (g)(4) creates a further problematic view of the mentally ill as congress is providing a stamp of approval that the mentally ill individuals are in fact dangerous to society. This congressional stamp of approval impacts our Nation and those with mental illness more negatively than almost all of the other aspects discussed in this article.365

The legal basis provided by Heller further strengthens that this law is unconstitutional. Applying intermediate scrutiny is the appropriate standard based on precedent set in Heller as well as consistency with other Second Amendment cases. Although the government’s interest is substantial, prohibiting individuals who have been involuntarily committed from ever possessing a firearm is not a reasonable fit. Individuals who have been involuntarily committed do not show to be the dangerous maniacs that leaders of this Nation have suggested. The evidence provided shows that prohibiting individuals who have previously been involuntarily committed from exercising their Second Amendment rights does not change any risk to the general public. Because this extreme prohibition cannot be tied to the

365 Excluding most significantly the application of the code itself as the application of such unconstitutional law illustrates a blatant disregard for these individuals constitutional rights.

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public safety (which is the government’s interest) 18 U.S.C. § 922 (g)(4) cannot be shown to be a reasonable fit.

The best way to protect the government’s interest and refrain from infringing upon individual’s constitutional rights includes a legislative and judicial solution. The code must provide an avenue for individuals to present their case to their federal district court.366

There, individuals who have been prohibited from possessing a firearm (due to involuntary commitment) can advocate that they are not a danger to the general public. After hearing from expert witnesses (along with others), if the court decides that an individual is not a danger to the public, they are entitled to exercise their Second Amendment right as they are no longer connected to the government’s interest.

Individuals like Tyler are left without any representation or opportunity to merely present his case. The Court is in a position to reconcile the disagreement between circuit courts and most importantly show individuals like Tyler that someone in power cares enough about him to at least provide an avenue to regain Second Amendment rights.

366 Without providing such explicit standing the courts do not currently have the power to hear these cases, as the Attorney General is (on paper) still must make a decision before the federal courts can hear the case.

FUNDAMENTALLY FAIR FOR THE NONCITIZEN: FEDERAL CIRCUIT COURT JURISDICTION OVER INEFFECTIVE ASSISTANCE OF COUNSEL AND PROCEDURAL DUE PROCESS CLAIMS MADE BY PETITIONERS SEEKING DISCRETIONARY RELIEF

YESENIA R. SORIA *

ABSTRACT..... .....................................................................................81

INTRODUCTION 82

A BRIEF HISTORY OF THE REMOVAL PROCESS AND NONCITIZENS’ INEFFECTIVE ASSISTANCE OF COUNSEL AND PROCEDURAL DUE PROCESS CLAIMS.........................................................................86 Removal Proceeding and Federal Circuit Court Jurisdiction 86 The Development of Noncitizen Due Process Rights Under the Fifth Amendment ................................................................89 Ineffective Assistance of Counsel Claims and Their Roots in the Fifth Amendment...........................................................91 Discretionary Forms of Relief and Their Commonality 93 The Current Federal Circuit Court Split.................................94 Circuit Courts that Exercise Jurisdiction Over Both Types of Claims 94 Circuit Courts that Exercise Limited Jurisdiction.............96 Circuit Courts that Do Not Exercise Jurisdiction Over Either Type of Claim....................................................97

SUPREME COURT AND BOARD OF IMMIGRATION APPEALS PRECEDENT ON FUNDAMENTALLY FAIR REMOVAL PROCEEDINGS .................98

THE CIRCUIT COURTS SHOULD HOLD THAT THEY HAVE JURISDICTION BECAUSE NONCITIZENS HAVE A PROTECTED INTEREST IN FUNDAMENTALLY FAIR REMOVAL PROCEEDINGS.....................101

* Yesenia R. Soria, Staff Editor, Texas Tech Law Review; J.D. Candidate, May 2022, Texas Tech School of Law; M.B.A. Candidate, May 2022, Texas Tech University; B.B.A., 2019, Abilene Christian University. The author wishes to thank Dean Jack Wade Nowlin, Professor Jamie Baker, Professor David Strange, Professor Janeen Williams, and Sara Baumgardner for their editorial contributions and guidance throughout the writing process of this Article. The author would also like to thank her family for their continual support.

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Noncitizens’ Entitlement to Fundamentally Fair Removal Proceedings Gives Rise to a Protected Interest that Supports Due Process Claims 101 Holding that This Protected Interest Supports a Due Process Claim Does Not Contradict Other Courts’ Reasonings 103

THIS APPROACH IS PREFERABLE BECAUSE IT AVOIDS INCONSISTENT RESULTS AND POTENTIAL ISSUES..............................................106

Recognizing the Distinction Between the Right to Relief and a Fair Opportunity to Seek Relief........................................106 Removing the Artificial Distinction Between Stages in the Removal Proceeding.........................................................106 Supporting Congress’s Intent to Provide Avenues for Relief108 Remaining Focused on the Due Process Violation and Avoiding Dubious Results 108 Countervailing Reasons for the Concern of Burdening Court Systems .............................................................................109

PUBLIC POLICY CONCERNS ALSO DEMONSTRATE THAT COURTS SHOULD EXERCISE JURISDICTION..............................................110

Providing Noncitizens with the Minimal Protections Guaranteed by the Constitution 111 Upholding Underlying Immigration Law Goals...................114 Aligning with the Country’s Core Values of Justice and Fairness............................................................................116

CONCLUSION.. ..................................................................................117

ABSTRACT

Over the last several years, orders of removal requiring a noncitizen to leave the country have drastically increased, resulting in the removal of hundreds of thousands of individuals from the United States per year. Nonetheless, Congress has provided flexibility in otherwise stringent immigration laws by implementing avenues that allow immigrants to apply for and receive relief from removal, including discretionary forms of relief. Further, in an effort to protect noncitizens’ due process rights as provided by the Fifth Amendment’s Due Process Clause, Congress has permitted federal circuit courts of appeals to hear noncitizens’ due process claims. These courts may hear claims such as ineffective assistance of counsel or procedural due process claims that arose during the noncitizen’s removal proceedings and remand for a new hearing if the claims are meritorious.

Nevertheless, federal circuit courts are currently split over whether they have jurisdiction to hear a noncitizen’s ineffective assistance of counsel or procedural due process claims if the petitioner is seeking only discretionary relief the most widely available form of relief. If the court does not exercise jurisdiction, noncitizens seeking discretionary relief are not able to bring their claims forth and receive redress in the form of a new hearing, which would allow them to fairly present their case and application for relief.

This Article the first to focus specifically on this current rift between the federal circuit courts of appeals asks circuit courts to hold that they do have jurisdiction to hear the claims of noncitizens seeking discretionary relief because all noncitizens have a protected interest in fundamentally fair removal hearings. This interest supports noncitizens’ due process claims and, consequently, permits the court to exercise jurisdiction. The court may then hear noncitizens’ claims and ensure that noncitizens have a fair opportunity to present their case before being removed from the country, regardless of the type of relief they are seeking.

INTRODUCTION

Imagine that a man is facing removal proceedings. The possibility of deportation looms over his future. For twenty years, he has called the United States his home. He has built a family, a business, and relationships with neighbors, friends, and clients. Nevertheless, after discovering his lack of lawful immigration status, the Government initiates removal proceedings. Eager to remain in this country, obtain legal status, and maintain the life that he has built, the man hires an attorney to represent him. The man pays this attorney thousands of dollars to aid him in applying for cancellation of removal, a discretionary form of relief that Congress has made available to immigrants. This attorney, however, never goes to see the man while he is detained, never calls the man to explain the details of his case, never clarifies to the man what the requirements are for the discretionary relief he is seeking, and ultimately fails to obtain and submit the necessary evidence to support this man’s application for cancellation of removal. Predictably, the immigration judge denies relief and orders the man to be removed. Later, the attorney is disbarred due to a history of neglect in client matters, but this provides no relief for the man.1

Now imagine that a woman is facing removal proceedings. Fleeing her home nation a nation that has become consumed by warfare and violence and evading the political persecution that has led to the deaths of family members and friends, she crosses the border into the United States. She begins a new life free from this persecution. Nevertheless, she is later apprehended and detained. The government initiates removal proceedings. She obtains an effective attorney who aids her in applying for asylum, another form of discretionary relief that Congress has provided, which would allow her to safely remain in the country and continue her new life here. Nonetheless, during this proceeding, the immigration judge actively prevents her from making a case for asylum relief. Rather than remaining impartial, the immigration judge repeatedly interrupts her, belittles her, requires her to answer questions using only “yes” or “no,” and limits her ability to fully develop the facts of the claim and

1 See generally Calderon Rosas v. Att’y Gen. U.S., 957 F.3d 378, 382 (3d Cir. 2020) (providing a basis for the hypothetical).

present the evidence for her application for asylum. The woman consequently receives no relief and is ordered to be removed.2

Ordinarily, a noncitizen3 may bring constitutional claims such as ineffective assistance of counsel and procedural due process claims both of which are grounded in the Fifth Amendment that arose during removal proceedings to a federal circuit court of appeals.4 These courts are then able to remand for a new hearing if the claims are meritorious, allowing noncitizens to have a fair opportunity to present their case and application for relief before they are removed from the United States.5 Nevertheless, that may not be the case for the man and the woman in the hypotheticals above.

Currently, a circuit split exists on whether federal circuit courts have jurisdiction to hear a noncitizen’s ineffective assistance of counsel or procedural due process claim that arose during their removal proceeding if the petitioner is seeking only discretionary relief.6 The crux of the issue lies in whether noncitizens seeking only discretionary relief have a protected interest at stake, giving rise to a constitutional due process claim that would allow the court to exercise jurisdiction.7 Some courts have held that they have jurisdiction to hear these claims, finding a protected interest, while others have held that they do not.8 As such, depending on the

2 See generally Serrano Alberto v. Att’y Gen. U.S., 859 F.3d 208, 212 (3d Cir. 2017) (providing a basis for the hypothetical).

3 The terms “noncitizens” and “immigrants” are used interchangeably throughout this Article to refer to aliens presently in the United States in violation of the nation’s immigration laws. The term “alien” is defined as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). Not all noncitizens who are present in the country are here unlawfully. However, for purposes of this Article, these terms will be used to refer to both inadmissible aliens who are present in the United States and removable aliens. See id. §§ 1182, 1227.

4. See id. § 1252(a)(2)(D).

5. See Calderon Rosas, 957 F.3d at 390.

6 Id. at 385.

7 Id. at 384.

8 See, e.g., Calderon Rosas, 957 F.3d at 385; Fernandez v. Gonzales, 439 F.3d 592, 602 n.8 (9th Cir. 2006); Hernandez Mendoza v. Gonzales, 537 F.3d 976, 978 (9th Cir. 2007) (concluding that noncitizens have a protected interest in a full and fair hearing). But see Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 48 (11th Cir. 1999) (concluding that noncitizens seeking discretionary forms of relief do not have a protected interest at stake). See infra Part II.E (discussing the approaches that various federal circuit courts of appeals have taken regarding whether or not they have jurisdiction).

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jurisdiction where the immigration judge heard their cases,9 the man and the woman above may not be able to seek redress because the court may not exercise jurisdiction over their claims. Despite the fact that the man and woman were prevented from bringing forth their case and applications for discretionary relief by ineffective counsel or a biased immigration judge, if the court does not hear their claims, the man and woman will have no other option but to be removed. The man will be forced to leave behind his family and his business. The woman will walk back into a life of violence, danger, and potentially death.

Although federal circuit courts are currently split on the issue, the courts should hold that they do have jurisdiction to hear noncitizens’ ineffective assistance of counsel or procedural due process claims that arose from removal proceedings, even if they are seeking only discretionary relief, because noncitizens have a protected interest in fundamentally fair removal proceedings. This protected interest, thus, supports a due process claim, giving the court jurisdiction. As both the Supreme Court10 and the Board of Immigration Appeals11 recognize, a noncitizen is entitled to and may expect a fundamentally fair removal proceeding before they will be deported from the country giving rise to a protected interest. Additionally, the reasoning behind the holdings of the circuits that exercise jurisdiction does not actually contradict the reasoning behind holdings of the circuits who have held that they do not have jurisdiction. Moreover, by holding that they do have jurisdiction, the federal circuit courts will be able to support Congress’s intent to make these forms of relief available to noncitizens undergoing removal proceedings, prevent results that are

9. Daniel J. Esquivel, United States v. Estrada: The Sixth Circuit Misses the Mark in Finding No Due Process Violation in Immigration Judges’ Failure to Provide Notice of Eligibility for Discretionary Relief, 52 CREIGHTON L. REV 353, 359 (2019) (explaining that “an alien may appeal a BIA decision to the United States Court of Appeals for the circuit where the IJ is located”); 8 U.S.C.A. § 1252(b)(2).

10. See Sung v. McGrath, 339 U.S. 33, 50 (1950); Low v. Backus, 225 U.S. 460, 468 (1912); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Landon v. Plasencia, 459 U.S. 21, 32 33, 36 (1982).

11 See Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980); Matter of Ramirez Sanchez, 17 I&N Dec. 503, 505 (BIA 1980); Matter of Lam, 14 I&N Dec. 168, 170 (BIA 1972); In re Rodriguez Carrillo, 22 I&N Dec. 1031, 1033 (BIA 1989).

inconsistent with the requirements set forth by regulations, and take an approach that is more logically sound.12

Although other academic articles have addressed concerns about noncitizens’ due process claims or applications for discretionary relief, this article is the first to focus specifically on the current split in the circuit courts’ holdings regarding whether they have jurisdiction to hear a noncitizen’s ineffective assistance of counsel or procedural due process claim if the petitioner is seeking only discretionary relief. Additionally, this Article assesses the current stances of the circuit courts regarding this issue and outlines the arguments that support a court’s holding that it has jurisdiction because noncitizens have a protected interest in fundamentally fair hearings. This Article includes Supreme Court precedent and authority from the Board of Immigration Appeals’ decisions as well as public policy considerations.

Part II of this Article provides background on this issue, discussing the process of removal proceedings and where federal circuit courts may have jurisdiction, how both procedural due process and ineffective assistance of counsel claims have their roots in the Fifth Amendment, the forms of discretionary relief that are available to immigrants, and the current federal circuit split.13 In Part III, this Article discusses Supreme Court and Board of Immigration Appeals precedent regarding noncitizens’ entitlement to fundamentally fair removal proceedings. 14 Part IV argues that noncitizens have a protected interest in fundamentally fair removal proceedings, which supports a due process claim, providing the court with jurisdiction.15 Additionally, Part IV addresses the reasoning of the circuit courts that do not exercise jurisdiction over these claims, ultimately demonstrating that the reasoning of the courts that exercise

12. See Calderon Rosas v. Att’y Gen. U.S., 957 F.3d 378, 386 (3d Cir. 2020); Christen Chapman, Relief from Deportation: An Unnecessary Battle, 44 LOY. L.A. L. REV 1529, 1559 (2011).

13 See infra Part II (explaining removal proceedings and federal circuit court jurisdiction, ineffective assistance of counsel and due process claims, the nature of discretionary relief, and the current federal circuit court split).

14. See infra Part III (discussing Supreme Court and Board of Immigration Appeals authority that addresses noncitizens’ entitlement to fundamentally fair removal hearings).

15 See infra Part IV (arguing that federal circuit courts should hold that they have jurisdiction because noncitizens have a protected interest in fundamentally fair removal hearings).

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jurisdiction is not actually contradictory.16 Part V considers additional reasons why holding that the court does have jurisdiction to hear these claims is more logical and avoids potential issues.17 Part VI analyzes this issue from a public policy perspective, evaluating the significance of the protections that the Constitution has guaranteed noncitizens in light of the many hardships that noncitizens face, the immigration objectives of the country, and the nation’s identity in core values of fairness and justice.18 Part VII concludes that the federal circuit courts should hold that they have jurisdiction.19

A BRIEF HISTORY OF THE REMOVAL PROCESS AND NONCITIZENS’ INEFFECTIVE ASSISTANCE OF COUNSEL AND PROCEDURAL DUE PROCESS CLAIMS

Removal Proceedings and Federal Circuit Court Jurisdiction

Exercising its plenary power in this area of the law, the Legislative Branch has complete authority in determining the laws governing immigration into the United States.20 As the Supreme Court of the United States has provided, “over no conceivable subject is the legislative power of Congress more complete.”21 Congress has delegated this authority to the Executive Branch, granting the branch the responsibility of administering immigration laws.22 Pursuant to this authority, the Executive Branch has established agencies to accomplish this task.23 These agencies “may create regulations which

16 See infra Part IV (comparing the reasoning of the courts that exercise jurisdiction to the reasoning of the courts that do not exercise jurisdiction, ultimately demonstrating that these reasonings do not contradict).

17. See infra Part V (explaining that if the circuit courts hold that they have jurisdiction, they will be able to take a more consistent, logical approach that avoids potential issues).

18 See infra Part VI (discussing the various public policy arguments for why this solution is preferable).

19 See infra Part VII (concluding that circuit courts should hold that they have jurisdiction to hear noncitizens’ due process claims even if they are seeking only discretionary relief).

20. Esquivel, supra note 9, at 358.

21 Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)).

22 Esquivel, supra note 9, at 358.

23 Id.

they deem necessary in the administration of immigration laws.”24 Through this delegation of power, these agencies have set forth the regulations and procedural requirements that guide removal proceedings.25

The two types of noncitizens who may be subject to removal proceedings are inadmissible aliens and deportable aliens.26 Inadmissible aliens, such as undocumented immigrants, include those who are present in the country without a lawful admission.27 Deportable aliens, on the other hand, are individuals who have violated their conditions of entry by committing various criminal offenses or failing to abide by the requirements of their status.28 As such, deportable aliens may include permanent residents and other legal immigrants who “failed to comply with the conditions of their admission.”29 Both inadmissible aliens and deportable aliens, then, must undergo removal proceedings before potentially being removed.30

These proceedings “involve a two fold inquiry: (1) whether the noncitizen is removable; and, if so, (2) whether the noncitizen qualifies for any form of relief from removal.”31 These proceedings typically involve two hearings.32 The first hearing is a master calendar hearing where the court “informs the alien of the charges, takes any pleadings, and determines the destination country should the alien be ultimately removed.”33 The second hearing is a merits hearing where the Government and the noncitizen present evidence on the alleged immigration violations and the noncitizen’s 24 Id. 25 Id.

26 See 8 U.S.C. §1182, 1227.

27 Robert L. Koehl, Perpetual Finality: In Immigration Removal Proceedings, Motions to Reopen Create More Problems Than They Solve, 2 TEX. A&M L. REV. 107, 111 (2014) (citing 8 U.S.C. § 1182).

28. 8 U.S.C. § 1227.

29 Koehl, supra note 27, at 111. 30 Id

31 Julia C. Lauritzen, Recognizing a Due Process Right to be Made Aware of Discretionary Relief from Removal for Lawful Permanent Residents, 81 OHIO ST L.J. 111, 117 (2020).

32. Koehl, supra note 27, at 111.

33 Id. at 111 12 (citing Immigration Court Practice Manual, U.S. DEP’T OF JUST at 64 66, https://www.justice.gov/sites/default/files/eoir/legacy/2012/11/08/Chap%204.pdf) (last revised Apr. 1, 2008).

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application for relief.34 The immigration judge determines whether the noncitizen is removable as well as whether the alien meets the requirements for that particular form of relief and merits a favorable decision.35

In most cases, “it is relatively easy for the Government to prove the alleged immigration violations.”36 Therefore, the outcome of most removal proceedings ultimately depends on the noncitizen’s application for relief.37 Congress has outlined various forms of relief for which a noncitizen may apply, including “relief that may delay or prevent removal.”38 The noncitizen may apply for any of these forms of relief that are available and appropriate, including discretionary forms of relief.39 During the merits hearing, both the noncitizen and the Department of Homeland Security, representing the Government, “present arguments and evidence related to the [non citizens] application.”40 The immigration judge will then decide whether to grant the noncitizen’s application for relief from removal.41

Following the removal proceeding, a noncitizen “may appeal the [immigration judge’s] decision.”42 Typically, the noncitizen will appeal to the Board of Immigration Appeals, which is “the highest administrative body in immigration law” and “the primary authority in the interpretation and application of immigration law.”43 After the Board of Immigration Appeals renders a decision, the noncitizen may bring an appeal to the federal court of appeals in the circuit where the immigration judge conducted the proceeding.44 In addition, Congress has also permitted judicial review of “constitutional claims [and]

34 Id. at 112.

35 Id. (citing Immigration Court Practice Manual, U.S. DEP’T OF JUST at 75, https://www.justice.gov/sites/default/files/eoir/legacy/2012/11/08/Chap%204.pdf) (last revised Apr. 1, 2008).

36. Chapman, supra note 12, at 1545.

37 Id.

38 Koehl, supra note 27, at 112 13.

39 EOIR Fact Sheet, U.S. DEP’T OF JUST at 2 (Dec. 2017), https://www.justice.gov/eoir/page/file/eoir_an_agency_guide/download.

40 Id

41. Id. at 6.

42. Esquivel, supra note 9, at 358.

43 Id. at 358 59 (citing Board of Immigration Appeals, U.S. DEP’T OF JUST , https://www.justice.gov/eoir/board of immigration appeals (last visited Oct. 21, 2020)).

44 Id. at 359 (citing 8 U.S.C.A. § 1252(b)(2)).

questions of law” arising out of immigration proceedings.45 However, this power is limited.46 Federal judges may not prevent removal47 nor “substitute [their] discretion for that of the agency,”48 including “any judgment regarding the granting of relief” or “any other decision or action of the Attorney General.”49 Nevertheless, by exercising federal question jurisdiction, the appropriate federal circuit court of appeals may review constitutional claims and, if the claims are meritorious, provide redress by remanding for a new removal hearing.50

The Development of Noncitizen Due Process Rights Under the Fifth Amendment

The Supreme Court of the United States’s early jurisprudence determined that aliens were not entitled to due process protections while undergoing removal proceedings.51 The Court instead “treated exclusion proceedings and removal proceedings as conceptual equals” despite the fact that individuals undergoing removal proceedings were already physically present on U.S. soil and did not recognize additional protections for removal proceedings.52 As seen in several early cases regarding immigration regulation, the Supreme Court frequently acknowledged that the federal government had practically unlimited and unrestrained power “to regulate immigration through exclusion and expulsion, including retroactively and on the grounds of race.”53

45 8 U.S.C. § 1252(a)(2)(D); Julie Menke, Abuse of Power: Immigration Courts and the Attorney General’s Referral Power, 51 CASE W. RES J. INT’L L. 599, 605 (2020).

46 Juliet Stumpf, Fitting Punishment, 66 WASH &LEE L. REV 1683, 1727 28 (2009).

47. Id.

48. Omar v. Mukasey, 517 F.3d 647, 650 (2d. Cir. 2008).

49 8 U.S.C. § 1252(a)(2)(B).

50 See 8 U.S.C. § 1252(a)(2)(D); Calderon Rosas v. Att’y Gen. U.S., 957 F.3d 378, 390 (3d Cir. 2020).

51 Karen Nelson Moore, Aliens and the Constitution, 88 N.Y.U. L. REV 801, 850 (2013).

52 Id.

53 Id. (citing Fong Yue Ting v. United States, 149 U.S. 698, 727 28 (1893), Ekiu v. United States, 142 U.S. 651, 662 (1892), Chae Chan Ping v. United States, 130 U.S. 581, 606 07 (1889), Lem Moon Sing v. United States, 158 U.S. 538, 549 (1895)).

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In United States v. Ju, the Court even held that individuals “claiming to be lawful citizens as a defense to removal or exclusion were not entitled to due process protections.”54 The plaintiff, a man of Chinese descent, sought permission to land back in the country following a temporary departure but was denied re entry by immigration officers and was unable to seek judicial review of the Secretary of Commerce and Labor’s decision affirming the denial.55 The Court noted that Congress had the authority to exclude noncitizens from the country based on race,56 demonstrating that “in the absence of the territorial connection established by presence, even the right of a citizen to remain [in the United States] could at times be at risk.”57

Nevertheless, at the turn of the twentieth century, the Supreme Court recognized that the Due Process Clause of the Fifth Amendment applies to noncitizens undergoing removal proceedings and began enforcing these constitutional limits within the immigration sphere.58 The Court created “divergent constitutional regimes for removal and for exclusion, using physical presence [within the United States] as the key distinguishing factor.”59 The Court concluded that noncitizens who are present on United States soil “have a greater stake in their continued presence” in the country, thus providing them “the right to challenge the basis for their removal.”60 In 1903, after hearing Yamataya v. Fisher, the Supreme Court held that once a noncitizen “has entered the country,” even if he or she is unlawfully present, the noncitizen is entitled to receive “all opportunity to be heard upon the questions involving his right to be and remain in the United States” before he or she can be removed from the country.61 For the first time, the Court “acknowledged the potential validity of due process claims in the removal context.”62

In the decades that have followed, the Supreme Court has continued to recognize the due process rights of noncitizens

54 Id. (citing United States v. Ju, 198 U.S. 253, 262 (1905)).

55 United States v. Ju, 198 U.S. 253, 258 59, 262 63 (1905).

56 Id. at 261.

57 Earl M. Waltz, Citizenship and the Constitution: A History and Critique of the Supreme Court’s Alienage Jurisprudence, 28 ARIZ. ST. L.J. 1135, 1152 (1997) (citing Ju, 198 U.S. 253).

58. Moore, supra note 52, at 851. 59 Id 60 Id

61 Yamataya v. Fisher, 189 U.S. 86, 101 (1903).

62 Moore, supra note 52, at 851.

undergoing removal proceedings.63 Relying on the terminology that the Founding Fathers used in the Constitution, the Court has noted that the Due Process Clause applies to all “person[s]” who are present in the United States, including noncitizens who are here without lawful status.64 As the remedy of removal has become a frequently used tool to regulate immigration into the country,65 the Supreme Court has also stressed the serious consequences of removal proceedings and the high stakes involved, which place “a great hardship on the individual.”66 Therefore, as the Court has provided, “[m]eticulous care must be exercised to ensure fairness” in these proceedings, as an individual being removed is a serious consequence.67

Today, the federal government still has plenary power in determining immigration law.68 “Because the government’s power is at its zenith” in this area of the law, its “power to exclude and deport aliens remain[s] largely unlimited.”69 Nevertheless, noncitizens’ constitutional rights such as those arising from the Due Process Clause of the Fifth Amendment impose restrictions on this power.70 These rights create limits on the acceptable nature of deportation proceedings and open the door for noncitizens to bring forth due process claims to a federal circuit court of appeals after their removal hearings.71

Ineffective Assistance of Counsel Claims and Their Roots in the Fifth Amendment

Along with procedural due process claims, a petitioner may also bring forth an ineffective assistance of counsel claim based on an attorney’s work during the petitioner’s removal proceeding because these claims are rooted in the Fifth Amendment.72 Congress has provided noncitizens with a statutory right to retain counsel.73 As

63 Id. 64 U.S. CONST amend. V; Reno v. Flores, 507 U.S. 292, 306 (1993). 65 Moore, supra note 52, at 851. 66 Bridges v. Wixon, 326 U.S. 135, 154 (1945). 67 Id 68. Moore, supra note 52, at 848 49. 69 Id. at 849. 70 Id 71 See id. 72 Matter of Lozada, 19 I&N Dec. 637, 638 (BIA 1988). 73 8 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. § 1240.3.

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such, a noncitizen may be “represented, at no expense to the government, by counsel of the alien’s choosing who is authorized to practice in such proceedings.”74

Matter of Lozada provides that “[a]ny right a respondent in deportation proceedings may have to counsel is grounded in the [F]ifth [A]mendment guarantee of due process.”75 “Ineffective assistance of counsel in a [removal] proceeding is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.”76 Thus, in order to bring forth an ineffective assistance of counsel claim, the alien must show: (1) the counsel’s assistance was so ineffective that it “impinged upon the fundamental fairness of the hearing in violation of the [F]ifth [A]mendment [D]ue [P]rocess [C]lause” and (2) that the noncitizen was prejudiced by the performance of his or her counsel.77

Although Matter of Lozada was overruled by Matter of Compean in 2009, Matter of Compean was later vacated by Attorney General Holder in the same year.78 In so doing, Attorney General Holder instructed “the Board of Immigrations Appeals and the [immigration judges] to continue [applying] the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.”79 He emphasized the importance of a framework for analyzing claims of ineffective assistance of counsel, which arise from noncitizens’ Fifth Amendment Due Process rights and their right to be represented by counsel, and reinstated the pre Compean standards.80 Therefore, Matter of Lozada remains the current guiding framework for claims of ineffective assistance of counsel.81

74. 8 U.S.C. § 1229a(b)(4)(A).

75 Matter of Lozada, 19 I&N Dec. at 638.

76 Id.

77 Id. (citing Magallanes Damian v. I.N.S., 794 F.2d 491 (9th Cir. 1986); Mohsseni Behhahani v. I.N.S., 796 F.2d 249 (9th Cir. 1986)).

78. Jean Pierre Espinoza, Ineffective Assistance of Counsel in Removal Proceedings Matter of Compean and the Fundamental Fairness Doctrine, 22 FLA. J. INT’L L. 91 (2010).

79 Id. at 91 92.

80 Id. at 91.

81 Id. at 109.

Discretionary Forms of Relief and Their Commonality

For many noncitizens, their application for relief is vital to their ability to avoid removal and remain in the country. As discussed earlier, although the proceeding requires a two part inquiry, the government is typically able to demonstrate that the noncitizen has violated immigration laws.82 Therefore, for most noncitizens, the outcome of their removal proceeding will ultimately “turn on [their] application for relief.”83

While Congress has made various forms of relief available to noncitizens undergoing removal proceedings, most of these forms for which noncitizens may apply are discretionary in nature.84 Asylum and cancellation of removal two well-known, frequently requested forms of relief fall under this discretionary category. Other forms of discretionary relief that a noncitizen may apply for “include restriction on removal, a waiver of a removal ground, adjustment of status, deferred enforced departure, temporary protected status, voluntary departure, stay of removal, and private bills.”85

In line with their discretionary nature, these forms of relief involve two components.86 First, the noncitizen must meet the statutory eligibility criteria that Congress has outlined for the specific type of relief that they are applying for.87 Once the immigration judge has determined that the noncitizen meets the threshold criteria, the immigration judge must decide whether the noncitizen merits “a favorable exercise of discretion” and will either grant or deny the noncitizen’s application for relief.88 This second component distinguishes discretionary forms of relief from mandatory forms of relief.89 However, mandatory forms of relief have a much higher standard of proof, making these forms of relief difficult for noncitizens to apply for or to receive. Consequently, the outcome of a noncitizen’s removal proceeding will oftentimes depend on their

82. Lauritzen, supra note 32, at 117; Chapman, supra note 13, at 1544 45.

83 Chapman, supra note 13, at 1545.

84 Lauritzen, supra note 32, at 117; Won Kidane, Revisiting the Rules of Procedure and Evidence Applicable in Adversarial Administrative Deportation Proceedings: Lessons from the Department of Labor Rules of Evidence, 57 CATH U. L. REV. 93, 133 n.216 (2007).

85. Chapman, supra note 13, at 1545 n.71.

86 Lauritzen, supra note 32, at 113 n.13.

87 Id. 88 Id.

89 See Kidane, supra note 85, at 133 n.216.

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application for discretionary relief, including the noncitizen’s ability to demonstrate that they are statutorily eligible and merits “a favorable exercise of discretion.”90

The Current Federal Circuit Court Split

Today, a circuit split exists on whether federal circuit courts have jurisdiction to hear a noncitizen’s ineffective assistance of counsel or procedural due process claims that arose during their removal proceeding, even if the petitioner is seeking only discretionary relief.91 As discussed earlier, federal circuit courts have jurisdiction over constitutional claims and questions of law, including ineffective assistance of counsel and procedural due process claims involving a noncitizen’s removal proceeding both of which are rooted in the Fifth Amendment’s Due Process Clause.92 Nevertheless, a “claim of deprivation of due process requires that a cognizable liberty or property interest be at stake” in order for the court to have jurisdiction.93

The crux of the issue here, then, is whether a petitioner who is seeking only discretionary relief has a protected interest at stake.94 If the petitioner has a protected interest, then the court is able to hear the petitioner’s ineffective assistance of counsel or procedural due process claims, decide on the merits of the claims, and ultimately provide redress by remanding for a new hearing before the petitioner can be removed.95 If, however, the petitioner does not have a protected interest at stake, the court will be unable to hear the petitioner’s claims or provide redress, even if the petitioner’s hearing was truly impacted by ineffective assistance of counsel or another procedural due process issue.96

Circuit Courts that Exercise Jurisdiction Over Both Types of Claims

Several circuits have held that they have jurisdiction to hear both ineffective assistance of counsel and procedural due process claims

90 Id. at 133.

91 See Calderon Rosas v. Att’y Gen. U.S., 957 F.3d 378, 385 (3d Cir. 2020).

92 Due Process in Immigration Proceedings, Feb. 2021, at E 29 E30, https://cdn.ca9.uscourts.gov/datastore/uploads/immigration/immig_west/E.pdf.

93 Calderon Rosas, 957 F.3d 378 at 386 (quoting Rivera v. Session, 903 F.3d 147, 150 (1st Cir. 2018)).

94 See id. at 383 84.

95 See id. at 390.

96 See Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).

made by petitioners seeking only discretionary relief. In Fernandez v. Gonzales, the Ninth Circuit noted that discretionary forms of relief are a privilege that Congress has made available and thus do not support an entitlement that can give rise to a protected interest.97 Nevertheless, as the court clarified, “procedural due process and ineffective assistance of counsel claims . . . are predicated on the right to a full and fair hearing” a right that serves as a protected interest for due process claims.98 Relying on this analysis, the Ninth Circuit has continued to exercise jurisdiction over both types of claims.99

The Third Circuit has also held that it has jurisdiction to hear both types of claims.100 In Calderon Rosas v. Attorney General, the court concluded that procedural due process and ineffective assistance of counsel claims “are no less cognizable by petitioners seeking discretionary relief.”101 These petitioners are entitled to “a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a neutral and impartial arbiter.”102 This entitlement to “fundamentally fair removal proceedings . . . constitutes a protected interest, supporting a due process claim.”103

Lastly, the Seventh Circuit also exercises jurisdiction over both procedural due process claims and ineffective assistance of counsel claims. The court has found that, although noncitizens do not have a property or liberty interest in discretionary relief, the court does have jurisdiction to hear claims concerning “the procedural sufficiency of an immigration hearing.”104 A noncitizen’s hearing must be “a fair one” with “a full and fair opportunity to be heard.”105 As such, the court may hear both types of claims.106

97. Fernandez v. Gonzales, 439 F.3d 592, 602 n.8 (9th Cir. 2006). 98. Id. 99 See Gonzales, 439 F.3d at 602 n.8; Hernandez Mendoza v. Gonzales, 537 F.3d 976, 978 (9th Cir. 2007).

100 Calderon Rosas, 957 F.3d at 386. 101 Id. 102 Id. (quoting Serrano Alberto v. Att’y Gen. U.S., 859 F.3d 208 (3d Cir. 2017). 103 Id. 104 Delgado v. Holder, 674 F.3d 759, 766 (7th Cir. 2012). 105 Id. (citing Apouviepseakoda v. Gonzales, 475 F.3d 881, 886 (7th Cir. 2007)).

106 Id. at 759; Zambrano Reyes v. Holder, 725 F.3d 744 (7th Cir. 2013).

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Circuit Courts that Exercise Limited Jurisdiction

Other circuit courts exercise limited jurisdiction over these types of claims. Some of these courts have held that they have jurisdiction over only ineffective assistance of counsel claims but not procedural due process claims. The Fifth Circuit has held that it does not have jurisdiction over procedural due process claims because “the failure to receive relief that is purely discretionary in nature does not amount to the deprivation of a liberty interest.”107 As such, the petitioner cannot allege that his due process rights have been violated.108 Nevertheless, the Fifth Circuit exercises jurisdiction over ineffective assistance of counsel claims.109 The court has stated that it “must have jurisdiction over . . . petition[s] to the extent [they] [raise] a claim of [ineffective assistance of counsel] which is a constitutional claim presenting questions of law.”110

The First Circuit has likewise held that it does not have jurisdiction over procedural due process claims because “a claim of deprivation requires that a cognizable liberty or property interest be at stake” and discretionary relief does not “rise to the level of such a protected interest.”111 As such, the court will not exercise jurisdiction over these claims if the petitioner is seeking only discretionary relief.112 Nonetheless, the First Circuit has held that it has jurisdiction over ineffective assistance of counsel claims, recognizing that “where counsel does appear for the respondent, incompetence in some situations may make the proceeding fundamentally unfair and give rise to a Fifth Amendment due process objection.”113 Noncitizens undergoing removal proceedings must be able to present their cases and receive a fundamentally fair process.114

Additionally, some of the circuit courts exercise jurisdiction over one type of claim but have not addressed the other type of claim. The Second Circuit, for instance, has held that it may exercise jurisdiction

107 Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (quoting Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999)).

108 Id. at 475 76.

109 Diaz v. Sessions, 894 F.3d 222, 226 (5th Cir. 2018).

110. Id. at 227.

111. Rivera v. Sessions, 903 F.3d 147, 150 51 (1st Cir. 2018) (quoting Kandamar v. Gonzales, 464 F.3d 65, 69 (1st Cir. 2006)).

112 Id.

113 Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir. 2001).

114 Id.

over ineffective assistance of counsel claims.115 In Omar v. Mukasey, the court recognized that “ruling on an ineffective assistance of counsel claim does not require [the court] to substitute [its] discretion for that of the agency.”116 Instead, “it is simply a determination that the alien was not given a fair hearing because of counsel’s errors.”117 Because such a claim is a constitutional claim, the court has “jurisdiction to consider the issue of ineffective assistance of counsel.”118 Nevertheless, the Second Circuit has yet to address procedural due process claims.119

The Tenth Circuit, on the other hand, has held that it has jurisdiction to review procedural due process claims.120 Recognizing that a noncitizen “has no liberty or property interest in obtaining purely discretionary relief” and that they “do not have a constitutional right to enter or remain in the United States,” the court nevertheless held that it had jurisdiction to hear these claims because noncitizens have procedural due process rights, including “an opportunity to be heard at a meaningful time and in a meaningful matter.”121 The Tenth Circuit, however, has not addressed whether it has jurisdiction to hear petitioners’ ineffective assistance of counsel claims if they are seeking solely discretionary relief.122

Circuit Courts that Do Not Exercise Jurisdiction Over Either Type of Claim

Even still, some circuit courts do not exercise jurisdiction over either ineffective assistance of counsel or procedural due process claims. In Pinos Gonzalez v. Mukasey, the Eighth Circuit concluded that because the petitioner did not have a protected interest in the discretionary relief that he had applied for, he could not assert a procedural due process claim that would provide the court with jurisdiction.123 Likewise, in Nativi Gomez v. Ashcroft, the court concluded that even if the petitioner had satisfied the Lozada

115 Omar, 517 F.3d at 650.

116 Id. 117 Id. 118 Id.

119. Calderon Rosas, 957 F.3d at 385 n.3.

120. Salgado Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013).

121 Id. (quoting de la Llana Castellon v. I.N.S., 16 F.3d 1093, 1096 (10th Cir. 1994)).

122 Calderon Rosas, 957 F.3d at 385 n.3.

123 Pinos Gonzalez v. Mukasey, 519 F.3d 436, 441 (8th Cir. 2008).

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requirements for an ineffective assistance of counsel claim, the court did not have jurisdiction to hear the claim or provide relief because “a discretionary privilege cannot create a constitutional entitlement.”124 Therefore, the petitioner was unable to establish that his due process rights had been violated.125

Analogous to the Eighth Circuit, the Eleventh Circuit does not exercise jurisdiction over either type of claim.126 In Scheerer v. United States Attorney General, the court provided that because the petitioner did not have a constitutionally protected interest in the discretionary relief for which he had applied, he could not demonstrate a due process violation.127 As such, the court concluded that it may not exercise jurisdiction.128 Similarly, the court determined in Mejia Rodriguez v. Reno that even though “aliens enjoy the right to the effective assistance of counsel in deportation proceedings,” the failure to receive discretionary relief was not a deprivation of a protected interest.129 Focusing on the discretionary nature of the relief and an alien’s inability to expect such relief, the court ultimately decided that it was unable to hear any claims of ineffective assistance of counsel from petitioners seeking only discretionary relief.130

SUPREME COURT AND BOARD OF IMMIGRATION APPEALS PRECEDENT ON FUNDAMENTALLY FAIR REMOVAL PROCEEDINGS

From the first case in which the Supreme Court of the United States acknowledged that noncitizens are protected by the Due Process Clause of the Fifth Amendment, the Court has continuously expressed that noncitizens are entitled to fundamentally fair removal hearings.131 In Yamataya v. Fisher, the Court recognized for the first time that noncitizens had due process rights, even while undergoing removal proceedings.132 The Court went on to state that a noncitizen “who has entered the [United States],” even if they are illegally

124 Nativi Gomez v. Ashcroft, 344 F.3d 805, 807 08 (8th Cir. 2003).

125 Id. at 807 09.

126 Scheerer, 513 F.3d at1253 ; Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 48 (11th Cir. 1999).

127. Scheerer, 513 F.3d at 1253.

128 Id.

129 Mejia Rodriguez, 178 F.3d at 1146 47.

130 Id. at 1148.

131 See Yamataya v. Fisher, 189 U.S. 86 (1903).

132 Id. at 101.

present in the country, may not be removed without the fair opportunity “to be heard upon the questions involving his [or her] right to be and remain in the United States.”133

Shortly after Yamataya, in Low v. Backus, the Court provided that noncitizens can successfully attack the constitutionality of their removal hearings if the proceedings were “manifestly unfair,” the executive officers “prevent[ed] a fair investigation,” or there was a “manifest abuse of the discretion,” thereby preventing the noncitizen from receiving a full and fair hearing.134 As such, the decisions made by executive officers in removal proceedings may only stand when the hearings are “fairly conducted.”135

Over the decades that have followed, the Court has continued to assert that noncitizens are entitled to receive fundamentally fair removal proceedings. In Sung v. McGrath, the Court stated that “[w]hen the Constitution requires a hearing,” such as a removal hearing, it requires a “fair one.”136 Just three years later, in Shaughnessy v. United States ex. rel. Mezei, the Court recognized that once an immigrant has entered the country whether they are present legally or illegally, temporarily or permanently he or she “may be expelled only after a proceeding that conforms to traditional standards of fairness encompassed in due process of law.”137 This idea was later reiterated in Landon v. Plasencia, which provided that the Fifth Amendment guarantees noncitizens who are threatened with removal from the country the right to a hearing that “ensure[s] fairness.”138

Additionally, “[w]hen Congress directs an agency to establish a procedure” or delegates authority to another branch, such as the Executive Branch, “it can be assumed that Congress [still] intends that procedure to be a fair one.”139 As discussed in Califano v. Yamasaki, the Supreme Court has historically “been willing to assume a congressional solicitude for fair procedure, absent explicit statutory language to the contrary.”140 In fact, the Court has

133 Id

134 Low v. Backus, 225 U.S. 460, 468 (1912). 135 Id.

136. Sung v. McGrath, 339 U.S. 33, 50 51 (1950).

137. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).

138 Landon v. Plasencia, 459 U.S. 21, 32 33, 36 (1982).

139 Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (citing Califano v. Yamasaki, 442 U.S. 682, 693 (1979)).

140 Yamasaki, 442 U.S. at 693.

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repeatedly demonstrated its “concern that traditional forms of fair procedure not be restricted . . . without the most explicit action by the nation’s lawmakers” and that those affected by administrative action receive “the traditional safeguards of due process.”141

The Board of Immigration Appeals has also continuously expressed that noncitizens undergoing removal proceedings are entitled to full and fair hearings on their claims. In Matter of Toro, in ruling over the use of certain evidence in a removal proceeding, the Board stated that noncitizens may not be deprived of the “[F]ifth [A]mendment’s due process requirement of fundamental fairness.”142

Likewise, in Matter of Ramirez Sanchez, the Board provided that the evidence used to establish removability could not impede on the fundamental fairness of the proceeding owed to the noncitizen.143

Considering a different issue in Matter of Lam, the Board of Immigration Appeals provided that if an immigration judge does not serve “as an impartial trier of fact,” the hearing will be “lacking in the fundamental fairness required by due process.”144

Furthermore, the Board of Immigration Appeals has asserted that the regulations set forth for conducting removal hearings give rise to an expectation that a noncitizen will receive a full and fair hearing prior to being removed.145 In In re Rodriguez Carrillo, the Board discussed several of these regulations, including those that require the immigration judge to provide a record of the hearing, guarantee that the noncitizen will have “an adequate opportunity to contest the [i]mmigration [j]udge’s determinations,” and assure the noncitizen that they will receive “notice of the factual and legal basis of the Immigration Judge’s decision.”146 The Board asserted that these regulations “serve to ensure that the hearing conducted by the [i]mmigration [j]udge is fundamentally fair.”147

141 Greene v. McElroy, 360 U.S. 474, 507 08 (1959).

142. Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980).

143. Matter of Ramirez Sanchez, 17 I&N Dec. 503, 505 (BIA 1980).

144 Matter of Lam, 14 I&N Dec. 168, 170 (BIA 1972).

145 See In re Rodriguez Carrillo, 22 I&N Dec. 1031, 1033 (BIA 1989).

146 Id.

147 Id.

THE CIRCUIT COURTS SHOULD HOLD THAT THEY HAVE JURISDICTION BECAUSE NONCITIZENS HAVE A PROTECTED INTEREST IN FUNDAMENTALLY FAIR REMOVAL PROCEEDINGS

Although federal circuit courts are currently split on the issue, the courts should hold that they have jurisdiction to hear noncitizens’ ineffective assistance of counsel and procedural due process claims that arise from removal proceedings, even if the noncitizens are seeking only discretionary relief, because noncitizens have a protected interest in fundamentally fair removal proceedings. Furthermore, the reasonings of the circuit courts that have held that they may exercise jurisdiction does not actually contradict the reasonings of the circuit courts that have held that they may not exercise jurisdiction. As such, all circuit courts will be able to hold that they have jurisdiction using this approach without conflicting with prior reasonings.

Noncitizens’ Entitlement to Fundamentally Fair Removal Proceedings Gives Rise to a Protected Interest that Supports Due Process Claims

For the federal circuit court of appeals to have jurisdiction to review final orders of removal, the petitioner must have a constitutional claim.148 Therefore, if a noncitizen wants to bring a claim under the Due Process Clause of the Fifth Amendment, the noncitizen must be able to demonstrate he or she has a protected property or liberty interest at stake.149 Without a protected interest, such as a liberty interest arising from an expectation or interest created by the Constitution or by statutes and regulations,150 the court will be unable to hear the noncitizen’s ineffective assistance of counsel or procedural due process claim.151 As the Supreme Court has held, a noncitizen undergoing removal proceedings does not have a vested right “to stay and live and work in this land.”152 Therefore, the noncitizen must have a protected interest elsewhere.

148 8 U.S.C. § 1252(a)(2)(D).

149 Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 COLUM. L. REV. 1625, 1651 52 (1992).

150 Chapman, supra note 12, at 1556.

151 See Calderon Rosas, 957 F.3d at 383 84.

152 Landon v. Plasencia, 459 U.S. 21, 34 35 (1982) (quoting Bridges v. Wixon, 326 U.S. 135, 154 (1945)).

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Here, however, because noncitizens are entitled to and may expect a full and fair proceeding before removal, they have a protected interest at stake. First, over the past several decades, the Supreme Court of the United States has reiterated that removal proceedings must be fair.153 The Court has demonstrated that noncitizens are entitled to receive “all opportunity to be heard upon the questions involving [their] right to be and remain in the United States” before being removed.154 Irrespective of whether the noncitizen is here lawfully or unlawfully, the noncitizen “may be expelled only after a proceeding that conforms to traditional standards of fairness.”155

The Board of Immigration Appeals’ decisions support this contention as well.156 As evidenced by the decisions noted above, the Board has indicated that noncitizens must receive a removal hearing that comports with due process requirements of fundamental fairness.157 Additionally, the Board of Immigration of Appeals has asserted that the regulations setting forth the guidelines for conducting removal hearings are meant to ensure that the proceedings are conducted fairly and that noncitizens have a fair opportunity to present their case.158

Furthermore, the Supreme Court “has been willing to assume a congressional solicitude for fair procedure.”159 As such, even “when Congress directs an agency to establish a procedure” or delegates authority to another branch, “it can be assumed that Congress intends that procedure to be a fair one.”160 Here, Congress has delegated authority “in the administration of immigration laws” to the Executive Branch, including the Attorney General.161 With this power, the executive’s agencies may develop regulations establishing

153. See supra Part III (discussing Supreme Court precedent on noncitizens’ right to a fundamentally fair removal proceeding).

154 Yamataya, 189 U.S. at 101.

155 Shaughnessy, 345 U.S. at 212.

156 See supra Part III (discussing decisions from the Board of Immigration Appeals stating that noncitizens are entitled to fundamentally fair removal hearings).

157. See id.

158 In re Rodriguez Carrillo, 22 I&N Dec. 1031, 1033 (BIA 1989).

159 Califano v. Yamasaki, 442 U.S. 682, 693 (1979).

160 Marincas, 92 F.3d at 203 (citing Califano v. Yamasaki, 442 U.S. 682, 693 (1979)).

161 Esquivel, supra note 9, at 358.

the procedural requirements and safeguards for removal hearings.162 Additionally, the Attorney General has been provided with the discretion to grant or deny discretionary relief, such as asylum or cancellation of removal.163 These immigration procedures, then, must demonstrate the same concern for fair procedure.164 Therefore, even if an applicant does not have a constitutional right to discretionary relief, there is still an expectation that a hearing on his or her application will be full and fair.

Because noncitizens possess an identifiable liberty interest that supports a due process claim, federal circuit courts have jurisdiction to hear both ineffective assistance of counsel and procedural due process claims brought forth by noncitizens. While federal circuit courts cannot “substitute [their] discretion for that of the agency,” they do have jurisdiction to hear constitutional claims or questions of law.165 As noted by the Ninth and Third Circuits, by recognizing that noncitizens have a protected interest in a full and fair removal hearing, the noncitizen’s claim will be a valid, constitutional claim.166 Consequently, the federal circuit court will have the ability to exercise jurisdiction to hear these claims, decide on the merits, and provide redress if necessary.167

Holding that This Protected Interest Supports a Due Process Claim Does Not Contradict Other Courts’ Reasonings

Although some circuit courts, such as the Eighth and Eleventh Circuits, have held that they do not have jurisdiction over one or both types of claims, the analysis of the courts that do exercise jurisdiction does not actually contradict the reasoning of the courts that do not. Consequently, this approach would provide all circuit courts including those that have held that they do not have jurisdiction with a clearly defined interest to support a due process claim that a noncitizen has raised in connection with his or her removal proceeding. Every circuit court would then be able to hold that they have jurisdiction to hear these procedural due process and ineffective

162 Id.

163 See 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C. § 1229b(a) (b).

164. See Califano, 442 U.S. at 693.

165. 8 U.S.C. § 1252(a)(2)(D); Calderon Rosas, 957 F.3d at 385 (citing Omar v. Mukasey, 517 F.3d 647, 650 (2d Cir. 2008)).

166 Fernandez v. Gonzales, 439 F.3d 592, 602 n.8 (9th Cir. 2006); Calderon Rosas, 957 F.3d at 386.

167 See Calderon Rosas, 957 F.3d at 386.

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assistance of counsel claims without contradicting their prior reasoning.

Both the Eighth and Eleventh Circuits do not exercise jurisdiction over either ineffective assistance of counsel or procedural due process claims because an alien cannot have a constitutionally protected liberty or property interest in discretionary relief.168 The Fifth and First Circuits have also held that they do not have jurisdiction over procedural due process claims because the petitioner does not have a protected interest at stake if he or she is seeking purely discretionary relief.169 However, while the Third and Ninth Circuits have held that they do have jurisdiction over both types of claims, it is not because they have found a protected interest in discretionary forms of relief.170 In fact, the Ninth Circuit has noted that “discretionary relief is a privilege created by Congress” and that a noncitizen cannot expect to receive this relief because the Attorney General has complete discretion.171 Therefore, noncitizens do not have a fundamental right to this type of relief.172 The Third Circuit has likewise recognized that noncitizens do not have a constitutional right to discretionary relief.173

Nonetheless, by holding that non citizens have a protected interest in fundamentally fair removal proceedings, the type of relief sought by the petitioner is no longer significant to the analysis of whether he or she has a protected interest supporting a due process claim. As the Ninth Circuit has noted, “procedural due process claims and ineffective assistance of counsel claims . . . are not affected by the nature of the relief sought” because “they are predicated on the right to a full and fair hearing.”174 Therefore, courts do not have to differentiate between these claims “based on whether the petitioners raising them [are seeking] discretionary or mandatory relief.”175 Because all non citizens have this interest at stake, even if a

168. See Pinos Gonzalez v. Mukasey, 519 F.3d 436, 441 (8th Cir. 2008); Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).

169 Assad v. Ashcroft, 378 F.3d 471, 475 76 (5th Cir. 2004); Rivera v. Sessions, 903 F.3d 147, 150 51 (1st Cir. 2018).

170 Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003); Tovar Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004); Cham v. Att’y Gen. U.S., 445 F.3d 683, 691 (3d Cir. 2006).

171 Munoz, 339 F.3d at 954.

172 Tovar Landin, 361 F.3d at 1167.

173 Cham, 445 F.3d at 691.

174 Fernandez, 439 F.3d at 602 n.8.

175 Calderon Rosas, 957 F.3d at 385.

petitioner is seeking only discretionary relief, such as asylum or cancellation of removal, the circuit court will be able to exercise jurisdiction.

Although some circuit courts have held that they have jurisdiction over both types of claims while others have not, the reasons behind these distinctive holdings are not actually in conflict. The circuit courts agree that a non citizen does not have a constitutionally protected liberty or property interest in receiving a discretionary form of relief during his or her removal proceedings.176 Nevertheless, the Third and Ninth Circuit Courts have taken the analysis a step further and found a protected interest in fundamentally fair removal hearings instead, which provides the basis for a due process claim.177

This approach would allow circuit courts, such as the Eighth and Eleventh Circuits, to hold that they have jurisdiction over non citizens’ ineffective assistance of counsel or procedural due process claims, even if they are seeking only discretionary relief, without contradicting their previous reasons.178 Furthermore, for circuits that have held that they do have jurisdiction to hear one or both of these types of claims without expressly providing a protected interest, this approach would allow them to ground their holdings in a clearly defined protected interest. Ultimately, holding that aliens have a protected interest in fundamentally fair removal hearings would not disturb long-recognized precedent that there cannot be a protected interest in “an act of grace” provided by the Attorney General.179 Moreover, such a holding would fit well with Supreme Court and Board of Immigration Appeals precedent recognizing an entitlement to, and expectation of, a full and fair hearing before a noncitizen is ordered to be removed.180

176 See Mejia Rodriguez, 178 F.3d at 1146 47; Ashki v. I.N.S., 233 F.3d 913, 921 (6th Cir. 2000); Munoz, 339 F.3d at 954.

177 See Calderon Rosas, 957 F.3d at 386; Fernandez, 439 F.3d at 602, n.8.

178. See Pinos Gonzalez, 519 F.3d, at 441; Mejia Rodriguez, 178 F.3d at 1146 48.

179 Jay v. Boyd, 351 U.S. 345, 354 (1996).

180 See supra Part III (examining Supreme Court and Board of Immigration Appeals precedent stating that noncitizens have a right to fundamentally fair removal hearings).

THIS APPROACH IS PREFERABLE BECAUSE IT AVOIDS INCONSISTENT RESULTS AND POTENTIAL ISSUES

If the circuit courts hold that they do have jurisdiction because petitioners have a protected interest in fundamentally fair removal hearings, they will be able to avoid the issues that plague a finding of no jurisdiction. The circuit courts’ reasoning in concluding that aliens seeking discretionary relief may not bring procedural due process and ineffective assistance of counsel claims is dubious and could ultimately lead to inconsistent results.

Recognizing the Distinction Between the Right to Relief and a Fair Opportunity to Seek Relief

While noncitizens are not entitled to receive discretionary forms of relief, “it does not logically follow that noncitizens are [thus] not entitled to a fair hearing” in which they may present their applications and supporting evidence before an impartial tribunal.181 There is a distinction between a right to receive or even be eligible for relief and a right to a fair opportunity to seek that relief. However, as the Third Circuit noted, the arguments set forth by the circuit courts that have held that they do not have jurisdiction “conflate[] the existence of a statutory entitlement with the fairness of the process” that a petitioner is entitled to receive.182 As discussed earlier, the petitioner must rely upon a favorable exercise of discretion to successfully obtain this form of relief. Yet, even in hearings where the petitioner is seeking only discretionary relief, he or she must be given “all opportunity to be heard upon the questions involving his right to be and remain in the United States.”183

Removing the Artificial Distinction Between Stages in the Removal Proceeding

The approach taken by the circuit courts that do not exercise jurisdiction is also problematic because it produces an artificial distinction between disputing the alleged immigration violations and presenting a case for one’s application for discretionary relief.184 Supreme Court precedent has held that noncitizens can only be

181 Chapman, supra note 12, at 1558.

182 Calderon Rosas, 957 F.3d at 386.

183 Yamataya, 189 U.S. at 101.

184 Chapman, supra note 12, at 1558.

removed after a full and fair hearing.185 Nonetheless, many of these circuits have not required that the relief stage in the merits hearing “conform to traditional standards of fairness on the grounds that noncitizens have no liberty interest in discretionary forms of relief.”186 Thus, in cases where the noncitizen alleged that the immigration judge prohibited the noncitizen from introducing witnesses or other evidence to support his or her application for discretionary relief, for instance, these courts have held that the noncitizen does not have a valid claim.187

Nevertheless, the due process protections guaranteed to noncitizens under the Fifth Amendment do not stop at the end of the first hearing or even after the first part of the inquiry is answered. Most immigration removal proceedings involve at least two hearings a master calendar hearing and a merits hearing.188 Further, the merits hearing involves the consideration of two questions: “whether the noncitizen is removable” as well as whether the noncitizen “qualifies for any form of relief for removal” and merits “a favorable exercise of discretion.”189 Nevertheless, both inquiries and both hearings compose only one removal proceeding.190

As the Supreme Court has provided, noncitizens may only be removed after a full and fair proceeding that comports with the Due Process Clause. As such, this means that “throughout all phases of deportation proceedings, petitioners must be afforded due process of law.”191 Thus, even at the relief stage of the proceeding, regardless of the type of relief sought, noncitizens are entitled to a fundamentally fair hearing on their applications. By exercising jurisdiction, the circuit courts will thus be able to remove this distinction and correctly extend due process protections to the entirety of a removal proceeding.

185 Yamataya, 189 U.S. at 101.

186 Chapman, supra note 12, at 1555.

187 See Sanchez Velasco v. Holder, 593 F.3d 733, 737 (8th Cir. 2010).

188 Koehl, supra note 27, at 111 (citing Immigration Court Practice Manual, U.S. DEP’T OF JUST. at 65, https://www.justice.gov/sites/default/files/eoir/legacy/2012/11/08/Chap%204.pdf) (last revised Apr. 1, 2008)).

189 Lauritzen, supra note 31, at 113 n.13, 117 (2020).

190 Id. at 117.

191 Serrano Alberto v. Att’y Gen. U.S., 859 F.3d 208, 213 (3d Cir. 2017).

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Supporting Congress’s Intent to Provide Avenues for Relief

Furthermore, “providing noncitizens with avenues for relief but denying that they have a right to a fair hearing in adjudicating an application for relief” conflicts with Congress’s intent.192 Congress has extended several forms of relief available to non citizens, providing the circumstances and qualifications that a non citizen must demonstrate to be eligible for that particular form of relief..193

In so doing, Congress has intentionally provided opportunities for noncitizens to seek forms of mandatory relief as well as discretionary relief, including forms that would allow the noncitizen to remain in the country.194

By providing these avenues for noncitizens to seek relief from removal, Congress has demonstrated that “there should be some flexibility built into otherwise strict immigration laws.”195 The purpose of these provisions, then, is “to soften the rigor of the law in deserving cases.”196 Nevertheless, by “holding that the procedures employed in adjudicating applications for [discretionary] relief [need not] comport with due process, the circuits are frustrating Congress’s intent in providing these forms of relief” to noncitizens.197 As discussed earlier, if applicants are unable to receive a full and fair hearing while presenting their application for discretionary relief, they lose a fair opportunity to seek the relief that Congress has intentionally made available.

Remaining Focused on the Due Process Violation and Avoiding Dubious Results

By focusing the analysis on “the discretionary nature of the relief” that the noncitizen is seeking, many of the federal circuit courts also “overlook what the actual due process violation alleged is.”198 It is undisputed that a denial of discretionary relief is not a violation of due process because this form of relief is given at the discretion of the Attorney General.199 As such, there cannot be an

192 Chapman, supra note 12, at 1558.

193 Id. at 1558 59.

194. See Koehl, supra note 27, at 112 14.

195. Chapman, supra note 12, at 1545.

196 Chapman, supra note 12, at 1545 n.69.

197 Chapman, supra note 12, at 1559.

198 Id., at 1558.

199 See Assad, 378 F.3d at 475.

entitlement to that relief.200 However, these courts have failed to recognize that the procedures, including the effect of ineffective assistance of counsel, is what renders the removal proceeding fundamentally unfair..201 That should be the focus of the analysis. These petitioners are not bringing their claims forth because of an expectation that they will receive the discretionary relief for which they have applied. Rather, these claims are brought forth because the noncitizen was not provided the full and fair hearing that they are entitled to receive before being ordered removed.

Additionally, by holding that an alien seeking only discretionary relief does not have a valid due process claim that gives the court jurisdiction, circuit courts may also be permitting “absurd results.”202 This holding means that a noncitizen affected by ineffective assistance of counsel or a procedural due process issue would have no recourse, even if their due process claims are otherwise meritorious. As such, the procedures that Congress has provided would not have to be “administered fairly and impartially” before resulting in a removal order.203 As the Third Circuit noted, the immigration judge could conduct hearings and deny relief “based on the flip of a coin” and the petitioner would be unable to seek a new hearing, effectively denying them the opportunity to fairly present their evidence and application for relief.204

Countervailing Reasons for the Concern of Burdening Court Systems

Although concerns may arise regarding the possibility of burdening the court systems if the circuit courts hold that they do have jurisdiction, these concerns must be considered in light of the standards that still must be met for these claims as well as the countervailing legal and public policy reasons for why courts should still hold that they have jurisdiction. First, no federal court in the current circuit split has expressed concern that, by exercising jurisdiction, these cases will burden their court system.205 Secondly,

200 Nativi Gomez, 344 F.3d at 807 09.

201 Chapman, supra note 12, at 1558; See Calderon Rosas , 957 F.3d at 386.

202 Calderon Rosas, 957 F.3d at 386.

203. Id.

204 Id.

205 See e.g., Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006); Delgado v. Holder, 674 F.3d 759 (7th Cir. 2012); Assaad v. Ashcroft, 378 F.3d 471 (5th Cir. 2004); Omar v. Mukasey, 517 F.3d 647 (2d Cir. 2008); Salgado Toribio v. Holder, 713 F.3d 1267 (10th Cir. 2013); Pinos Gonzalez v. Mukasey, 519 F.3d 436 (8th

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even if courts do hold that they have jurisdiction, this holding does not change the standards by which procedural due process claims and ineffective assistance of counsel claims are analyzed on the merits.206 For both ineffective assistance of counsel and procedural due process claims, prejudice must be demonstrated.207 This requires that aliens demonstrate that there is a “reasonable probability” that the outcome of the hearing was affected.208 This difficult standard still limits a noncitizen’s ability to bring a claim, indicating that courts will likely not become burdened with these claims if they hold that they have jurisdiction.

Even still, Congress has deliberately allowed federal circuit courts to hear constitutional claims or questions of law arising out of removal proceedings, including due process claims.209 As evidenced by this authority, courts are “called upon to protect” individual and due process rights, including those of immigrants who are present in the United States unlawfully.210 Furthermore, because the Board of Immigration Appeals does not have jurisdiction to hear constitutional issues, due process claims must be left to the federal circuit courts.211 Ultimately, while this concern of burdening the courts is valid, it is unavailing when balanced by the difficult standard of prejudice that must be met, limiting a noncitizen’s ability to bring a claim as well as the duty of the court to hear these constitutional claims.

PUBLIC POLICY CONCERNS ALSO DEMONSTRATE THAT COURTS SHOULD EXERCISE JURISDICTION

From a public policy perspective, holding that federal circuit courts have jurisdiction to hear these types of claims is preferable because it provides noncitizens with the protections that the Constitution provides. Additionally, this holding aligns with the

Cir. 2008); Mejia Rodriguez v. Reno, 178 F.3d 1139 (11th Cir. 1999) (indicating that the circuit courts have not expressed any concern that exercising jurisdiction will burden the court system in their analyses).

206 Fadiga v. Att’y Gen. U.S., 488 F.3d 142, 158 59 (3d Cir. 2007); Matter of Lozada, 19 I&N Dec. 637, 638 (BIA 1988).

207 Fadiga, 488 F.3d at 158 59; Matter of Lozada, 19 I&N Dec. at 638.

208 Fadiga, 488 F.3d at 158 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

209. 8 U.S.C. § 1252(a)(2)(D); Menke, supra note 46, at 605.

210 See Chehazeh v. Att’y Gen. U.S., 666 F.3d 118, 130 (3d Cir. 2012).

211 Dree K. Collopy et al., Challenges and Strategies Beyond Relief, AM IMMIGR LAW ASS’N 518, 529 30 (2014), https://www.aila.org/File/Related/11120750b.pdf.

country’s immigration law related goals and core values of justice and fairness.

Providing Noncitizens with the Minimal Protections Guaranteed by the Constitution

In holding that federal circuit courts do have jurisdiction, noncitizens, a portion of the population with next to no power or protection, will receive the minimal guarantees of the Constitution that they are entitled to receive. As noted above, all noncitizens, whether present in this country lawfully or unlawfully, are protected by the Due Process Clause of the Fifth Amendment. However, if circuit courts continue to hold that they do not have jurisdiction, these immigrants will be forced to bear the brunt of issues within the legal system that they have no power over and from which the law should protect them. This concern is only heightened when considering additional factors.

For one, despite a noncitizen’s need for effective counsel to aid them “in navigating through” “[t]he complexity of the immigration system,”212 a system described as “a maze of hyper technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike,”213 noncitizens are “disproportionally saddled with low quality counsel.”214 For instance, attorneys “(1) may not have the appropriate legal expertise, (2) may be overloaded with too many cases, (3) may not give due attention and care to individuals, or (4) may even be fraudulent.”215 Other barriers include language differences and long distances between detention facilities where a noncitizen is detained and available legal counsel.216 Additionally, even if the attorney representing an immigrant is later disbarred for “pattern[s] of neglect,” this does not provide any relief for an immigrant seeking relief from removal.217

212 LaJuana Davis, Reconsidering Remedies for Ensuring Competent Representation in Removal Proceedings, 58 DRAKE L. REV 123, 140 (2009).

213 Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003).

214 Calderon Rosas v. Att’y Gen. U.S., 957 F.3d 378, 381 (3d Cir. 2020).

215. Andrew I. Schoenholtz & Hamutal Bernstein, Improving Immigration Adjudications Through Competent Counsel, 21 GEO. J. LEGAL ETHICS 55, 58 59 (2008).

216 Davis, supra note 214, at 146 150.

217 See Calderon Rosas, 957 F.3d at 381 82 (explaining that the petitioner’s attorney was later disbarred for “‘multiple violations of the Rules of Professional

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Oftentimes, the only way that a noncitizen can seek relief from such a situation, especially if the Board of Immigration Appeals does not provide a new hearing, is to bring a claim of ineffective assistance of counsel to a federal circuit court of appeals.

Furthermore, there are a wide array of additional procedural due process issues that can affect an immigrant’s removal proceeding. Courts have found due process violations in immigration proceedings based on: “[f]ailure to advise of eligibility for relief;218 [d]enial of continuance;219 [r]efusal to change venue;220 [f]ailure to permit testimony;221 [r]eliance on unreliable hearsay;222 [f]ailure to consider evidence or give a reasoned explanation;223 [i]mmigration judge bias;224 [d]efective notice;225 and [r]eliance on extra record facts.”226 This list is not exhaustive, but it demonstrates the abundance of ways that a noncitizen may be prejudiced during his or her removal hearing. If the circuit court is unable to hear a noncitizen’s claims regarding any of these potential procedural due process issues because it does not exercise jurisdiction over them, the noncitizen could potentially be ordered to be deported without having had a full and fair hearing.

The significance of these concerns is only magnified by recognizing that the consequences of being impacted by ineffective assistance of counsel or a procedural due process issue are drastic. While removal is not considered a punishment, the Supreme Court has recognized the “high and momentous” stakes that accompany a removal order as well as the “drastic deprivations.”227 This is especially true when the individual being removed has established a

Conduct in seven separate client matters’ amounting to ‘a troubling pattern of neglect’”).

218 Collopy et al., supra note 213, at 530(citing United States v. Melendez Castro, 671 F.3d 950, 954 (9th Cir. 2012)).

219. Id. (citing Gjeci v. Gonzales, 451 F.3d 416 (7th Cir. 2006)).

220 Id. (citing Campos v. Nail, 43 F.3d 1285 (9th Cir. 1994)).

221 Id. (citing Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2003)).

222 Id. (citing Pouhova v. Holder, 726 F.3d 1007, 1012 (7th Cir. 2013)).

223 Id. at 531 (citing Bosede v. Mukasey, 512 F.3d 946, 950 51 (7th Cir. 2008)).

224. Id. (citing Abulashvili v. U.S. Att’y Gen., 663 F.3d 197, 207 08 (3d Cir. 2011)).

225 Id. (citing Burger v. Gonzales, 498 F.3d 131, 133 (2d Cir. 2007)).

226 Id. (citing Getachew v. I.N.S., 25 F.3d 841, 845 (9th Cir. 1994)).

227 Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947); Woodby v. I.N.S., 385 U.S. 276, 285 (1966).

life with family, friends, work, and more and is required to “forsake all the bonds formed here and go to a foreign land.”228 Furthermore, these proceedings can lead to the deportation of an individual who has lived in the country for years, decades, or maybe even the majority of his or her life. They must suddenly begin a new life in a location where they have “no contemporary identification,” often with little hope of returning soon.229 Depending on the facts and circumstances involved in a noncitizen’s removal, the government may bar the individual from reentering the United States for a period ranging from five to twenty years or, occasionally, even permanently.230

Moreover, the use of removal as a form of immigration regulation has increased significantly in recent decades.231 From 1950 to 1969, a total of slightly less than 250,000 individuals were deported.232 This number nearly doubled in the years between 1970 and 1989.233 Since 1997, the United States has removed hundreds of thousands of noncitizens from the country per year.234 According to the Department of Homeland Security’s Yearbook of Immigration Statistics, the number of removals per year within the last decade has ranged from a low of 295,364 to a high of 432,448 individuals, indicating a sharp increase in orders of removal.235

Today, there are also concerns that the immigration system has become weaponized, effectively turning immigration courts and immigration judges into “the [A]ttorney [G]eneral’s proxies for enforcing deportations.”236 The Immigration and Nationality Act requires the Attorney General “to craft a functioning immigration court system: a system that provides genuine case by case adjudications by impartial judges who apply existing law to the

228 Woodby, 385 U.S. at 285.

229. Id.

230. 8 U.S.C. § 1182(a)(9).

231. Moore, supra note 52, at 851 52.

232 Stumpf, supra note 47, at 1719 20.

233 Id.

234 Table 39. Aliens Removed or Returned: Fiscal Years 1892 to 2017, DEP’T OF HOMELAND SEC , https://www.dhs.gov/immigration statistics/yearbook/2017/table39 (last modified Apr. 9, 2019).

235 Id.

236 The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, INNOVATION L. LAB & S. POVERTY L. CTR at 3 (June 2019), https://www.splcenter.org/sites/default/files/com_policyreport_the_attorney_genera ls_judges_final.pdf.

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evidence on the record following a full and fair hearing.”237 Nevertheless, driven by the attorneys general’s leadership and actions over the last several years, including the “[reassignment] [of] case dockets to align with enforcement priorities” and “enforcement driven case quotas,” immigration judges have been pitted against due process and the conduction of a hearing that is impartial and fair.238

Ultimately, if federal circuit courts do have jurisdiction, they can ensure that a noncitizen who presents a meritorious claim has a fair opportunity to bring his or her case forward because they have the power to vacate the Board’s decision and remand for a new hearing.239 This does not ensure that all noncitizens seeking discretionary relief will prevail or that all claims that are brought will be meritorious. It does, however, ensure that an immigrant has a full and fair hearing, including a fair opportunity to seek discretionary relief before the noncitizen is removed from the country, which is especially important in light of the abundant hardships that noncitizens may face.

Upholding Underlying Immigration Law Goals

Furthermore, by exercising jurisdiction over these claims and providing redress when necessary, the federal circuit courts will be able to continue supporting the United States’ underlying goals in immigration law. Using its plenary power,240 the federal government has an interest in maintaining the national welfare, safety, and security of the country.241 As such, when determining whether to remove a noncitizen, “[t]he INA relies heavily on the inadmissibility and deportability grounds,” which “identify undesirable characteristics or conduct of noncitizens” that may threaten this goal.242 237 Id. 238 Id

239 See Calderon Rosas v. Att’y Gen. U.S., 957 F.3d 378, 390 (3d Cir. 2020).

240 Moore, supra note 52, at 848 849; Bridges v. Wixon, 326 U.S. 135, 167 (1945).

241. Sara McElmurry, et al., Balancing Priorities: Immigration, National Security, and Public Safety, CHI. COUNS. ON GLOB. AFF. AND BIPARTISAN POL’Y CTR at 1 (Oct. 2016), https://www.thechicagocouncil.org/research/report/balancing priorities immigration national security and public safety.

242 Stumpf, supra note 47, at 1729.

Nevertheless, as evidenced by the various forms of relief that the federal government has made available to noncitizens undergoing removal proceedings, the United States also has an interest in permitting certain immigrants to remain in the country.243 In fact, [i]mmigration policy in the United States reflects multiple goals. First, it serves to reunite families by admitting immigrants who already have family members living in the United States. Second, it seeks to admit workers with specific skills and to fill positions in occupations deemed to be experiencing labor shortages. Third, it attempts to provide a refuge for people who face the risk of political, racial, or religious persecution in their country of origin. Finally, it seeks to ensure diversity by providing admission to people from countries with historically low rates of immigration to the United States.244

Many forms of relief, including discretionary relief, reflect a purposeful implementation of these immigration law related goals. One such example is cancellation of removal. 8 U.S.C. § 1229b(b)(1) provides that “the Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States” if the noncitizen establishes, among other requirements, that the noncitizen “has been a person of good moral character” and “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”245 This discretionary form of relief demonstrates the nation’s objectives of reuniting families while also prioritizing national security.

Thus, by exercising jurisdiction over these claims, the federal circuit courts will be able to ensure that noncitizens are able to fairly present their case for relief. This exercise of jurisdiction, in turn, will allow the federal government through its administrative agencies to grant relief effectively to the noncitizens who will contribute to the nation’s immigration law policies and goals, which will enable these noncitizens to remain in the country under lawful status.

243. Stumpf, supra note 47, at 1730.

244 Immigration Policy in the United States, THE CONG OF THE U.S. & CONG BUDGET OFF at 9 (Feb. 2006), https://www.cbo.gov/sites/default/files/109th congress 2005 2006/reports/02 28 immigration.pdf.

245 8 U.S.C. § 1229b(b)(1).

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Aligning with the Country’s Core Values of Justice and Fairness

Holding that federal circuit courts do have jurisdiction to hear these claims also aligns with the United States’ core values of justice and fairness values that are significant to the identity of the country. When our Founding Fathers wrote the Constitution, they used the phrase “all persons” in the Due Process Clause of the Fifth Amendment.246 Thus, it is evident that they believed and intended that these protections should extend to all who are present in the country.247

Reflecting on this in Shaughnessy v. United States ex rel. Mezei, the Supreme Court provided that once a noncitizen has “passed through our gates, even illegally,” he or she “may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”248 In so holding, the Court expressed the significance that the United States has placed in the just and fair treatment of all who are present on this land, even those who have no right to remain in the country.249

With the Constitution serving as a guiding beacon, “a vision of law as a realm of value, based on fairness . . . [and] justice” arises, shaping the American legal order.250 In placing confidence in the judicial system, this country’s society expects that every individual who finds themselves in an American courtroom will receive fair, even handed treatment by whoever exercises judicial authority of any kind. It is a hallmark of the American system of justice that anyone who appears as a litigant in an American courtroom is treated with dignity and respect. That expectation must be met regardless of the citizenship of the parties or the nature of the litigation. In a country built on the dreams and accomplishments of an immigrant population, a particularly severe wound is inflicted on that principle when an immigration matter is not conducted in accord with the best of our tradition of courtesy and fairness.251

In keeping true to the country’s core values, then, and the continual identity of the country as one rooted in justice and fairness, the federal circuit courts should hold that they have jurisdiction to

246 Zadvydas v. Davis, 533 U.S. 678, 693 (2001).

247. See id.

248. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).

249 See id.

250 Philip Selznick, American Society and the Rule of Law, 33 SYRACUSE J. INT’L L. &COM 29, 36 (2005).

251 Iliev v. I.N.S., 127 F.3d 638, 643 (7th Cir. 1997).

hear these claims. In doing so, these courts will have the power to ensure the continual fair treatment of those in this country and in its court systems, including noncitizens.

CONCLUSION

In light of the increased use of removal as an immigration regulation tool and other issues affecting the immigration system, it is vital that noncitizens have the ability to bring ineffective assistance of counsel and procedural due process claims to a federal circuit court of appeals before being removed from the United States. This opportunity can provide them with a new removal hearing, enabling them to present their claims and applications for relief fairly. While federal circuit courts are split on whether they have jurisdiction to hear these claims if the noncitizen is seeking only discretionary forms of relief, the courts should ultimately hold that they can exercise jurisdiction. Both Supreme Court precedent252 and decisions from the Board of Immigration Appeals253 recognize that noncitizens are entitled to a fundamentally fair removal hearing, and this creates a protected interest that can support a due process claim, giving the court jurisdiction.

Additionally, the circuit courts should hold that they have jurisdiction because doing so does not contradict the reasoning of the courts that do not exercise jurisdiction. Further, such a holding would avoid the inconsistent results and potential issues that can arise if the court does not exercise jurisdiction over these claims, such as the disruption of Congress’s intent to make these forms of relief available and the conflation of a right to discretionary relief and a right to a fair opportunity to seek relief.254 Finally, this holding aligns with public policy concerns, such as the protection of noncitizens’ constitutional rights, the nation’s immigration objectives, and the United States’ continued identity based on the core values of justice and fairness.

The purpose of this Article is not to argue that all noncitizens are entitled to discretionary relief or even that all claims brought to a

252 See Sung v. McGrath, 339 U.S. 33, 50 (1950); Low v. Backus, 225 U.S. 460, 467 68 (1912); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Landon v. Plasencia, 459 U.S. 21, 32 33, 36 (1982).

253 See Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980); Matter of Ramirez Sanchez, 17 I&N Dec. 503, 505 (BIA 1980); Matter of Lam, 14 I&N Dec. 168, 170 (BIA 1972); In re Rodriguez Carrillo, 22 I&N Dec. 1031, 1033 (BIA 1989).

254 Chapman, supra note 13, at 1558 59.

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circuit court will be meritorious and require redress. However, because noncitizens have a protected interest in fundamentally fair removal hearings before being removed, they do merit the opportunity to voice their due process claims to the court and, if the claims are meritorious, receive redress in the form of a new hearing. Ultimately, by holding that they have jurisdiction to hear these claims, the federal circuit courts of appeals will be able to ensure that noncitizens can fairly present their case, regardless of the type of relief the noncitizen is seeking.

MICHIGAN ADMINISTRATIVE LAW: ABRIDGED SECOND EDITION A MICHIGAN ADMINISTRATIVE LAW

PRIMER

DON LEDUC

PREFACE........................................................................................122

CHAPTER 1: FUNDAMENTAL CONCEPTS OF ADMINISTRATIVE LAW 123

Introduction...........................................................................123 Powers and Limitations 123 Principles of Administrative Law 126 Ten Steps to Successfully Analyze an Administrative Law Case.......................................................................................130 Sources..................................................................................131

CHAPTER II: DELEGATION OF POWER 133

Introduction...........................................................................133 Constitutional Basis of the Delegation Doctrine 133 Application of the Adequate Standards Test.........................136 Other Delegation Principles 136 Ten Steps to Successful Delegation Analysis 137 Sources..................................................................................138

CHAPTER III: AGENCY ACCESS TO INFORMATION 139 Introduction...........................................................................139 Requirement to Keep Records and Provide Information 140 Inspections.............................................................................142 Subpoenas..............................................................................145 Fifteen Steps to Successful Analysis of Agency Access to Information Cases ............................................................148 Sources 149

CHAPTER IV: RULES AND RULEMAKING...........................................152

Introduction 152 Authority 152 Nature, Definition, Types and Effects of Rules 153 Policy Development and the Use of Rules 156 Validity of Rules ....................................................................159 Ten Steps to Successfully Analyzing Agency Rules and Rulemaking.......................................................................162 Sources 162

CHAPTER V: INFORMAL ADJUDICATION AND DUE PROCESS.............165 Introduction 165

120

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Orders and Adjudication 165 General Concepts..................................................................167 Fundamentals of Due Process 168 Due Process Interests and the Right to Hearing...................168 Scope of Due Process Hearings 170 Timing of Due Process Hearings 172 Ten Steps to Successful Michigan Due Process Analysis .....173 Sources 174

CHAPTER VI: FORMAL ADJUDICATION AND CONTESTED CASES ......178 Introduction 178 Applicability of the Michigan Administrative Procedures Act..........................................................................................178

Parties and Intervention 181 Prehearing Procedures and Powers of Hearing Officers 181 Hearing Procedures 184 Decision Procedures .............................................................185 Twenty Steps in Successful Contested Case Analysis 186 Sources 188

CHAPTER VII: LICENSING 191 Introduction 191 Nature, Authority, and Constitutionality...............................191 Definitions 192 Licensing Procedures............................................................192 Fifteen Steps to Successful Licensing Analysis 194 Sources..................................................................................196

CHAPTER VIII: METHODS AND COURT OF JUDICIAL REVIEW OF AGENCY ACTION 200 Introduction...........................................................................200

Sources of Judicial Review Methods 201

Constitutional Right to Judicial Review................................201 Statutory Methods of Judicial Review 202 Non Statutory Judicial Review..............................................203 Ten Steps to Successful Identification of Court and Method 205 Sources 206

CHAPTER IX: SCOPE OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION 211

Introduction...........................................................................211

Constitutional Scope of Review 211 Administrative Procedures Act Scope of Review 214 Scope Of Review Under Other Methods 218 Special Review Considerations 219

Judicial Review of Local Action 219 Ten Steps to Successful Identification of Proper Scope of Judicial Review 221 Sources..................................................................................222

CHAPTER X: AVAILABILITY OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION 224 Introduction...........................................................................224 Standing 224 Ripeness and Finality............................................................228 Exhaustion of Administrative Remedies 229 Primary Jurisdiction .............................................................233 Steps to Successful Availability of Judicial Review ..............235 Sources 238

CHAPTER XI: ACCESS TO AGENCY INFORMATION ............................244 Introduction 244 The Freedom of Information Act...........................................244 Sources for FOIA Discussion 248 The Open Meetings Act 251 Sources for OMA Discussion 255

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PREFACE

This document is intended for the use of two groups: to serve students as a summary overview of the Michigan Administrative Law course and to serve practitioners new to the field as an orientation or introduction to the principles of administrative law. The material is drawn from the text published by Thomson Reuters entitled LeDuc, Michigan Administrative Law

The abridged version is not intended to provide in depth analysis of the topics or the cases, but as a primer that summarizes the principles and describes the major aspects of administrative law under each main topic. Subtleties largely remain unexplored, as do the conflicts and uncertainties which characterize this area of the law. Statements in the primer are not footnoted in order to promote readability. At the end of each chapter, the basic source material is listed. For fuller exploration of the subject matter, additional cases, and discussion of Michigan Administrative Procedures Act references, readers should refer to Michigan Administrative Law. That text, not this one, should be cited when discussing the principles of administrative law in legal documents and materials.

CHAPTER 1: FUNDAMENTAL CONCEPTS OF ADMINISTRATIVE LAW

Introduction

Although this chapter’s topic has been one of the most judicially active over the past three decades, few cases have discussed the general fundamentals of administrative law comprehensively, so the fundamentals must be deduced from reading numerous cases and considering their interrelationship. While case law provides examples of specific basic concepts, even the most frequently cited cases regarding administrative matters offer little instruction on the overall fundamentals or how they interrelate.

Powers and Limitations

Agency Authority

Agencies have no inherent power and must obtain their power from the Legislature through statutes commonly referred to as underlying or enabling statutes although a limited number of agencies have some power conferred by the Michigan Constitution. How explicit the statutory transmittal of authority must be remains somewhat uncertain under Michigan case law. Coffman v. State Board of Examiners in Optometry is frequently cited to support the proposition that agency power can be implied. But Coffman actually involved a statute that granted rulemaking power expressly, and the issue was whether the rulemaking authority extended to a specific aspect of the agency’s action which expanded that authority.

The language from Coffman and the case on which it relied, Ranke v. Corporations & Securities Commission, remain the leading authority for finding implied power. The Michigan Supreme Court adopted in Coffman a passage from American Jurisprudence which called for liberal construction of statutes in order to carry out legislative intent and purpose. This passage seems to reflect the current judicial attitude that power can be implied and need not be explicit, as demonstrated in Chesapeake and Ohio Ry. Co. v. Public Service Commission. But like Coffman, the issue in Chesapeake and Ohio was not whether rulemaking power had been conveyed to the agency, but whether that conveyance empowered the agency to act in a particular manner.

Once a determination is made that an agency has general authority, seven different sources limit the exercise of that authority by agencies: (1) the state and federal constitutions, (2) underlying

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statutes that create agencies and authorize agency actions, (3) the Administrative Procedures Act, (4) agency rules, (5) executive orders of the Governor, (6) the Freedom of Information and Open Meetings acts, and (7) judicial review.

Constitutions

The state and federal constitutions limit agency authority and its exercise in several ways. The Michigan Constitution includes the general principle of separation of powers, which limits the ability of the Legislature to transmit or delegate its own power to an executive or judicial branch official or agency and prohibits each branch from exercising the powers of the others. The principle of separation is not inherent and may be altered by the Constitution itself, as demonstrated by the provision that grants legislative power to the Governor in certain matters of governmental reorganization. The Governor’s constitutional power to reorganize the executive branch was upheld by the Michigan Supreme Court in House Speaker v. Governor.

Both constitutions limit an agency’s investigative and information gathering authority. For example, both constrain agency inspections and searches and limit an agency’s ability to require information, reports, and records. Constitutional due process limits an agency’s power to deprive persons of certain interests without observing appropriate procedural restraints.

Underlying Statutes

Various powers are given to administrative agencies by underlying statutes (also called enabling statutes) that serve as the connection between the Legislature and the agencies. Those powers may relate to the subject matter or substantive authority given to an agency, such as to protect the public from fraud or unprofessional conduct. They may also relate to the manner in which an agency can conduct itself regarding its substantive authority in other words, to an agency’s procedural power in implementing its substantive power, such as licensing procedure.

The first fundamental principle of administrative law analysis is to examine the underlying statute that authorized the agency action in question. What makes administrative agencies unique is that they have powers that seem to go beyond the perceived executive branch role (investigation, prosecution, and regulation) and appear to be

legislative (rulemaking) or judicial (adjudicatory) in nature; these are called “quasi legislative” and “quasi judicial” to emphasize that they are not truly legislative or judicial and unconstitutional.

Michigan Administrative Procedures Act

The procedures that govern many proceedings of state agencies, namely rulemaking, adjudication, and licensing, are contained in a special statute the Michigan Administrative Procedures Act, or the APA. While that act governs state agency procedure, it provides little substantive power and does not apply to local government procedure.

Administrative Rules

An agency that is given the power to make rules is required to follow those rules once it makes them. In many respects, rules have the same force and effect as statutes. Provisions included in rules may provide checks on an agency’s action, because they bind their makers.

Executive Orders

Executive orders do not have the effect of statutes or agency rules, but generally comprise instructions to administrative agencies and create no private rights or obligations. The most significant executive orders are those implementing the Governor’s constitutional authority to reorganize the executive branch.

Open Government

A relatively recent aspect of the administrative process is the emphasis on open government. Concerns over governmental secrecy culminated in the passage of two statutes mandating public access to government activity. The Freedom of Information Act (FOIA) requires that most records possessed by both state and local agencies be made available to the public. The Open Meetings Act (OMA) requires that all sessions of most collegial public bodies be open to the public and that the deliberations and decisions of those bodies occur at meetings open to the public.

Courts

The story of administrative law is in large part the story of judicial review of agency action. Judicial policy shapes

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administrative agency actions and facilitates the ability of those affected by agency action to seek the assistance of the courts in challenging that action.

Principles of Administrative Law Agency Policy

Michigan administrative law is largely about public policy as enunciated in the Michigan Constitution and by legislative bodies in statutes implemented by executive branch agencies. The substantive content of particular public policy is embodied in statutes sometimes in the portion of an underlying statute empowering an agency that comes under consideration in a particular administrative matter. Administrative law as a field generally does not consider the wisdom or content of public policy directly, but rather examines the procedures by which that policy is refined, elaborated, and implemented by agencies. Often the procedural focus is on how an agency is constrained by the controls discussed in Part B, above.

Definitions

The product of an agency’s efforts to execute the mandate given to it by the Legislature through its underlying statute can take several forms. In general, a product or outcome is called agency “action,” while the process for its development is called an agency “proceeding.” The action may be a “rule,” an “order,” or a “license;” the proceeding may in turn be called “rulemaking,” “adjudication,” or “licensing.”

The Michigan Administrative Procedures Act includes definitions of several of the significant actions and proceedings, but it is an imperfect vehicle for adequate definition of the operative structure of administrative law. The important Michigan APA definitions follow

“Agency” means a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action. Agency does not include an agency in the legislative or judicial branch of state government, the governor, an agency having direct governing control over an institution of higher education, the state civil service commission, or an association of insurers created under the insurance code.

“Contested case” means a proceeding, including ratemaking, price fixing, and licensing, in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.

“Guideline” means an agency statement or declaration of policy that the agency intends to follow, that does not have the force and effect of law, and that binds the agency, but does not bind any other person.

“License” includes the whole or a part of an agency permit, certificate, approval, registration, charter, or similar form of permission required by law. [License does not include a license required solely for revenue purposes, or a license or registration under [the Motor Vehicle Code].

“Licensing” includes agency activity involving the grant, denial, renewal, suspension, revocation, annulment, withdrawal, recall, cancellation, or amendment of a license.

“Party” means a person or agency named, admitted, or properly seeking and entitled of right to be admitted, as a party in a contested case.

“Person” means an individual, partnership, association, corporation, limited liability company, limited liability partnership, governmental subdivision, or public or private organization of any kind other than the agency engaged in the particular processing of a rule, declaratory ruling, or contested case.

“Rule” means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or recission thereof, but does not include any [of the listed exceptions]. [This definition is modified by the author to cover the Legislature’s mistaken reference to amendment, suspension, or rescission of “the law,” which should have been a reference to the rule, as it originally was articulated in the APA.]

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Other important definitions necessary to understanding the structure and principles of administrative law are not included in the Michigan APA. But the federal APA includes several useful definitions which follow.

“Adjudication” means [the] agency process for the formulation of an order.

“Agency action” includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or the denial thereof, or failure to act.

“Agency proceeding” means an agency process defined [as rulemaking, adjudication, and licensing].

“Order” means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rulemaking but including licensing.

“Rulemaking” means the agency process for formulating, amending, or repealing a rule.

Two additional definitions derived from federal administrative practice but not included among the federal or Michigan APA definitions are helpful. These complete the definitional framework regarding agency administrative law.

“Formal adjudication” means an adjudication in which an agency is required by an underlying statute to use the APA adjudication procedures to produce an order. [In Michigan, formal adjudication is called a contested case; the invoking language in the federal APA is “required by statute,” while the invoking language in the Michigan APA is “required by law,” a difference that makes a difference, as will be seen in Chapters 5 and 6.]

“Informal adjudication” means any process for the formulation of an order which is not based on a record following a hearing.

This definitional framework is important in tying underlying statutes to the Michigan APA provisions. Michigan statutes may at times refer specifically to the Michigan APA, either to invoke it or to

prohibit its application. But the definitions in the Michigan APA can make the APA applicable to an agency action, even if an underlying statute is silent in that regard.

Nature of Administrative Agencies

Structure Administrative agencies exist in all levels of government and have numerous forms and structures. One helpful key is understanding the nature of agency administration or leadership. In general, a reference to an “agency” in a statute and in the APA is actually a reference to the “head” of the agency; the “head” is the entity or individual created by an underlying statute, another relevant statute, or the Constitution that is empowered to act as the “agency.” The agency head may be either a collegial group, such as a board or commission, or an individual, such as a director or a secretary. Except in a few situations, it does not matter whether the agency head is one or the other of these entities. But it is important to differentiate between an agency’s head and its body, comprising all of its employees.

Executive Action Some actions taken by executive branch agencies can be analogized to actions taken by the other branches of government. But while the outcomes and procedures of the agency may resemble or be modeled after those of the other branches, they remain executive actions intended to implement a statute. They are not truly legislative or judicial; in effect, rulemaking is “quasi legislative,” and adjudication is “quasi judicial.” If they were truly legislative or judicial, the exercise of those powers by the executive branch would then violate the doctrine of separation of powers incorporated in the Michigan Constitution. Decision making resembling that in the other two branches of government can be that of either an individual agency head or of a board or commission that heads an agency. But it remains an executive branch function regardless of who performs it, and it effectuates executive power, not legislative or judicial power.

Combination of Functions As the definitional structure recognizes, agencies are sometimes parties in contested cases that the agency itself decides. An agency can be both an advocate and a judge in an adjudication, and its employees may also be witnesses. This unique arrangement of power when properly structured and implemented through an internal separation of functions satisfies due process and

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is recognized in Michigan APA provisions protecting against potential abuses inherent in this combination of functions. That combination is not always present, because agencies sometimes serve as “neutral” administrative tribunals, acting only in a quasi judicial capacity and not participating as a party. What is common to both settings is that the agency tribunal is still acting as an executive branch body and not as a true judicial tribunal. What is important to comprehend is that administrative tribunals are established to resolve disputes without involving the courts, at least initially. The decisions reached by administrative tribunals are executive actions, not judicial decisions, whatever the procedures used to resolve a matter may be. The role of the judiciary is to review those decisions, not make them. This system allows administrative tribunals to use specialized expertise and experience in making decisions regarding the subject matter, something not generally found in courts.

Administrative Law Cases

Understanding of the judicial cases that review administrative action requires: first, consideration of the nature of the action taken by the agency; second, the potential application of the state and federal Constitutions to the actions of both the Legislature and the agency; third, parsing the underlying statute involved; fourth, the application, if any, of the Michigan APA; fifth, the propriety of the procedures followed by the agency; and, sixth, appreciating the proper role of the courts in reviewing agency action. The role of the courts includes (1) in what court review should take place, (2) by what method the court obtains jurisdiction, and (3) what scope of review should the court apply to the challenged agency action, which limits how fully the court can substitute its judgment for that of the agency.

Ten Steps to Successfully Analyze an Administrative Law Case

1. Read the underlying statute thoroughly to discover its standards and potential constitutional defects.

2. Review the statute in detail to determine the extent of the agency’s powers, the constraints imposed on the agency, the rights owed to the affected party, the procedures required of the agency, and the nature of the outcome permitted.

3. Note those aspects of the statute that are relevant to the situation and the potential conflicts between the statute and the agency’s position.

4. Determine whether there are relevant agency rules and, if so, study them in detail, just as was done with the statute.

5. Evaluate the validity of those rules and the agency’s compliance with its own rules.

6. Establish whether the Michigan APA applies to any or all of the aspects of the agency’s action, including language in the underlying statute which may trigger the application of the APA by virtue of the APA definitions.

7. Identify the specific agency action involved and compare it to the agency’s own characterization of its action.

8. Consider the importance of the particular facts.

9. Articulate the specific areas where the agency action is subject to question on constitutional, statutory, or procedural grounds.

10. Structure the potential attack on the agency’s decision, including at the judicial level.

Sources

Texts and Treatises

42 American Jurisprudence, Process § 26 (1942)

LeDuc, Michigan Administrative Law, Chapter 1 (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Chesapeake & Ohio Railway Co. v. Public Service Commission, 59 Mich. App. 88, 228 N.W.2d 843 (1975)

City of Detroit v. Sledge, 223 Mich. App. 43, 565 N.W.2d 690 (1997)

Coffman v. State Board of Examiners in Optometry, 331 Mich. 582, 50 N.W.2d 322 (1951)

Consumers Power Co. v. Public Service Commission, 460 Mich. 148, 596 N.W.2d 126 (1999)

Fellows v. Michigan Commission for the Blind, 305 Mich. App. 289, 854 N.W.2d 482 (2014)

Ghidotti v. Barber, 459 Mich. 189, 586 N.W.2d 883 (1998)

House Speaker v. Governor, 443 Mich. 560, 506 N.W.2d 190 (1993)

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In re Public Service Commission for Transactions Between Affiliates, 252 Mich. App. 254, 652 N.W.2d 1 (2002)

Ranke v. Corporations & Securities Bureau, 317 Mich. 304, 26 N.W.2d 898 (1947)

Straus v. Governor, 459 Mich. 526, 592 N.W.2d 53 (1999)

Taxpayers of Michigan Against Casinos v. State of Michigan, 478 Mich. 99, 732 N.W.2d 487 (2007)

Toaz v. Department of Treasury, 280 Mich. App. 457, 760 N.W.2d 325 (2008)

UAW v. Green, 498 Mich. 282, 870 N.W.2d 867 (2015) York v. City of Detroit, 438 Mich. 744, 475 N.W.2d 346 (1991)

Constitutions

United States Constitution, Amendments IV, V, and XIV Michigan Constitution 1963, Articles I, III, IV, V, and VIII

Statutes

Administrative Procedures Act, 5 U.S.C.A. §§ 551 576. Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.201 to 24.328 Michigan Freedom of Information Act, M.C.L. §§ 15.231 to 15.246 Michigan Open Meetings Act, M.C.L. §§ 15.261 to 15.575

CHAPTER II: DELEGATION OF POWER

Introduction

Because administrative law is closely tied to statutes, it is important to examine two aspects of every underlying statute.

First, the constitutionality of the statute that forms the basis of an agency’s action should be explored; if that statute is invalid, so is an agency action on which it is premised. Two grounds for attacking a statute are predominant: (1) the statute fails to satisfy substantive due process, meaning the statue bears no rational relationship to a legitimate purpose of government or to the police powers of the state; and (2) there is an improper delegation of legislative power to an administrative agency, meaning that the statute reflects a violation of the principle of separation of powers contained in Article III, Section 2, of the Michigan Constitution. Both grounds question the validity of the legislative action, rather than that of an agency.

Second, assuming the validity of the statute, the issue becomes whether an agency involved has complied with the statute in its implementation, regardless of whether its action is embodied in a rule, an order, or some other exercise of the power granted to the agency in the statute. Often this aspect is an exploration of whether the agency action is ultra vires or in excess of the statutory power granted to the agency. Delegation analysis is important to the implementation analysis because it forces a thorough reading of an underlying statute and helps to define the powers of the agency, so that the exercise of that power can be assessed for compliance with the legislative grant of authority to the agency. Further, delegation analysis can shape the structure of a party’s defenses and strategy in dealing with a matter before an agency and in judicial review, although delegation is too often an argument of last resort rather than the starting place.

Constitutional Basis of the Delegation Doctrine

Although the delegation doctrine or more accurately the nondelegation doctrine is dormant in federal law, it remains an active and viable consideration in every challenge to agency action at the state level, as the Governors of Michigan have learned from time to time. Most recently, the Michigan Supreme Court struck down as an unconstitutional delegation of legislative authority the major emergency powers act being used by the Governor in response to the

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Covid 19 pandemic. See In re Certified Opinion, Midwest Institute of Health, PLLC v. Governor.

Michigan’s delegation law has been confused by the Michigan Supreme Court, but the fundamental concept of delegation as a constitutional separation of powers matter is actually clear: One branch cannot delegate its own power to the others, nor can it undertake to exercise the powers of the other branches except as specifically provided in the Constitution itself, as shown in House Speaker v. Governor.

The starting place for analysis is with the provisions of the Michigan Constitution, which establish three distinct branches of government. Article IV, Section 1, establishes the legislative branch. Article V, Section 1, vests the executive power in the Governor. Article VI, Section 1, places the judicial power in one court of justice. And Article III, Section 2, specifically provides that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Neither aspect of Michigan’s Article III provision is found in the United States Constitution.

Adequate Standards Test

The basic test for proper delegation is set forth in Department of Natural Resources v. Seaman: (1) read the act “as a whole;” (2) determine if the standards are “as reasonably precise as the subject matter requires or permits;” and (3) construe the statute, if possible, “to ‘render it valid, not invalid,’ as conferring ‘administrative, not legislative’ power, and as vesting ‘discretionary, not arbitrary authority.’ “

The Seaman decision integrated two theories which predate the standards test: “proper” delegation and “true” delegation. In proper delegation, the issue is whether the action of the executive is based on a “fixed” or “named” contingency, while in true delegation the issue is whether the statute “marks the field” and the agency action “fills in the details.” In federal delegation parlance, these are known respectively as “contingent” and “subordinate” delegation. Overall, the statute must include adequate standards to measure the limits of legislative delegation of power; if the language is too indefinite, it represents an improper transmittal of true legislative power to an executive branch officer or agency.

Michigan’s Confusion

Unfortunately, one cannot read the Michigan delegation cases without becoming confused. The cause is a number of cases which carelessly intermingle the concepts of substantive and procedural due process with separation of powers principles, mainly because the search for adequate standards, at least in part, is common among these concepts.

Due process analysis, whether substantive or procedural, is not a part of delegation analysis, and no Michigan case with a controlling majority has ever so held. The apparent source of the confusion is Milford v. People’s Community Hospital Authority, which confusingly introduced language about standards. While an examination of statutory standards is important in both due process and delegation analyses, the key to understanding the relationship of the constitutional doctrines to standards is not the use of the standards analysis, but the purpose of the analysis. In substantive due process analysis, the focus on the standards is to reveal a rational relationship to a legitimate purpose of government, whereas, in delegation analysis, the focus is on the standards to determine if the legislative branch has improperly given its powers to an agency in another branch of government, usually the executive.

Procedural due process deals with the way an agency exercises power. In Seaman, Justice Williams found that due process was satisfied by the presence of agency rulemaking and licensing procedures. But he was never successful in persuading a majority of the Court that due process analysis was part of delegation. Justice Williams’ major opposition to this assertion came from Justice Ryan, whose central point was that procedural due process and accountability issues were part of the application of a statute and appropriate for the determination of constitutional validity of an agency’s actions, not for constitutionality of the Legislature’s actions. Due process in the application of a statute cannot and should not save an improper delegation of legislative authority. If the action of the Legislature is a violation of the separation of powers, how can implementation by an executive agency save it? Michigan courts have not yet explored whether a statute can be struck down because it contains inadequate procedural due process protections or whether it can be saved by reading those protections into the questioned statute.

The notion of “totality of safeguards,” also introduced into delegation analysis by Justice Williams, is likewise not properly included in delegation analysis and is actually tied to procedural due

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process. The theory espoused is that an improper statutory delegation can be saved if there is a sufficient set of procedural protections in its application. This approach has the same defect as does the procedural due process analysis.

Political accountability, another theory presented by Justice Williams in Seaman and subsequent cases, is likewise not an aspect of delegation law under separation of powers. Justice Fitzgerald was the leading opponent of this assertion. The action of the Legislature in passing a statute satisfies any political accountability needed. Implementation of a statute by a politically accountable bureaucracy is not a proper aspect of delegation analysis.

Application of the Adequate Standards Test

Measuring Device

The decision in Seaman included an excellent and instructive example of the application of the adequate standards test. The decisions in Seaman, Blue Cross & Blue Shield of Michigan v. Governor, and In re Certified Opinion, Midwest Institute of Health, PLLC all teach the need to identify in the statute a measuring device or some standard against which to measure an implementing agency’s exercise of authority to determine if it comports with legislative intent. The presence of a measuring device allows consideration of whether an agency’s action exceeds or is less than what a statute allows or requires that agency to do, and it permits a determination to be made regarding an action’s consistency with legislative intent.

Incorporation by Reference

Although the issue is subject to some debate, adequate standards can be incorporated by reference, either expressly or impliedly. The outside reference need not be to government standards, although it can be. Further, the reference can be to a word, term, or standard with a secondary meaning, which in turn incorporates further detailed standards.

Other Delegation Principles

An administrative agency in the executive branch cannot be given true judicial powers, nor can a judicial body be given true executive

branch powers. A proper delegation can empower an agency to make rules which impose criminal penalties that will be enforced by criminal prosecutions, so long as that power is authorized by an underlying statute. Sub delegation of power within the executive branch is permitted, if the delegating official retains ultimate responsibility for the exercise of the power or if specifically permitted by statute. If the statute specifically requires that a particular public official exercise the power, however, that power cannot be subdelegated.

Delegation of a purely governmental power to a private entity is unconstitutional. But legislation can constitutionally involve incorporation of standards of private organizations and implementation through procedures which involve private organizations.

Ten Steps to Successful Delegation Analysis

1. Identify and read the relevant underlying statutes.

2. Identify the specific powers granted to the relevant agency.

3. Examine the underlying statute for an overriding statement of purpose or policy.

4. Look for a measuring device in the statute.

5. In challenging, structure an argument around the specific provisions describing the agency’s power to act and note the absence of appropriate statutory language to channel or control the exercise of the power given to the agency.

6. Offer alternative language that might have made the statute clearer or structured the agency’s discretion more tightly.

7. Review the case law in light of the foregoing analysis.

8. If relevant case precedents can be found, offer examples of statutes that were struck down.

9. Discuss the possible consequences of upholding the statute in question, particularly where those subject to it are left facing uncertainty or are in danger of violating the statute no matter what they do.

10. Use the results of the delegation analysis to structure the course of action in the particular matter at hand, particularly regarding whether the agency action in question is consistent with statute’s requirements

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Sources

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 2 (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Argo Oil v. Atwood, 274 Mich. 47, 264 N.W. 285 (1935)

Blue Cross & Blue Shield of Michigan v. Governor, 422 Mich. 1, 367 N.W.2d 1 (1985)

Chesapeake & Ohio Railway Co. v. Public Service Commission, 59 Mich. App. 88, 228 N.W.2d 843 (1975)

Coffman v. State Board of Examiners in Optometry, 331 Mich. 582, 50 N.W.2d 322 (1951)

House Speaker v. Governor, 443 Mich. 560, 506 N.W.2d 190 (1993)

In re Certified Opinion, Midwest Institute of Health, PLLC v. Governor, 506 Mich. 332, 958 N.W.2d 1 (2020)

Milford v. People’s Community Hospital Authority, 380 Mich. 49, 155 N.W.2d 835 (1968)

Osius v. St Clair Shores, 344 Mich. 693, 75 N.W.2d 25 (1956)

Ranke v. Corporations & Securities Bureau, 317 Mich. 304, 26 N.W.2d 898 (1947)

Seaman v. Department of Natural Resources, 396 Mich. 299, 240 N.W.2d 206 (1976)

Soap and Detergent Association v. Natural Resources Commission, 415 Mich. 728, 330 N.W.2d 346 (1982)

Constitutions

United States Constitution, Articles I, II, and III Michigan Constitution 1963, Articles III, IV, V, and VI Official Record, Constitutional Convention 1961

Statutes

Commercial Fishing Law, M.C.L. 308.1b

Executive Organization Act, M.C.L. 16.101 et seq

Emergency Powers of the Governor Act, M.C.L.10.31 et seq.

Executive Orders

Executive Order No. 1991 31

CHAPTER III: AGENCY ACCESS TO INFORMATION

Introduction

Information is the lifeblood of the modern administrative agency. Most agencies could not perform their regulatory functions without receiving information from and about those whom they regulate. Modern decisions, such as Chesapeake & Ohio Railway Co. v. Public Service Commission, demonstrate the awareness of the courts to the importance of access to information in the regulatory process. Analysis of the legal issues surrounding agency access to information starts, as usual, with an examination of an underlying statute. Agencies still must receive the power to acquire information through a legislative grant, but the power need not be explicit in every situation. Generally, as the means of access become more intrusive, the need for express authority becomes more pronounced. Conversely, the less intrusive a government action, the more likely that the power will be found to be implied by the legislative scheme or administrative function delegated to an agency.

Information gathering takes three major forms: (1) required records and reports, (2) inspections, and (3) subpoenas. Constitutional considerations are present when the information sought, obtained, or compelled is incriminating or when an agency seeks to physically intrude on the property of those from whom the information is sought. The first and third forms of information gathering have federal Fifth Amendment implications; the second form has federal Fourth Amendment implications. The Michigan Constitution has nearly identical protections in its Article I. As a result, federal law controls Michigan law more extensively in this area than in any other area except, possibly, due process.

The power of an agency is executive power, not judicial power, meaning that limitations which are found in judicial situations are not always relevant in situations dealing with agency access to information. The powers of an agency to acquire information are investigatory or inquisitorial functions. When subpoenas are issued in support of these agency functions, the limitations on judicial subpoenas do not necessarily apply. The closest judicial comparison for investigatory subpoenas is to those of a grand jury rather than to litigation between parties, according to United States v. Morton Salt Co.

Requirement to Keep Records and Provide Information

In General

The United States Supreme Court declared in Shapiro v. United States that “no investigatory power can be effective without the right to insist upon the maintenance of records.” Agencies must have information to carry out their delegated responsibilities, and much of the information they receive is from those whom they regulate. A great deal of this information is freely and willingly supplied without an agency request, such as that from lobbyists and public interest groups. However, the bulk of the information is supplied because an agency requires that those subject to its authority provide the agency with such information.

An agency may mandate that the regulated entity do any or all of the following: (1) retain the records which it creates in the ordinary course of business, such as receipts, invoices, and ledgers; (2) create and maintain certain new records, such as records of all discharges of pollutants; and (3) create and submit to the agency reports, such as annual reports and audits. An agency’s power to gather information from an individual is somewhat narrower than its power to gather information from an entity. The variety of such requirements and their volume is extensive and constitutes the bulk of what is commonly referred to as “red tape.” In administrative parlance, this red tape is referred to as “required records.”

Required Records in Michigan

Michigan statutes authorizing agencies to require that records be kept and that reports be submitted are legion. While no Michigan case has explicitly addressed the concept or the existence of a required records doctrine, countless cases have reviewed and upheld statutes which expressly or impliedly impose recordkeeping requirements. Chesapeake & Ohio Railway Co. is an example; another is People v. Barnes, which used a statutory recordkeeping requirement to justify, in part, an inspection of an automobile salvage yard. The concern presented by such statutes is that they mandate the creation and maintenance of records that can then be used as evidence in administrative, civil, and criminal proceedings.

Although Michigan case law is negligible regarding the required records doctrine, federal case law that applies to Michigan controls. That case law is based on the Fifth Amendment of the United States

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Constitution, although Michigan’s Constitution has identical language in Article I that would lead to the same result. When the issue is directly addressed in Michigan, it is highly likely that the federal law regarding required records will be adopted in Michigan explicitly and in its entirety.

Federal Required Records Doctrine

Federal law is clear that agencies can be empowered to require regulated persons or entities to retain, create, submit, or make available for inspection records that reflect activity that is a suitable focus of government regulation. The most common justification is that such records are simply not protected by the federal Fifth Amendment, as summarized in Shapiro v. United States: “[t]he principle applies . . . to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. There, the privilege, which exists as to private papers, cannot be maintained.”

Required records are not protected by the Fifth Amendment and may be used as the basis not only of administrative action, but of criminal prosecutions as well. The leading federal cases are Shapiro and Marchetti v. United States, which recognized that “records required to be kept” are public records not protected by the Fifth Amendment. The doctrine applies whether the records are corporate or individual. In fact, the records of corporations and other artificial entities are not protected at all by the Fifth Amendment, according to Paramount Pictures Corporation v. Miskinis and United States v. White. Further, the only person entitled to assert the privilege is the one who possesses that privilege; if records in the possession of one person are actually those of another person, the possessor may not assert the privilege to avoid their production, even if incriminated by those records.

Shapiro and Marchetti together created a three-part test to determine if records were within the federal required records doctrine and therefore unprotected by the Fifth Amendment: (1) are the records of the same kind that are “customarily kept” in this type of activity? (2) do the records have a public aspect? And (3) do the records “involve an essentially noncriminal and regulatory area of inquiry” rather than one inherently suspect of criminal activity? Comparing the underlying facts of any recordkeeping provision to the facts in Shapiro, which involved price regulations, to those in

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Marchetti, which involved gambling, is a useful analytical device to determine which are public records within the federal required records doctrine.

The effect of finding that records are “required,” and therefore public, is that they are not subject to the protections of the federal Fifth Amendment and must be produced regardless of their incriminatory nature. They can be used against their authors in a criminal prosecution, as well as in any civil or administrative proceeding.

Inspections

In General

Another way in which agencies acquire information is through physical inspections of premises and of the locations at which regulated activity is conducted. Inspection power must be granted to an agency through an underlying statute, but apparently can be implied, according to the Michigan Court of Appeals. Inspections are important in many regulatory schemes, some of which control particular industries and some others of which address particular problems. Inspections involve routine visits to the sites of regulated or licensed businesses but can be undertaken without advance notice to the businesses.

Inspections are very often connected to the licensing function of administrative agencies, operating as a source of information on whether an activity is being conducted in compliance with the requirements of the applicable statutes and administrative rules, as well as in conformity with the restrictions or conditions imposed on the license. Inspections of hospitals, nuclear plants, and liquor licensees are examples. However, inspections also support more generalized public health, safety, and welfare considerations and may be required even if licensing is not an aspect of the activity. Inspections of workplaces for safety rule compliance and of buildings for housing code violations are examples.

An inspection is a form of a search and is subject to the restrictions imposed by both the state and federal constitutions. Two major considerations are present in the constitutional context: (1) is the inspection considered to be an unreasonable search in other words, is a search warrant required in order to conduct the inspection? and (2) if a warrant is required, do the normal probable

Federal Case Law

In 1967, the United States Supreme Court determined in Camara v. Municipal Court and See v Seattle that routine administrative inspections were subject to the Fourth Amendment protection against unreasonable searches and seizures. The Court rejected the argument that all such inspections were inherently reasonable. However, the Court articulated a probable cause standard for warrants that allowed such inspections without the normal requirements of particularity, both in describing a specific place to be searched and in articulating a basis for believing that evidence of a particular violation would be found. The Court ruled that so long as there were “reasonable legislative or administrative standards for conducting an area inspection, the warrant would issue.

In 1970, the Court announced in Colonnade Catering Corp. v. United States, and in 1972 confirmed in United States v. Biswell, that in some circumstances inspections without warrants were not unreasonable. This concept created an exception to the warrant requirement for such “pervasively regulated” businesses as liquor purveyors and gun dealers. A few years later, in Marshall v. Barlow’s, Inc., the Court reinforced the distinction between the need for warrants for routine general administrative searches, such as the Occupational Safety and Health Act, and the absence of a need for warrants to inspect pervasively regulated business. In Barlow’s, Inc., the Court confirmed that a probable cause requirement for inspection warrants remained, but at a reduced level of particularity now relabeled as “administrative probable cause.” This version focused on whether the search was part of an overall administrative plan derived from neutral sources.

Nearly ten years passed until the United States Supreme Court in New York v. Burger reinforced the distinction between warrantless inspections for “closely regulated” businesses, which had a “reduced expectation of privacy,” and other administrative inspections where a warrant based on administrative probable cause was required. Warrantless inspections of closely regulated business required that three conditions be present: (1) that there be a “substantial” government interest, that warrantless inspections be necessary to further the regulatory scheme, and that there be a constitutionally adequate substitute for a warrant in the inspection process.

cause requirements associated with police searches for evidence apply?

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Dow Chemical Co. v. United States established that a warrant is not required to “search” open or public areas. Both the United States and Michigan courts have recognized an emergency aid exception and Michigan at least has recognized a community caretaker exception, according to People v. Brzezinski. While holding that government compelled urine samples are searches, both the United States (in Skinner v. Railway Labor Executives’ Association and Michigan (in Middlebrooks v. Wayne County) have allowed exceptions through balancing. And both courts have agreed frequently that prisoners are unprotected from administrative searches.

Michigan Case Law

Michigan’s cases involving inspections closely parallel the federal cases. The leading Michigan case is Tallman v. Department of Natural Resources, which accepted the pervasively regulated business exception to the warrant requirement articulated in the federal case law. While the concept of administrative probable cause was not at issue in Tallman, the Michigan Supreme Court pointedly approved of that standard. In Keeler Brass Co. v. Department of Labor, the Michigan Court of Appeals had previously adopted the probable cause standard established in Barlow’s, Inc. as the appropriate standard to apply to administrative searches.

Tallman was decided after the federal decisions discussed earlier, but before the decision in Burger. The decisions in the two cases are essentially consistent, with the major difference being that the Burger decision established a two tiered analysis to determine whether a warrantless search is permitted, while the Tallman case applied a balancing test involving nearly the same factors to make that decision. Using the separate approaches, the two cases reached the same conclusion that if the place to be searched is part of a pervasively or closely regulated business or industry, a search without a warrant is not unreasonable. Both courts agreed that the length of time of regulation is a factor in determining pervasiveness, but not controlling, according to Donovan v. Dewey in the United States Supreme Court and Gora v. City of Ferndale in Michigan’s Supreme Court.

In 1985, a Michigan Court of Appeals case relying on Tallman, People v. Barnes, precisely anticipated the result in Burger. Both cases dealt with the regulation of junk dealers and both involved inspections by police officials and subsequent criminal charges. In all

likelihood, Michigan’s Supreme Court will make the slight alteration necessary to embrace Burger fully and to abandon the balancing aspect in the Tallman articulation.

Subpoenas

In General

Agencies may have the power to issue subpoenas in their adjudicative process or in support of their regulatory function. Michigan does not have a major leading case on agency subpoena law, although it has many cases dealing with particular aspects of the agency subpoena process. Except for constitutional considerations, federal law is not controlling, but can be persuasive at times.

Agencies have no inherent power to issue subpoenas, even in contested case hearings. Michigan’s courts have been reluctant to infer that power with the exception of one case, Vance v. Ananich The Michigan Administrative Procedures Act is not an independent grant of subpoena power even for contested cases, a circumstance which can put non-agency parties in a disadvantageous position. Despite some decisions limiting the use of subpoenas, such as Monty v. Warren Hospital Corp. and Truel v. City of Dearborn, the state courts remain generously disposed to upholding agency regulatory subpoenas, as demonstrated by In re Petition of Attorney General for Investigative Subpoenas. United States v. Morton Salt Co. long ago brought home the point that evidentiary limitations do not apply, saying “it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite, and the information sought is reasonably relevant.” This is sometimes described as requiring that the record sought be germane to a lawful area of inquiry. But subpoenas can be challenged as overly broad, where the test is reasonableness.

Types of Subpoenas

Agency subpoenas can be issued in conjunction with contested cases or other adversarial proceedings, generally referred to as adjudicatory subpoenas or as part of an agency’s regulatory powers and not in connection with any contested proceeding, generally referred to as investigatory or investigative subpoenas. Each type has distinct characteristics and parameters. The powers to issue either type are independent from one another. According to Michigan Department of Social Services v. Arden, the power to issue one kind

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of subpoena does not limit the power to issue the other, assuming the power to issue both. And Kazor v Department of Licensing and Regulatory Affairs, Bureau of Professional Licensing, held that if an agency has been given the power in one section of a statute to issue subpoenas in its discretion, a separate provision granting mandatory power to issue subpoenas does not limit the agency’s discretion.

As with judicial subpoenas, administrative agencies can be empowered to compel either testimony (ad testificandum) or the production of documents (duces tecum). For adjudicatory subpoenas, Michigan courts tend to follow the model of Michigan judicial subpoenas and the court rules. But the judicial model is not applied to investigative (or investigatory) subpoenas, where restrictions are not based on judicial notions of relevance but on the more permissive concept of inquisitorial power.

Limitations, Exemptions, and Privileges

Keeping in mind that both statutes and judicial cases treat adjudicatory and investigatory subpoenas differently, a statute can restrict the access to subpoenas (1) by limiting through specific privileges, (2) by limiting the subject matter regarding which subpoenas may issue, and (3) by naming the officials within an agency to whom the power to issue subpoenas is given. A statute may require that an agency seek a subpoena from a court, rather than issue it directly, as the Supreme Court decided in Attorney General v. Bruce. Enforcement of a subpoena does not lie within the agency that issues a subpoena. That agency must ask a court to order compliance with the subpoena, then seek to use the court’s contempt powers if compliance is not forthcoming. However, refusal to obey a subpoena can have indirect consequences, such as forming the basis for an action to revoke a license for failure to comply with the conditions of licensure. Federal law requires that challenges to an agency’s authority to proceed must first be made at the agency level, not in a court under Endicott Johnson Corp. v. Perkins and Myers v. Bethlehem Corp. (see generally exhaustion of remedies in Chapter 10), but Michigan law seems to allow for early judicial challenge, according to Clark Equipment Co. v. Department of Treasury.

The request for production of documents which have no Fifth Amendment protection, including “required records,” cannot be opposed on Fifth Amendment grounds. In general, artificial entities have no Fifth Amendment protection since the privilege applies only to natural persons. Only the person who has the privilege can assert

it. A possessor must provide the subpoenaed records of third persons, even though the records are incriminating to the possessor compelled to provide them.

Constitutional Considerations

As noted, no Michigan case has presented the opportunity to review comprehensively the subpoena power of administrative agencies. Nor has a Michigan case explored comprehensively the constitutional limitations on subpoena power. But Michigan is likely to follow the leading federal cases when presented with the opportunity to do so, as it has in other Fifth Amendment situations.

One case is instructive, although it dealt with judicial discovery, not a subpoena. Paramount Pictures Corp. v. Miskinis applied a three question test in the context of objection to compelled production of documents over a Fifth Amendment objections: (1) “Are the documents records of the organization rather than those of an individual who has possession of them?” and (2) “Does the custodian hold the records in a representative, rather than a personal capacity?” If the answer is yes to both questions, and the organization is a corporation, then no further inquiry is required and the records are not protected. But if the organization is of some other form, a third question must be asked: “[d]oes the organization have an established institutional identity which is recognized as an entity apart from its individual members?” Regarding the third question, the Miskinis Court agreed with the United States Supreme Court decision in Bellis v. United States that the size of the entity is not controlling.

Much of what was presented in Miskinis is relevant to questions raised by agency duces tecum subpoenas, including the three questions. Analysis of any assertion of the privilege against self incrimination should begin with an analysis of whose records are involved. If the owner of the records is protected by a privilege, the possessor cannot provide the records, but must honor the privilege. To that analysis, the required records doctrine should be added, because those records are not protected by the Fifth Amendment, according to Shapiro v. United States Miskinis, being a discovery case, did not involve records required to be kept by an administrative entity.

Subpoenas generally present no Fourth Amendment or Michigan Article I concerns because there is neither a search or a seizure involved. Rather, refusal results only in a compulsory process for the enforcement of the subpoena through the courts. Because subpoenas

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do not involve searches, there is no need for probable cause for a subpoena to be issued, according to United States v. Morton Salt Co.

Immunity Provisions

As the decision in Shapiro v. United States illustrates, immunity provisions may be incorporated in subpoena statutes. These provisions have two general forms: “transactional” immunity and “use” immunity. The transactional form immunizes the person to whom immunity is granted from prosecution for any transaction, matter, or thing revealed by a relevant response to compelled evidence. The use form prohibits not prosecution, but the use of the compelled evidence or its fruits in any subsequent prosecution; an independent source can provide the bases of prosecution despite the use immunity.

Immunity provisions are rarely automatically invoked. They do not apply to required records, which are not protected by the Fifth Amendment. The person compelled to provide the record must be the one with the privilege, and the record must be that of the person, who must then specifically refuse to provide the record and do so by invoking the privilege against self incrimination. Immunity must then be granted under the provisions of the underlying statute, at which point the evidence sought must be provided. According to People v. Parsons, only then is immunity in place. A grant of immunity, in effect, removes the danger of self incrimination because the threat of prosecution is eliminated. The difference between transactional and use immunity comes into play here. Some caution is in order since immunity can only be granted when the privilege against self incrimination is asserted, and immunity is specifically granted.

Fifteen Steps to Successful Analysis of Agency Access to Information Cases

1. Read the underlying statute to identify both general authorities to undertake the activity and the specific terms and limits of the agency’s power.

2. Check both federal and Michigan cases, since the federal cases that are not controlling may be adopted or supplemented by Michigan decisions.

3. Search for cases applying the specific statute under which the agency purports to act.

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4. Determine the nature of the documents sought and apply the three part Shapiro Marchetti test.

5. For inspections, check the underlying statute for both authority and restrictions, and consider if there is authority, if a warrant is required, and what will constitute probable cause for a warrant.

6. Determine whether the required records doctrine applies under Colonnade Catering, Biswell, and Barlow’s; if not, consider the level of probable cause required for a warrant under the Camara and See cases.

7. Use Burger and Tallman to determine If the required record doctrine applies.

8. Be sure to compare carefully these cases to the situation at hand.

9. If information is subpoenaed, check the underlying statute for agency authority.

10. Identify if the subpoena was issued regarding a specific case or on a general basis.

11. Assure that the subpoena meets the statutory constraints.

12. Remember that agencies must seek judicial orders to enforce their subpoenas.

13. Review the case law on subpoenas.

14. Be wary of immunity provisions, particularly to determine if any immunity is transactional or use.

15. Consider whether the situation first requires the assertion of a Fifth Amendment privilege.

Sources

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 3 (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Anonymous v. Attorney Grievance Commission, 430 Mich. 241, 422 N.W.2d 648 (1988)

In re Anonymous Attorney, 439 Mich. 404, 487 N.W.2d 104 (1992)

Attorney General v. Bruce, 422 Mich. 157, 369 N.W.2d 826 (1985)

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Bellis v. United States, 417 U.S. 85, 94 S. Ct. 2179, 40 L. Ed. 2d 678 (1974)

Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967)

Chesapeake & Ohio Railway Co. v. Public Service Commission, 59 Mich. App. 88, 228 N.W.2d 843 (1975)

Clark Equipment Co. v. Department of Treasury, 394 Mich. 396, 230 N.W.2d 548 (1975)

Coffman v. State Board of Examiners in Optometry, 331 Mich. 582, 50 N.W.2d 322 (1951)

Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970)

Cross Co. v. United Auto, Aircraft and Agr. Implement Workers of America, 377 Mich. 202, 139 N.W.2d 694 (1966)

Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981)

Dow Chemical Co. v. United States, 476 U.S. 227,106 S. Ct. 1819, 90 L. Ed. 2d 226 (1986)

Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S. Ct. 339, 87 L. Ed 424 (1943)

Gora v. City of Ferndale, 456 Mich. 704, 576 N.W.2d 141 (1998)

Kazor v. Department of Licensing and Regulatory Affairs, Bureau of Professional Licensing, 327 Mich. App. 420, 934 N.W.2d 54 (2019)

Keeler Brass Co. v. Department of Labor, 93 Mich. App. 599, 286 N.W.2d 874 (1979)

Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 69719 L. Ed. 2d 889 (1968)

Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978)

Michigan Department of Social Services v. Arden, 81 Mich. App. 210, 265 N.W.2d 91 (1978)

Middlebrooks v. Wayne County, 446 Mich. 151, 521 N.W.2d 774 (1994)

Monty v. Warren Hospital Corporation, 422 Mich. 138, 366 N.W.2d 198 (1985)

Myers v Bethlehem Corporation., 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638 (1938)

New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987)

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614 (1946)

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Paramount Pictures Corporation v. Miskinis, 418 Mich. 708, 344 N.W.2d 788 (1984)

People v. Barnes, 146 Mich. App. 37, 379 N.W.2d 464 (1985)

People v. Brzezinski, 243 Mich. App. 431, 622 N.W.2d 528 (2000) People v. Parsons, 142 Mich. App. 751, 371 N.W.2d 440 (1985)

In re Petition of Attorney General for Investigative Subpoenas, 274 Mich. App. 696, 736 N.W.2d 594 (2007)

See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967)

Shapiro v. United States, 335 U.S. 1, 68 S. Ct. 1375, 92 L. Ed. 1787 (1948)

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d (1989)

Tallman v. Department of Natural Resources, 421 Mich. 585, 365 N.W.2d 724 (1984)

Truel v. City of Dearborn, 291 Mich. App. 125, 804 N.W.2d 744 (2010)

United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972)

United States v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950)

United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542 (1944)

Yance v. Ananich, 145 Mich. App. 833, 378 N.W.2d 616 (1985)

Constitutions

United States Constitution, Amendments IV, V, and XIV Michigan Constitution 1963, Article I

Statutes

Michigan Administrative Procedures Act of 1969, M.C.L. § 24.273

CHAPTER IV: RULES AND RULEMAKING

Introduction

Rules are the embodiment of “red tape.” To some, they represent all that is wrong with government, from “treating people like numbers” to hamstringing private enterprise with needless bureaucratic requirements. To others, rules are protection against bureaucratic exercises of discretion; they make us a government of laws rather than of the individual preferences of governmental leaders. Rules are the most visible form of government administrative action, since they are collected and published in a manner similar to statutes.

In addition to the authority of agencies to make rules, the courts have addressed the nature and definition of rules, the various types of rules and their effects, the role of rules in the development of policy, and the judicial review of rules for validity. The Michigan APA sets forth procedures which must be followed by agencies when engaged in rulemaking, as well as when they publish guidelines.

Authority

Michigan case law has long recognized that the Legislature can confer rulemaking authority on an administrative agency, provided that adequate statutory standards restrict the actual exercise of that authority. In Coffman v. State Board of Examiners in Optometry, the Michigan Supreme Court reviewed the statutory authority requirement required for an agency to make rules. The underlying statute in Coffman expressly granted to the agency the authority to make rules. The issue centered around the agency’s authority to impose requirements through rules that were more restrictive than the requirements in the underlying statute. The Court held that the agency’s action was not an “arbitrary abuse of discretion.” However, the Court of Appeals took a less expansive view of an agency’s power in Sterling Secret Service, Inc. v. Department of State Police Coffman contained dictum which supported the position that rulemaking authority can be implied from the statutory scheme, stating that “‘the authority of an administrative board or officer * * * to adopt reasonable rules and regulations which are deemed necessary to the due and efficient exercise of the powers expressly granted cannot be questioned. This authority is implied from the power granted.’ “The Court was citing quoting from Ranke v.

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Corporation and Securities Commission, which in turn quoted from California cases. ,

Later, McKibben v. Corporation and Securities Commission supported the need for liberal construction of a statute in order to effectuate the legislative purpose, including the implied power to promulgate rules. Some years later, Clonlara, Inc. v. State Board of Education, saw the Supreme Court supporting the notion that rulemaking power can be implied, but rejecting the argument that all grants of regulatory power implied the power to make rules.

Nature, Definition, Types and Effects of Rules

Nature of Administrative Rules

The importance of administrative rules in the constellation of agency powers cannot be overstated. An agency rule is the functional equivalent of a statute. It states public policy, has broad general effect, applies to future conduct, and need not be developed on an evidentiary basis. When being applied to a person, like in the case of a statute, the policy it embodies is not subject to evidentiary challenge. The issue in challenges to rules is usually limited to whether the rule itself was violated. When a rule is reviewed by a court, many of the presumptions and principles of statutory interpretation and construction are followed. While it is not truly legislative, the promulgation of rules by an agency is quasi legislative activity afforded great deference by the courts.

Definition of Rule

The Michigan Administrative Procedures Act includes a definition of a rule, then defines what a rule is not through an extensive list of exceptions. The APA defines a rule as: “. . . an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension or rescission thereof . . .” [The APA includes a mistaken reference to “the law” here; this is the former language.] The APA currently lists 18 items that are not included as rules. The federal definition is similar, but (1) specifically recognizes that a rule can be of particular effect, (2) provides that a rule has future effect, (3) includes ratemaking (one of the 18 items not included in Michigan), (4) covers statements that interpret law, and (5) contains no list of

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items not covered. The federal APA defines rulemaking as, “the agency process for formulating, amending or repealing a rule,” a definition not included in the Michigan APA.

Agencies may mislabel items or use them improperly, too often confusing items that are not rules with those that are not and applying to persons policy statements that are not rules as if they are rules. An agency’s label may be helpful in determining an agency’s intention regarding an item, but is not controlling. An objective approach is required in determining what policy statement is a rule.

An agency action is a rule if (1) an agency has the statutory authority to make a rule, (2) the action fits the definition of a rule, (3) the agency intended to create a rule, and (4) the agency followed the appropriate APA procedures in promulgating a rule. How an agency uses a policy statement can be helpful in determining whether it is a rule, but usage is not controlling; how a policy statement is used cannot convert a document that is not a rule into a rule. That usage may be an invalid agency action, but that action cannot make something that never was a rule into one.

An agency cannot promulgate valid substantive rules except through the APA required rulemaking procedures, so any purported rules that have not gone through that procedure cannot be rules, cannot be substantive, and cannot have the force and effect of law. That is the lesson of Michigan Farm Bureau v. Bureau of Workmen’s Compensation. If an agency attempts to give unpromulgated material the force and effect of law, that action is unlawful and invalid. That is the lesson of Detroit Base Coalition for the Human Rights of the Handicapped v. Department of Social Services. If an agency does not have rulemaking authority, it cannot make rules. That is the lesson of Clonlara, Inc. v. State Board of Education

Types of Rules

Administrative law generally recognizes four types of rules: substantive (sometimes called legislative), procedural, interpretive (sometimes called interpretative), and housekeeping (sometimes called internal). Neither the federal nor the Michigan APA defines any of these.

Substantive rules establish a standard of conduct which implements law enforced or administered by an agency and have binding effect on individual rights and obligations. They have the force and effect of law. Michigan case law often refers to these as “legislative” rules.

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Procedural rules establish the method by which an agency will execute its designated functions regarding the contact it has with persons and describe the procedures, practices, forms, applications, guidelines, instructions and other requirements which persons must follow or use in the contact they have with an agency. Procedural rules also have the force and effect of law. Both substantive and procedural rules also bind the agency which adopts them.

Interpretive rules express the formal opinion of an agency of another rule or of a statute which interpretation the agency intends to follow in the execution or administration of its designated functions. Generally, interpretive rules bind the agency that adopts them, but not any other person.

Housekeeping rules describe the internal organization, operation, management, and practices of an agency, including instructions or guidelines that employees must follow in the exercise and scope of their functions.

The Michigan APA definition of rule applies to only two of the four types substantive and procedural. Housekeeping rules apparently fall under the items that are not rules according to Section 7(g) “an intergovernmental, interagency, or intra agency memorandum, directive, or communication that does not affect the rights of, or procedures and practices available to, the public.”

The situation regarding interpretive rules is a little more complex. Unlike its federal counterpart, the Michigan APA definition does not mention the word “interprets.” And it specifically excludes from the definition of rule in section 7(h) “a form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.” Michigan’s APA definitional structure includes in Section 3(7) “guidelines,” which are “an agency statement or declaration of policy which the agency intends to follow, which does not have the force or effect of law, and which binds the agency but does not bind any other person.”

Clonlara added confusion by describing agency procedures not promulgated through rulemaking as “interpretive” rules, defining those rules as any rule issued without exercising delegated legislative power to make policy through rules, then holding that these procedures were “invalid” rules. [The dissent in Clonlara argued that the perceived effect of such statements of policy converted them to rules.] However, Clonlara, is contrary to the decision in Michigan

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Farm Bureau, which held that such actions were not rules at all under the Michigan APA definition.

The concept of a guideline in Michigan is very close to that of an interpretive rule in the federal system. The Clonlara case does not reconcile the confusion between guidelines and interpretive rules in Michigan, but implies that they are not the same. But the compliance procedures in Clonlara underwent neither the procedures required to promulgate a rule nor the procedures required to adopt a guideline. And the Court in that case did not identify what procedures, if any, might apply if an agency wanted to adopt an interpretive rule.

Effect of Rules

Substantive rules have the force and effect of law they are very much the equivalent of statutes. Procedural rules are rules of the game, binding both the agency and public as players of the game. Interpretive rules and guidelines bind the agency, but not the public. Housekeeping rules bind only the agency and its employees and create no private rights or obligations.

Policy Development and the Use of Rules

Two significant issues in Michigan cases focus on rules in the development of public policy: one is whether an agency may enforce its underlying statute in the absence of passing rules first, particularly where the statutory language seems to mandate the promulgation of rules; the other is whether an agency can choose to make policy through orders, usually proceeding through contested case hearings, rather than through rulemaking a concept often described as “agency choice of mode of action” or “rule versus order.”

Several cases focus on the agency development of policy through orders. Michigan Life Insurance Co. v. Commissioner of Insurance demonstrated that a new interpretation of a statute can be made during a contested case adjudication. Michigan State Chamber of Commerce v. Secretary of State showed that an agency can use its adjudicatory power to make policy in a case, even though that policy was first enunciated in statements outside the hearing context and without benefit of the rulemaking process.

The Supreme Court addressed the issue of statutory language that seems to mandate rules first in West Bloomfield Hospital v. Certificate of Need Board. The Court held that the failure of an agency to comply with a rule passage requirement should not

prohibit that agency from enforcing the statute in an adjudication, because doing so would frustrate the overriding purpose of the legislation.

One complication of the debate over how an agency develops public policy or how it articulates an agency’s interpretation of an underlying statute through rules or orders is that public policy supports both choices. In Detroit Automobile Inter Insurance Exchange v. Commissioner of Insurance, the Court of Appeals agreed with the federal judicial view that agencies may choose to articulate policy by rule or by order in the agency’s informed discretion. But other panels of that court seem to ignore this position. One major justification for rejecting the rules first approach is that an agency need not and cannot anticipate every conceivable situation through rulemaking before enforcing its underlying statute. Further, once rules are developed through rulemaking, they can only be changed through rulemaking, which may itself frustrate legislative intent, according to American Way Life Insurance Co. v. Commissioner of Insurance.

As Michigan Farm Bureau demonstrated, many pronouncements by agencies may have the appearance of binding effect, but only rules actually bind those subject to them in the same manners as statutes. Other pronouncements may not be legally binding but can have the practical effect of restricting or intimidating those to whom they are directed. The courts have not always been careful in analyzing the distinction between legal and practical effect, but Clonlara made it clear that policy statements, not made in rule form, do not have the force of law, that an agency must apply the statute and not the statement, and that the practical effect of a statement does not make it a rule. Interpretive statements have value, since they serve to guide or reveal an agency’s views, yet they do not create or destroy private rights. Still, an agency’s use of such statements as if they were rules is improper. And an agency cannot use such statements to later its rules, as shown in Detroit Base Coalition.

Rulemaking Procedure

The Legislature has reacted to the finding of the Supreme Court in Blank v. Department of Corrections that legislative approval of agency rules a step in the promulgation of a rule that was formerly required by the APA violated the separation of powers provisions of the Michigan Constitution. After seeking and failing to find ways to keep itself involved in the actual approval of rules, the Legislature

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has imposed procedural requirements on the processing of rules, mainly on the Governor and the office charged with the executive rulemaking oversight. These impose burdens on the very agencies that the Legislature empowers to make rules, but create no new public rights.

After Blank, although the Michigan APA is complicated by one of the nation’s most complex rulemaking procedures, the six other basic procedural elements remain the same and apply to all rulemaking (1) notice, (2) hearing, (3) approvals, (4) adoption, (5) promulgation, and (6) publication. This contrasts with the federal system, which has separate procedures for “informal” or “notice and comment” rulemaking and for “formal” rulemaking, depending on the language of the underlying statutory provision empowering rulemaking. Few Michigan cases even mention the overall process; the APA does not define “rulemaking,” but does define “processing of a rule” as the action regarding a rule that includes the rules adoption (also defined as the formal action of an agency establishing a rule) and ending with its promulgation.

Notice

Rulemaking begins with a detailed notice of rulemaking which must include: (1) timely notice, (2) the statutory authority for the rule, (3) the time and place of the hearing on the rule, (4) the manner of submitting views to the agency, (5) the terms of substance of the proposed rule, (6) a description of the subject and issues related to the rule, (7) the proposed effective date of the rule. Notice must be made as required in the underlying statute or in three newspapers of general circulation, as well as in the Michigan Register and through the Internet.

Hearing

A public hearing follows the notice. This hearing is not an evidentiary proceeding, but is legislative in nature. Statutes imposing additional requirements are rare. Either the head of the agency or someone knowledgeable about the rules must attend and participate in the discussion of the proposed rules. Those attending are allowed to present data, viewpoints, questions, and arguments. Exceptions to the notice and hearing phase are permitted for rules of agency organization and methods, for rescinding obscure rules, and for emergency rules.

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Approvals

With the finding that the Legislature’s approval role was unconstitutional, as predicted in the earlier edition of this Primer, the remaining approval is that of the Legislative Service Bureau, which must approve all rules as to form, classification, and arrangement.

Adoption

An agency must adopt approved rules. Adoption is “the step in the processing of a rule consisting of the formal action of an agency establishing a rule before its promulgation.”

Promulgation

An agency must promulgate a rule, which is “that step in the processing of a rule consisting of the filing or the rule with the Secretary of State. This must occur not less than 15 session days after adoption.

Publication

The rules are published in the Michigan Administrative Code or a quarterly supplement. Publication makes the rules effective unless the rule itself establishes an earlier effective date, which can be no earlier than 15 after promulgation.

Summary Failure to follow the Michigan APA rulemaking procedure renders the rules invalid, meaning that they are not rules at all. A challenge to the notice and hearing requirements must be made within two years. In all instances, a challenger must show material prejudice resulting from the procedural defect, particularly when the method of judicial review is a petition for review under Chapter 6 of the APA. Once promulgated, presumptions attach that the rule was adopted correctly and that a published rule is a true copy of the approved rule.

These rulemaking provisions do not apply to guidelines, which are subject instead to the procedural requirements of Chapter 2 of the Michigan APA. The guideline procedures include notice, comment, and adoption by the agency.

Validity of Rules

Setting aside the quarrels about definition and whether invalid rules are really rules, only rules that are valid can affect the rights of

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a person. Rules can be reviewed for validity on three grounds constitutionality, improper procedure in their formulation, and content that is substantively incorrect. A fourth threshold ground is that an agency has at least implied authority to issue rules. Absent authority, an agency’s purported rules are at best some sort of interpretive statement or, arguably, interpretive rules.

Constitutionality

Challenging rules because they are unconstitutional is the oldest and most difficult basis on which to prevail. Although not well articulated in the cases, these challenges generally have a substantive due process context, which has been articulated as “[the regulations . . . are valid so long as they are not unreasonable or arbitrary. If any doubt exists as to their invalidity, they must be upheld.” Perhaps better is this: “If a real and substantial relationship exists between regulations enacted pursuant to a state’s police power and the health, safety, morals, or general welfare of the public, the regulations will be upheld unless they ‘needlessly * * * invade property or personal rights as protected by the Constitution * * *.’ “ Improper delegation sometimes gets mixed in, but that notion is actually about the underlying statute, since it is based on an improper transmittal of power by the Legislature to an executive branch agency.

Procedural Impropriety

A rule adopted in violation of the Michigan APA is invalid (or not a rule at all), at least for a period of two years as to failure to comply with the APA’s notice and hearing provisions. The two year limit does not apply to the other procedural requirements. This principle is the key which prevents an agency from using material not adopted and promulgated by an agency as if it is a rule. An agency cannot use a pronouncement to “short cut” evidentiary proofs in a contested hearing unless the pronouncement has undergone the rulemaking process.

Substantive Content Validity

A test for substantive validity slowly evolved in Michigan, but has no theoretical justification, at least as so far articulated in a case. In its present form, it retains some of its substantive due process roots, but has taken on aspects of statutory construction principles. In addition to the rationality aspect articulated in Toole v. Michigan

State Board of Dentistry, the Michigan Supreme Court has also stated that the test for the validity of rules is whether they have “a proper relationship to the act.” That language, which is from Coffman v. State Board of Examiners in Optometry goes beyond Toole’s rationality test and its stated presumption of constitutionality, adding an element of statutory construction analysis independent of constitutional considerations.

In Luttrell v Department of Corrections, the Supreme Court adopted the three part test first stated by the Court of Appeals in Chesapeake & Ohio Railway Co. v. Public Service Commission: “ ‘(1) whether the rule is within the subject matter covered by the enabling statute; (2) if so, whether it complies with the underlying statutory intent; and (3) if it meets the first two requirements, when [sic] it is neither arbitrary nor capricious.’ “This test was adopted without cited authority or other explanation in both Luttrell and Chesapeake & Ohio Ry.

This seems to be a more articulate version of the Toole decision. The first part of this test is a version of the “scope” of the statute concept, which basically looks to see if the rule went beyond the scope of the statutory authority granted, rather than whether the rule went beyond the minimum requirements set out in an underlying statute. The second part is a summarization of the principles of statutory construction used to determine whether any action comports with legislative intent. Included within the principles are the usual rules of statutory construction, the presumption of validity, and deference to an agency interpretation of its authorizing underlying statute. The third test uses the concepts of arbitrariness and capriciousness in a context often very close to the constitutional rationality test.

A rule’s validity is not determined by reviewing the factual basis for its adoption, despite some authority to the contrary. The rationality test usually suffices regarding whether rules have a valid basis in fact if there is any rational set of facts that would sustain a rule, the court must assume that those were the facts which the agency had in mind when adopting a rule. Thus, no evidentiary basis is needed for rulemaking. According to People v. Soule, the question of facts considered by an adopting agency cannot be tried over by the courts. As to emergency rules, the Court of Appeals has stated that the issue is whether an adopting agency lacked a substantial basis for its finding that the public interest required promulgation” of an emergency rule.

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Ten Steps to Successfully Analyzing Agency Rules and Rulemaking

1. Consider whether the agency action asserted by the agency is a rule by definition, and review the Michigan APA exemptions to the definition of rule to see if the policy in question is exempt from the rule definition.

2. Identify the statutory authority for the rule and confirm that the rule in question is consistent with the authority granted.

3. Check to see if there are rules that might apply, even though not asserted as applicable by the agency.

4. Compare the language of the rule to the language of the underlying statute to determine if the rule is valid under Michigan case law.

5. Review the rule as published in the Michigan Administrative Code, then review the application of the rule to the facts of the case at hand to determine if the rule is being used as intended under the particular fact setting. Compare the effect the agency claims the rule has to the nature of the rule and legislative intent.

6. Review the cases that have previously applied the rule, including a comparison of the facts and interpretation in those cases to those in the present case.

7. Consider whether the rule violates any constitutional protection, including substantive due process and the rule’s reasonableness.

8. Review the history of the rule’s publication to determine if all procedural requirements in both the underlying statute and the Michigan APA have been met.

9. If an agency asserts that no rule applies, determine if it is attempting to enforce a policy announced in some other form as if it is a rule.

10. Keep in mind that even if a rule or policy is unenforceable, the conduct may still violate the underlying statute and be subject to agency enforcement.

Sources

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 4 (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer,

T.M. Cooley Law Review, Volume 12:21 (1995) Bienenfeld, Michigan Administrative Law (2d ed. 1991)

Cases

American Way Life Insurance Co. v. Commissioner of Insurance, 131 Mich. App. 1, 345 N.W.2d 634 (1983)

Blank v. Department of Corrections, 462 Mich. 103, 611 N.W.2d 530 (2000)

Blank v. Department of Corrections, 222 Mich. App. 385, 564 N.W.2d 130 (1997)

Clonlara, Inc. v. State Board of Education, 442 Mich. 230, 501 N.W.2d 88 (1993)

Coffman v. State Board of Examiners in Optometry, 331 Mich. 582, 50 N.W.2d 322 (1951)

Detroit Base Coalition for the Human Rights of the Handicapped v. Department of Social Services, 431 Mich. 172, 428 N.W.2d 335 (1988)

Detroit Automobile Inter Insurance Exchange v. Commissioner of Insurance, 119 Mich. App. 113, 326 N.W.2d 444 (1982)

Luttrell v Department of Corrections, 421 Mich. 93, 365 N.W.2d 74 (1984)

McKibben v. Corporation and Securities Commission, 369 Mich. 69, 119 N.W.2d 557 (1963)

Michigan Farm Bureau v. Bureau of Workmen’s Compensation, 408 Mich. 141, 289 N.W.2d 699 (1980)

Michigan Life Insurance Co. v. Commissioner of Insurance, 120 Mich. App. 552, 328 N.W.2d 82 (1982)

Michigan State Chamber of Commerce v. Secretary of State, 122 Mich. App. 611, 322 N.W.2d 547 (1983)

People v. Soule, 238 Mich 130, 213 N.W. 195 (1927)

Ranke v. Corporation and Securities Commission, 317 Mich. 304, 26 N.W.2d 898 (1947)

Sterling Secret Service, Inc. v. Department of State Police, 20 Mich. App. 502, 174 N.W.2d 298 (1969)

Toole v Michigan State Board of Dentistry, 306 Mich. 527, 11 N.W.2d 229 (1943)

West Bloomfield Hospital v. Certificate of Need Board, 452 Mich. 515, 550 N.W.2d 223 (1996).

Constitutions

Michigan Constitution 1963, Article III, IV, V, and VI

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Statutes

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.224 to 24.228 (guidelines)

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.231 to 24.266 (rules)

CHAPTER V: INFORMAL ADJUDICATION AND DUE PROCESS

Introduction

The due process clauses of the federal (U.S. Const. Amend. V and XIV) and Michigan (Const. 1963, art I, § 17) constitutions impose procedural requirements on administrative agencies when making certain decisions, both saying that the government cannot “deprive [any] person of life, liberty, or property, without due process of law.” The basic question is whether agency action that results in taking liberty or property provides notice and the opportunity for hearing. When the answer is yes, the focus then turns to the extent of the hearing required and its timing. If the constitutions do not require notice and opportunity for hearing, the relevant decision making procedures are determined by underlying statutes, agency rules, and customs within an agency.

Michigan’s Constitution also provides that “[t]he right of all individuals, firms, corporations and voluntary associations to fair treatment in the course of legislative and executive investigations and hearings shall not be infringed.” Although not much judicial scrutiny of this provision has taken place, the Court of Appeals applied a dictionary definition of “investigation” in Carmacks Collision, Inc. v. City of Detroit.

The Michigan Administrative Procedures Act does not provide procedures for all decisions, only for contested cases. The Michigan APA does not define “agency action,” “order,” or “adjudication,” unlike its federal counterpart. Of necessity, a definitional framework must be created to identify when due process controls agency action and when the Michigan APA applies.

Orders and Adjudication

Adjudication can be considered to be, as defined in the federal APA, the “agency process for the formulation of an order,” an “order” being “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making, but including licensing.” Orders are made in quasi judicial or adjudicative, rather than quasi legislative settings. Orders usually affect only one or a few individuals, while rules tend to apply generally. Orders tend to apply general principles to specific facts involving individuals, while rules tend to involve policies and to control future conduct.

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These differences in part explain why adjudication is subject to due process controls and rulemaking is not. Historically, this distinction was crucial in determining whether a person affected by government action was entitled to an evidentiary hearing in the course of that action. According to the leading federal cases, Londoner v. Denver and Bi Metallic Investment Co. v. Colorado, if the action involved adjudicative facts a hearing was required, but if it involved legislative facts, a hearing was not required. Michigan’s Supreme Court rejected the need for a due process hearing in the rulemaking setting in Sherwin v. State Highway Commissioner

In Michigan, those “adjudications” by state agencies made in situations where the APA contested case procedures apply generally those where an underlying statute requires an evidentiary hearing or where the action of a state agency involves a deprivation of a due process interest are the equivalent of federal “formal” adjudication. All other adjudications are “informal.” Contested cases in Michigan include those required by due process, but not the formal adjudications in the federal system, because Michigan’s definition says “required by law,” while the federal APA definition uses the more restrictive “required by statute.” This distinction was picked up by a state prisoner in Lawrence v. Department of Corrections, which held that the APA applied to state agency hearings required by due process. An underlying statute or the APA itself can modify or eliminate contested case coverage, as the Michigan Supreme Court observed in Walen v. Department of Corrections.

Final orders [or decisions] developed where no hearing is required by due process or statute are the result of “informal” adjudications. Procedures controlling such decisions vary considerably and are largely those required by an underlying statute, agency procedural rule, or the customs and practices of particular agencies.

Note that the word “hearing” is not included in the definitional structure, because it has so many manifestations that it is not sufficiently precise to be useful. Although the word appears frequently in statutes and judicial decisions, it should not be considered a word of art in due process analysis. And the unfortunate decision in Michigan Association of Home Builders v. Director of Department of Labor & Economic Growth, which coined the new definition of “non contested case” incorporating both informal adjudication and the outcome of rulemaking, should be used with caution, if at all.

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General Concepts

In adjudicatory situations, the concern is basically with the impact of procedural due process. Unfortunately, the due process law in Michigan is badly confused, due mainly to the failure of Michigan courts to differentiate properly among three constitutional considerations: (1) separation of powers, (2) substantive due process, and (3) procedural due process. These concepts also are mistakenly intertwined with notions of “fairness,” which may in turn create confusion of fair process with fair outcome. See Walters v. National Association of Radiation Survivors.

Most modern due process cases have dealt with the procedures used in agency decision-making, the analysis focusing on whether the procedures used by agencies have been adequate to protect the important interests covered by the due process clause. That focus is properly denominated “procedural’ due process. “Substantive” due process examines whether the activity subject to agency action is a legitimate area of governmental control at all. It examines the reach of governmental power, rather than the manner in which an agency power is executed. Separation of powers analysis concentrates on whether one branch of the government has improperly given its powers to another branch or wrongfully assumed the powers of another branch, and has nothing to do with due process except in the most abstract sense.

What has brought these considerations together in Michigan cases has been the concept of adequate “standards.” Although the standards concept is appropriately tied to delegation or separation of powers analysis, the use of the word “standards” in substantive due process cases as a device for identifying precisely the nature and extent of the power given to an agency has led to an unfortunate blurring of the two constitutional considerations. Also, procedural and substantive due process have been confused, sometimes with reference to the failure of a statute to provide adequate “standards” to give a regulated person sufficient notice of prohibited conduct. The failure of the courts to recognize that the word standards can be used in different contexts and the judicial inability to maintain the conceptual frame of reference have led to almost indecipherable due process law in Michigan. The source of much of the confusion is Milford v. People’s Community Hospital Authority.

Michigan’s due process law is confused because the courts have not always kept the principles of due process both substantive and procedural distinct from one another and from other legal

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principles. That confusion can be avoided by careful analysis of the challenged agency action and keeping the conceptual issue clear.

Fundamentals of Due Process

The due process language in Michigan’s Constitution is identical to that in the federal Constitution. Michigan courts have resisted adding procedural requirements to those identified in the federal cases. Older federal and state decisions which adopted the “privilege” doctrine were swept aside in the due process revolution of the 1960s and 1970s in favor of protected interests and entitlement analysis. No generalized notion of fairness overrides the requirement that the new fundamentals be met.

Due process requirements exist only when certain criteria are present: there must be (1) a “deprivation” of a (2) “person’s” protected “interest” in life, liberty, or property, (3) by “governmental or state action.” When such deprivations occur, they must satisfy procedural due process requirements, which are determined by the peculiar circumstances of each action, normally through some form of balancing of interests. The “persons” protected by this clause are broadly defined; about the only type of entity that the courts have treated as having no due process rights is municipal corporations.

The deprivation must be of a person’s protected due process interest, according to City of Livonia v. Department of Social Services, and a general governmental action, such as passing a statute or promulgating a rule does not constitute a deprivation. In Shavers v. Attorney General, the Michigan Supreme Court held that “[t]he protections of the due process clause can only be invoked when there has been state action,” but the nature of state action has not been clearly defined by the case law. The courts have on occasion needlessly confused the law on deprivation under the due process clause with the law on “takings” under the just compensation clause.

Only the opportunity for due process protections is protected; due process rights can be waived by the affected person. The rule of prejudicial error for procedural failures also applies.

Due Process Interests and the Right to Hearing

Due process analysis is actually an exploration of three topics or questions; (1) Is there a right to hearing at all? (2) If so, what should be the scope of that hearing? (3) When should that hearing take place

ADMINISTRATIVE LAW PRIMER

in relation to the governmental action that constitutes the deprivation of the protected interest?

Generally, due process interests involved in administrative agency action are liberty or property interests; these interests are not created by the constitutions, but by “existing rules or understandings.” The modern cases have abandoned the “legal” formalisms and regarded the legal definition of liberty and property as too technical. The more recent cases have replaced these older formulations with a two fold examination of the nature of the interest at issue and of the person’s connection to that interest.

The analysis has become mainly an issue of determining first by a rather definitional approach whether a protected interest is involved and, second, whether the person’s relationship with that interest is an expectation or an entitlement. Board of Regents of State Colleges v. Roth and Perry v. Sindermann are the federal cases which abolished the old approach that distinguished between rights and privileges, rejected the technicalities of legal forms in favor of the two fold analysis, and adopted a definitional consideration which focused on the nature of the interest rather than its weight. The Michigan Supreme Court in its decisions in Bundo v. City of Walled Lake and Bisco’s, Inc. v. Liquor Control Commission adopted all aspects of the Roth/Perry analysis. Bundo and Bisco’s became the leading cases in Michigan.

The Michigan Supreme Court said in Williams v. Hofley Manufacturing Co. that a protected interest does not come from the Constitution, but from “an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Property interests recognized as protected by due process in federal and Michigan cases include public employment, licenses, and government benefits, as well as such others as a cause of action, worker’s compensation benefits, a claim against the government, real estate subject to a claim, and real and personal property. Some states have also found that certain interests are not “property” within the meaning of the due process clause, such as the interest in parking along a public highway. Liberty interests recognized by Michigan and federal cases include numerous aspects of prison confinement and, at least arguably, reputation.

Even though the nature of an interest itself may satisfy the definition of property or liberty, the person alleging a due process violation must demonstrate a sufficient relationship to that interest. In

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Roth, the Supreme Court described the necessary relationship: “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must, instead, have a legitimate claim of entitlement to it.” Narrowly stated, the due process clause protects entitlements, not expectations. Characterization of the interest itself as property or liberty is important, but the characterization of the relationship of the person to the interest may be even more important in a successful argument that a due process interest has been deprived.

Although cases occasionally hint of a tendency to balance in determining whether a right to hearing exists that is, they consider the weight of the interest and not just its nature the approach established in both the federal courts and Michigan is to follow a definitional approach. Whether some property interests could be considered de minimus has not been addressed.

Scope of Due Process Hearings

“Due process . . . is a flexible concept that varies with the particular situation.” Michigan law seems to adopt the federal notion that what process is due should be evaluated by balancing the interest of the person and the government in light of the nature of the decision which must be made. In the absence of clearly controlling precedent, this flexible approach requires that a determination be made regarding the value of each hearing procedure, cross examination for instance, within the circumstances of each case.

Federal cases have created a spectrum of due process protection dependent upon the interests involved and the nature of the decision at issue. The case demonstrating the greatest amount of protection is Goldberg v. Kelly, which involved welfare benefit termination; the United States Supreme Court gave the least protections to students given short school suspensions in its decision in Goss v. Lopez.

The major factors to be considered generally are stated as the nature of the governmental function, the private interest affected, and the circumstances or nature of the decision. However, over time a five factor analysis applied in Mathews v. Eldridge, which was used to determine the timing of a hearing rather than its scope, has become the common articulation of the balancing required to determine scope. The five factors are: (1) the nature of the private interest involved, (2) the governmental interest involved, (3) the risk of erroneous action using the existing procedures, (4) the value of proposed additional safeguards, and (5) the burden imposed on the

government by the additional safeguards. These are applied to evaluate both the specific procedures which might be used and the overall scope of any due process hearing.

Many cases have explored the availability of familiar procedures in administrative decision making, including the Administrative Procedures Act itself. One of the two fundamental safeguards when due process does require a hearing is that there be some kind of notice. Although the actual articulation of the notice requirement has varied from “some kind” to “timely written notice,” the cases make it clear that notice need not be the equivalent of judicial fact pleading. The second fundamental safeguard is that there must be an opportunity for some kind of hearing, but not one in which the rules of evidence apply, even in contested cases. Various evidentiary practices, such as cross examination, often are found to be required in particular circumstances. Discovery has specifically been rejected as a due process constitutional right in administrative proceedings. The right to counsel is often excluded or limited.

Particular emphasis has been placed on the fairness of the administrative tribunal system. That system has been upheld, as has the use of hearing officers. Final decisions must be made on the record at these hearings, either from a transcript of the proceedings or based on a proposed or recommended decision of a presiding officer. Agencies must conform to the procedural requirements in their underlying statute and the agency’s own procedural rule, although there is debate whether the failure to do so violates due process or only administrative law principles. Apparently, a statute cannot limit procedural due process rights, even if the statute which established the right to a hearing contains the limitations on the scope or timing of that hearing.

Matters of individual bias are handled much as matters involving the judiciary, but the dangers of institutional bias and the combination of functions have led to case law which imposes a requirement of a “fair trial in a fair tribunal.” The general test is that the decision makers can be disqualified or the agency structure itself found to violate due process “where experience teaches that the probability of actual bias . . . is too high to be constitutionally tolerable.” That probability exists where (1) there is a pecuniary interest in the outcome, (2) there is personal abuse of the decision maker by a party, (3) the decision maker and a party are enmeshed in other matters, and (4) there has been prior contact as accuser, investigator, fact finder, or initial decision maker, all well

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summarized in Crampton v. Secretary of State. However, the combination of functions within the agency itself is not disqualifying, for instance where the initial contact is on a probable cause basis and the final decision rests on a preponderance of evidence standard. Michigan has adopted a central panel system for the employment of hearing officers to counter institutional bias.

A confusing line of cases in Michigan features a notion of “rudimentary” due process, which states that there are absolute minimum procedures in any due process case. However, even in the very case in which this version of minimal due process was adopted by the Michigan Supreme Court, Bundo v. City of Walled Lake, the Court balanced away one of the so called rudiments, leaving the issue as to whether there is a minimum due process requirement in doubt.

Timing of Due Process Hearings

The leading federal case on the timing of due process hearings that is, whether a deprivation must take place after a hearing or is allowed before a hearing is provided is Mathews v. Eldridge. The United States Supreme Court in Mathews set forth the five factor balancing test to determine the timing of a hearing, but that test has proven to be so valuable that it serves not only as the best test for timing analysis, but as a test to determine the appropriate scope of hearing, as discussed in the previous section.

Timing involves consideration of the impact on a protected interest when the government makes the deprivation first and then provides a hearing. In situations where the government acts in an emergency, the courts have eschewed the balancing test in favor of an analysis of the emergency circumstances justifying prehearing deprivation. In other settings, a balancing takes place and a determination is made which justifies proceeding without a prior hearing, or imposing limited prehearing procedures, or requiring what amounts to a full-blown, pre-deprivation adversarial hearing. Even when no pre deprivation procedures are required, a post deprivation hearing will be required, except possibly for emergencies. Only if no protected due process interest is deprived at all can action occur without offering a hearing at some time; and where a pre termination hearing of a limited nature is used, there must be a full hearing at some point. What is not required is that there be two due process hearings.

Like with federal cases, Michigan case law has also recognized that some circumstances warrant action prior to hearing. When an agency does act without a prior hearing, the Michigan Supreme Court in Craig v. City of Detroit imposed a requirement that the subsequent hearing be expedited.

Ten Steps to Successful Michigan Due Process Analysis

1. Identify the agency action that is to be challenged.

2. If the action is that of a legislative body, the challenge will be either for improper delegation or lack of substantive due process.

3. If the argument is that legislative authority was improperly delegated to an administrative agency, the test is whether there are not adequate standards in the challenged statute in violation of the Constitution’s separation of powers provisions.

4. If the argument is that legislative authority was improperly exercised by the Legislature itself, the test is whether the challenged statute is rationally related to the police powers of the state, in violation of substantive due process.

5. If the argument is that the administrative action amounts to a taking of real property, the appropriate protection is found in the Constitution’s just compensation clause, rather than its due process clause.

6. If the action to be challenged is a rule, and the agency followed the APA required procedures in promulgating the rule, the rulemaking process satisfies whatever procedural due process the Constitutions might impose, and the challenge must be made on other grounds.

7. If the agency action is an order which applies an underlying statute or rule to a person, the Constitution guarantee minimal due process for a person deprived of a protected liberty or property interest by state action, with a focus on the nature of the interest affected by the agency action and the relationship between the interest and the person.

8. If no protected interest is involved, or a person’s relationship to the interest is not one of entitlement, the procedures in the adjudication are determined by the underlying statute, the Administrative Procedures Act, if applicable, and the relevant agency rules, rather than by due process.

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9. If a person is deprived of a protected interest to which the person is entitled, the person is entitled to notice and an opportunity for hearing, and the procedures for that hearing are determined by balancing.

10. In general, both the timing and scope of a due process hearing are determined by balancing the following factors: (1) the nature of the private interest involved, (2) the governmental interest involved, (3) the risk of erroneous deprivation using the agency’s existing procedures, (4) the value of proposed additional safeguards, and (5) the burden imposed on the government by the additional safeguards.

Sources

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 5 (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Abbott v. Howard, 182 Mich. App. 243, 451 N.W.2d 597 (1990)

Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)

Bi Metallic Investment Co. v. Colorado, 239 U.S. 441, 36 S. Ct. 141, 60 L. Ed. 372 (1915)

Bisco’s, Inc. v. Liquor Control Commission, 395 Mich. 706, 238 N.W.2d 166 (1976)

Board of Curators v. Horowitz, 435 U.S. 78, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1978)

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)

Bohannon v. Sheraton Cadillac Hotel, Inc., 3 Mich. App. 81, 141 N.W.2d 722 (1966)

Bundo v. City of Walled Lake, 395 Mich. 679, 238 N.W.2d 154 (1976)

Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961)

Carmacks Collision, Inc. v. City of Detroit, 262 Mich. App. 207, 684 N.W.2d 910 (2004)

Case v. Liquor Control Commission, 314 Mich. 632, 23 N.W.2d 109 (1946)

City of Livonia v. Department of Social Services, 423 Mich. 466, 378 N.W.2d 402 (1985)

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)

Craig v. City of Detroit, 397 Mich. 185, 243 N.W.2d 236 (1976)

Crampton v. Secretary of State, 395 Mich. 347, 235 N.W.2d 352 (1975)

In re Del Rio, 400 Mich. 665, 256 N.W.2d 727 (1977)

Dickerson v. Warden, Marquette Prison, 99 Mich. App. 630, 298 N.W.2d 841 (1980)

Dow v. State, 396 Mich. 192, 240 N.W.2d 450 (1976)

Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S. Ct. 870, 94 L. Ed. 1088 (1950)

Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973)

Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)

Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975)

Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 688 (1979)

Greer v. John E. Green Plumbing & Heating, 75 Mich. App. 451, 255 N.W.2d 17 (1977)

Hodel v. Virginia Surface Mining Association, 452 U.S. 264, 101 S. Ct. 2352, 69 L. Ed. 2d 1 (1981)

Johnson v. Mississippi, 403 U.S. 212, 91 S. Ct. 1778, 29 L. Ed. 2d 423 (1971)

Kent County v. Department of Social Services, 149 Mich. App. 749, 386 N.W.2d 663 (1986)

Lawrence v. Department of Corrections, 88 Mich. App. 167, 276 N.W.2d 554 (1979)

Londoner v. Denver, 210 U.S. 373, 28 S. Ct. 708, 52 L. Ed. 1103 (1908)

Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)

Michigan Association of Home Builders v. Director of Department of Labor & Economic Growth, 481 Mich. 496, 750 N.W.2d 593 (2008)

Michigan State Employees Association v. Department of Mental Health, 421 Mich. 152, 365 N.W.2d 93 (1984)

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Milford v. People’s Community Hospital Authority, 380 Mich. 49, 155 N.W.2d 835 (1968)

Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)

In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 2d 942 (1955)

Napuche v. Liquor Control Commission, 336 Mich. 398, 58 N.W.2d 118 (1953)

National Independent Coal Operators’ Association v. Kleppe, 423 U.S. 388, 96 S. Ct. 809, 46 L. Ed. 2d 580 (1976)

North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S. Ct. 101, 53 L. Ed. 195 (1908)

Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972)

Rochester Community Schools Board of Education v. State Board of Education, 104 Mich. App. 569, 305 N.W.2d 541 (1981)

Rockwell v. Crestwood School District Board of Education, 393 Mich. 616, 227 N.W.2d 736 (1975)

Shavers v. Attorney General, 402 Mich. 554, 267 N.W.2d 72 (1878)

Sherwin v. State Highway Commissioner, 364 Mich. 188, 111 N.W.2d 56 (1961)

Turner v. Washtenaw County Road Commission, 437 MIch. 35, 467 N.W.2d 4 (1991)

United States v. Morgan, 313 U.S. 409, 61 S. Ct. 999, 85 L. Ed. 1429 (1941)

Viculin v. Department of Civil Service, 386 Mich. 375, 192 N.W.2d 449 (1971)

Walen v. Department of Corrections, 443 Mich. 240, 505 N.W.2d 519 (1993)

Walters v. National Association of Radiation Survivors, 473 U.S. 305, 105 S. Ct. 3180, 87 L. Ed. 2d 220 (1985)

Wayne County Sheriff’s Department v. Michigan Labor Relations Board, 23 Mich App. 309, 178 N.W.2d 512 (1970)

Williams v. Hofley Manufacturing Co.,430 Mich. 603, 424 N.W.2d 278 (1988)

Williams v. Mayor of Baltimore, 289 U.S. 36, 53 S. Ct. 431, 77 L. Ed. 1015(1933)

Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975)

Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)

Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990)

Constitutions

U.S. Constitution, Amend. V and XIV

Michigan Constitution, Article I, § 17, Article X, Section § 2 Official Record, Constitutional Convention 1961

Statutes

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.271 to 24.287 (contested cases)

Federal Administrative Procedures Act, §§ 551(6), (7), (13) (definitions)

CHAPTER VI: FORMAL ADJUDICATION AND CONTESTED CASES

Introduction

Chapter 4 of the Michigan Administrative Procedures Act applies only in those settings which are contested cases. A contested case is the equivalent of the type of adjudication known as “formal” in the federal administrative procedural system. The Michigan APA does not create a right to hearing. Rather, it supplies the procedures that must be followed for administrative hearings when evidentiary hearings are required by law.

Generally, the Michigan APA covers three aspects of hearings: (1) prehearing matters, (2) the conduct of the evidentiary portion of hearings, and (3) the decision making process that follows the close of proofs. Underlying statutes and agency rules can add procedural requirements that go beyond those in the APA. The sequence of the particular procedures identified in the contested case chapter does not always follow the chronological sequence of events that occur in the typical agency hearing, so these procedures should be considered and applied within their context in the administrative hearing process. Many cases have discussed particular aspects of the APA contested case hearing procedures, but no case offers an overview of these Chapter 4 procedures.

Applicability of the Michigan Administrative Procedures Act

Statutory Invocation

An underlying statute can explicitly invoke the contested case provisions by identifying the APA by name, by reference to the contested case chapter, or by reference to the citation for the APA. The contested case provisions are often invoked by statute to guide agency decision making even though due process would not require a hearing under the circumstances, such as for many initial licenses. Due to the definition of contested case in the APA, a direct invocation of the contested case provision need not appear in a statute in order to make the contested case chapter applicable. Statutes should be read carefully to insure that the specific APA invoking language in a statute applies to the particular type of decision involved.

Statutory Exemption

The APA itself includes in § 115 specific exemptions from the coverage by the contested case provisions, including, among others, worker’s disability compensation proceedings, some prisoner cases, driver operator’s license cases, unemployment compensation hearings, and some social welfare matters. Also, the APA definition of “agency” excludes coverage for agencies in the legislative and judicial branches, the governor, agencies controlling higher education, the civil service commission, and certain associations of insurers. Specific statutory exemption is also possible. Implied exemption can be based on legislative history, as was at least implied in Hanselman v. Wayne County Concealed Weapons Licensing Board.

Invocation by Definition

When the APA is not directly invoked, definitions in the APA are of paramount importance. The definitions of “agency” and “contested case” are key in determining whether the contested case provisions of the APA apply to particular decision making.

Definition of Agency

Administrative agencies which are “state” agencies are covered by the APA unless exempted. An agency is defined in the Michigan APA as “a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action.” This definition is subject to exclusions.

Three leading Michigan Supreme Court decisions have explored the APA definition of agency. Advisory Opinion re Constitutionality of P.A. 1966, No. 346 distinguished between state and private agencies, requiring an examination of an agency’s characteristics, relations, and functions to determine whether it was an instrumentality of state government. Hanselman v. Wayne County Concealed Weapons Licensing Board applied the Advisory Opinion test to distinguish between state and local agencies, emphasizing that the overall characteristics, relations, and functions must be considered, rather than certain specific attributes. League General Insurance Co. v. Michigan Catastrophic Claims Association stressed that to be a covered agency, it must be both a “state” agency and that it must be created by the constitution, statute, or agency action, holding that mere creation by statute and involvement of state official

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is insufficient to meet a four part test that case be derived from these three cases: (1) Was the agency in question created by the Constitution, statute, or agency action? (2) If so, is it a public rather than a private agency; that is, does it have a public purpose and do public work according to its overall characteristics, meaningful relationships, and manifested functions as they relate to the public purpose? (3) If so, is it a state rather than a local agency; that is, does it evidence dominant and pervasive state control, again referring to its characteristics, relations, and functions? (4) Is it exempt from coverage by the terms of the APA?

Definition of Contested Case

The APA defines a contested case as a “proceeding, including rate making, price fixing, and licensing, in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.” The word “proceeding” is not defined, but must be a determination of legal rights, duties, or privileges. The APA exempts some decisions from coverage through the definition of agency and specific actions identified in § 115.

In Lawrence v. Department of Corrections, the Court of Appeals held that Michigan’s definition of contested case included those situations in which due process requires that a state agency hold a hearing (at least if due process requires some sort of evidentiary hearing). Thus, the scope of a due process hearing by a state agency will be covered by application of Chapter 4 of the APA rather than by the due process in either the balancing or rudimentary scope requirements. This does not happen with federal formal adjudication because the invoking language is “by statute” rather than “by law.” The Legislature reacted to Lawrence by making this situation one of the exemptions to coverage.

Statutory Construction and Applicability in Particular Situations

Whether the contested case provisions apply remains subject to the rules of statutory construction used by Michigan courts in interpreting Michigan statutes. Michigan courts have construed the APA language and underlying statutes to exclude coverage of decisions which are legislative in nature, applications for initial licenses, some rate making proceedings, and numerous other situations.

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Parties and Intervention

The APA defines “person” as “an individual, partnership, association, corporation, governmental subdivision, or public or private organization of any kind other than the agency engaged in the particular processing of a rule, declaratory ruling, or contested case.” “Party” is defined as “a person or agency named, admitted, or properly seeking and entitled of right to be admitted as a party in a contested case.” These definitions and their relationship to standing have received little judicial attention. Four sources identify who a party in a contested case can be: underlying statutes, due process, the APA itself, and agency rules.

The concept of intervention in administrative hearings is closely tied to the definition of party. The APA includes no direct reference to the right to intervene; that right, akin to intervention in judicial proceedings and with aspects of standing as well, must come from interests identified in relevant statutes. A competitor’s standing to intervene in an administrative hearing was recognized in Kassab v. Acho. Situations may exist which require that an agency offer a “comparative” hearing in which competitors for an exclusive or limited benefit or license appear together, according to Huron Valley Hospital, Inc. v. State Health Facilities Commission, a Michigan version of the federal Ashbacker doctrine.

Prehearing Procedures and Powers of Hearing Officers

Notice and Answer

Formality in pleadings is decidedly not an aspect of the administrative hearing process. Although the cases sometimes use confusing terminology, the Michigan APA does not operate on a complaint and answer system. All that due process requires is that a party be given adequate and timely notice of the matter under consideration, which the APA notice provision does. In at least some circumstances, the key is not what is noticed but what is fairly litigated before the agency.

The APA sets no specific minimum or maximum time for notice. Under § 71(2), a notice must contain the date, hour, and place of hearing; a statement of the nature of the hearing; a statement of legal authority; a statement of jurisdiction; a reference to the particular sections of the statutes and rules involved; and short and plain

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statement of the matters asserted. The APA also allows for a rehearing using the same notice requirements.

No method of service is mentioned in the APA, but it is usually done by first class mail in the absence of directions in an underlying statute or applicable procedural rules of the agency or the central hearing system. Answers are permitted but not required, although an agency may require that an answer be filed.

See Michigan Administrative Law, § 6:18, for a general discussion of statutes of limitation, a topic that remains unclear in administrative law. A proposed test can be found at the end of that discussion.

Summary Proceedings

Because the APA uses a notice system rather than formal complaints, summary proceedings are not contemplated in the APA. But § 72(1) allows a hearing to proceed to a decision in the absence of a party who has received notice when the party fails to appear, a practice found to meet due process in Board of Education of Rochester Community Schools v. Michigan State Board of Education and Atkins v. Department of Social Services

Counsel

The APA does not directly provide for a party to have the assistance of counsel, but clearly contemplates that counsel will be present. The custom of allowing counsel is widespread.

Public Hearings

Hearings are open and generally subject to the Open Meetings Act. Both the hearing and deliberation phases of the contested cases must be open, even though the OMA would not seem to apply to the deliberations and decision by an individual hearing officer or to those of an agency headed by a single individual. A statute can permit closure of a hearing in certain circumstances, such as teacher tenure cases and some of those involving patient abuse.

Presiding Officers

In 2005, a Governor’s executive order created a central hearing panel system. This order and its successors did not alter the hearing procedures except regarding the selection and appointment of hearing officers. Some exceptions to this change exist, particularly for the

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constitutionally created agencies and hearings conducted by the Secretary of State. Statutes can exempt other agencies proceeding in particular matters from coverage. Otherwise, the APA still governs, but practitioners should check the administrative rules that now govern central panel administrative hearings.

Under § 79 of the APA, “[a]n agency, [one] or more members of the agency, a person designated by stature or [one] or more hearing officers designated by the agency to handle contested cases, shall be presiding officers in contested cases.” The use of hearing officers was common in APA hearings and would remain so in cases not covered by the central panel system. Occasionally, an agency or one or more members of its governing board would preside and still could. The APA terminology is “presiding officer,” but the title of the presiding officer by agency custom or civil service designation may be “hearing officer” or, as is the case with the centralized system, “administrative law judge.” The title is irrelevant in determining the presiding officer’s powers.

Section 80(1) lists the powers of presiding officers, who can: administer oaths and affirmations, sign and issue subpoenas to compel attendance and to provide documents, or order depositions, regulate the course of the proceedings, issue continuances, order the submission of briefs, direct the parties to appear and to confer to simplify issues, and award costs and fees. Although these powers in some respects are similar to those of a trial court judge, a presiding officer has neither equitable nor contempt powers.

The APA recognizes that agency decisions are “institutional” in nature and that the presiding officer is not likely to be the person or body with the ultimate authority granted by an underlying statute. Under § 79 and due process considerations, according to Crampton v. Department of State, presiding officers, agency heads, and agency members may be disqualified for personal bias and other legally disqualifying grounds. The doctrine of necessity may prohibit a disqualification that would leave no authorized decision maker. A presiding officer can be replaced at any time, absent a showing that it would result in substantial prejudice to a party. Section 82 of the APA prohibits ex parte contacts between a decision maker and a person or party on issues of fact and a party or party representative on issues of law.

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Discovery

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Discovery and prehearing practice are very limited. Subpoenas are available under APA § 73 only if an underlying statute authorizes them. The APA does not mention discovery and few agencies provide for discovery in their rules, although agencies may informally permit considerable access to an agency “file.” Section 74(2) requires an agency to make available reports and statements of witnesses and other records, although the context arguably implies that the access is available only after the witness has testified. Section 72(4) requires that the authors of documents used in evidence be made available for cross examination. Depositions may be used at the discretion of a presiding officer. The Freedom of Information Act may offer some relief from the absence of discovery, but it does not constitute an adequate substitute, because it does not allow the creation of evidence, is not controlled by the presiding officer in a case, and is enforceable only in an independent judicial proceeding.

Hearing Procedures

The Administrative Procedures Act clearly contemplates a relatively informal hearing process and provides only limited and general requirements. With the centralized hearing system in place, however, there are more detailed procedural rules. The APA does not mention either opening or closing statements, but they are commonly allowed. Arguably, § 72(3), which mandates oral argument on issues of law and fact, constitutes authority for opening and closing arguments, if requested.

The APA is surprisingly silent regarding both the burden of proof and the burden of going forward. In the absence of an underlying statute or procedural rule, the common practice is to place the burden on the proponent of the order and to use the preponderance of evidence standard. The order of proofs is often altered to suit the convenience of the parties, especially in hearings that will require several days.

The rules of evidence in contested cases are relaxed, according to § 75: “. . . the rules of evidence as applied in a nonjury civil case in circuit court shall be followed as far as practicable, but an agency may admit and give probative effect to evidence of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.” The same section empowers an agency to prohibit the introduction of irrelevant, immaterial, or unduly repetitious evidence.

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Objections must be stated in the record to be preserved. Section 72(3) allows a party to present evidence and argument on issues of fact, § 72(4) permits cross examination, and § 72(4) permits rebuttal. Section 78 allows for stipulations, including to dispose of a contested case.

A decision must be based on the evidence in the record and on inferences which can be drawn from that evidence. The record may include evidence taken by official notice under § 78, a broader version of judicial notice that recognizes the expertise of agencies in the subject matter at issue. The record may be expanded by the agency on review of a presiding officer’s proposal for decision, but a practitioner should be wary of this practice and be sure that it is done overtly and correctly.

Decision Procedures

The Administrative Procedures Act recognizes that agencies proceed by what is known as institutional decision making. This concept recognizes that although the “head” of an agency makes the ultimate decision, others will participate in the actual conduct of the hearing. The actual hearing participation by the head of an agency will be absent or limited in most situations.

A presiding officer, now usually assigned from outside the agency through the central panel, conducts the prehearing and hearing processes. The hearing is normally followed by a presiding officer’s “proposal for decision,” a form of recommendation which can, in the absence of challenge by the parties, become the final decision in that contested case. Under § 81, the head of an agency can eliminate the proposal for decision process by presiding at the hearing or reading the entire record before making a final decision, both alternatives being uncommon in practice. If a decision is not adverse to a party other than the agency, a proposal for decision is not required, although this, too, is uncommon.

If challenges are forthcoming, the head of the agency retains all the powers that the agency originally had. The agency head is required to make the correction decision and should not defer to the presiding officer. The agency head may take additional evidence, which is not commonly done, and make its own interpretation of the facts presented, but is subject to a somewhat unclear limitation that the agency head must consider the presiding officer’s findings in making its own, particularly on matters involving the credibility of witnesses.

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Section 85 governs the requirements of final decisions, but should be read in conjunction with § 81. Both a proposal for decision and the final decision must contain findings of fact and conclusions of law. The parties are allowed to submit proposed findings and conclusions and to make exceptions to the proposal for decision. Findings of fact cannot be stated in conclusory or statutory terms, but must incorporate sufficient findings of underlying facts, so that the actual facts on which the decision rests are identifiable. Because the APA allows for the introduction of evidence that does not meet the rules of evidence, yet provides that the final decision must rest upon competent, material, and substantial evidence, some confusion has arisen over whether the preponderance of evidence must be constituted of “legally” admissible evidence this requirement is known as the “legal residuum” rule in general administrative law parlance. The better view is that it need not.

Final decisions are shaped by the scope of judicial review to some extent judicial review being available only after the decision making process in an agency is completed. That review is usually limited to the record made before the agency. Review of agency contested cases is not de novo, and incorporates concepts of judicial deference and the allocation of resources. Generally, courts do not make an independent assessment of the facts in agency records, but instead determine if the factual conclusions of an agency are reasonable in light of the whole evidence in the agency record.

Twenty Steps in Successful Contested Case Analysis

This list is taken from Michigan Administrative Law, §§ 6:91 and 6:92. The list is written in the context of representing a client involved with an agency action, but works with little adjustment if representing an agency.

1. Determine if the APA contested case provisions apply by checking the underlying statute and whether due process requires an evidentiary hearing.

2. Check for specific exclusions in the statute and the APA, which exempts certain agencies from the contested case provisions.

3. If the underlying statute is silent regarding the applicability of the APA, determine if the action involves a state agency per the APA definition of “agency.”

4. If a state agency is involved, determine if the APA “contested case” definition is satisfied.

5. If a state agency is involved and an evidentiary hearing is required by statute or due process, the definition is satisfied and the contested case procedures apply. Then, review the administrative rules that apply.

6. Make sure that the person involved fits the APA definitions of “person” and “party.”

7. Review the notice of hearing to determine the nature of the subject matter involved and the action sought to be taken, comparing that to the language of the underlying statute.

8. Be aware that an answer need not be filed, but consider filing one to help narrow the issues where advantageous.

9. File an appearance to ensure receipt of all correspondence and to control contact between the agency and the party.

10. Appear at the scheduled hearing, because an agency can proceed in the absence of a party given proper notice.

11. Consider the prehearing provisions of the APA, and ask for a prehearing conference if none is available.

12. Find out if the agency has procedural rules beyond the APA basics, as well as checking the central panel hearing rules.

13. Obtain the information which the agency must make available in the hearing process under the APA, and consider the possible use of a Freedom of Information request.

14. Determine which party has the burden of proof and the burden of going forward.

15. Attempt to narrow the issues through stipulations of fact or law.

16. Determine the agency’s evidentiary practices, as well as those established in the central panel rules.

17. Review the APA hearing and decision making procedures in the central panel rules.

18. Become generally familiar with the particular agency’s decision-making process.

19. Attempt to structure the record in light of the nature of the agency decision process.

20. Be familiar with the judicial review of contested case decisions, particularly that the judicial review will be limited to the record made before the agency.

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Sources

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 6 (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Advisory Opinion re Constitutionality of P.A. 1966, No. 346, 380 Mich. 554, 158 N.W.2d 416 (1968)

Ansell v. Department of Commerce, 222 Mich. App. 347, 564 N.W.2d 1997 (on remand)

Aquilina v. General Motors Corp., 403 Mich. 206, 267 N.W.2d 923 (1978)

Ashbacker Radio Corp. v. Federal Communications Commission, 326 U.S. 327, 66 S. Ct. 148, 90 L. Ed. 108 (1945)

Atkins v. Department of Social Services, 92 Mich. App. 313, 284 N.W.2d 794 (1979)

Black v. Department of Social Services, 195 Mich. App. 27, 489 N.W.2d 983 (1992)

Bunce v. Secretary of State, 239 Mich. App. 204, 607 N.W.2d 372 (1999)

Champion’s Auto Ferry v. Public Service Commission, 231 Mich. App. 699, 588 N.W.2d 153 (1998)

Crampton v. Secretary of State, 395 Mich. 347, 235 N.W.2d 352 (1975)

In re Del Rio, 400 Mich. 665, 256 N.W.2d 727 (1977)

Department of Community Health v. Risch, 274 Mich. App. 365, 733 N.W.2d 403 (2007)

Ghidotti v. Barber, 459 Mich. 189, 586 N.W.2d 883 (1998)

Grievance Administrator v. August, 438 Mich. 296, 475 N.W.2d 256 (1941)

Hanselman v. Wayne County Concealed Weapons Licensing Board, 419 Mich. 168, 351 N.W.2d 544 (1984)

Henderson v. Memphis Community School District, 57 Mich. App. 770, 226 N.W.2d 725 (1975)

Huron Valley Hospital, Inc. v. State Health Facilities Commission, 110 Mich. App. 236, 312 N.W.2d 422 (1981)

Kassab v. Acho, 125 Mich. App. 442, 336 N.W.2d 816 (1983)

Lawrence v. Department of Corrections, 88 Mich. App. 167, 276 N.W.2d 554 (1979)

League General Insurance Co. v. Michigan Catastrophic Claims Association, 435 Mich. 338, 458 N.W.632 (1990)

Manuel v. Gill, 481 Mich. 637, 753 N.W.2d 48 (2008)

Maxwell v. Department of Environmental Quality, 264 Mich. App. 567, 692 N.W.2d 68 (2004)

McBride v. Pontiac School District, 218 Mich. App. 113, 553 N.W.2d 646 (1996) (on remand0

Michigan Canners and Freezers Association v. Agricultural Marketing and Bargaining Board, 416 Mich. 706, 332 N.W.2d 134 (1982), rev’d on other grounds, 467 U.S. 461 (1984)

Midland Township v. State Boundary Commission, 401 Mich. 641, 259 N.W.2d 326 (1977)

Northwood Apartments v. City of Royal Oak, 98 Mich App. 721, 296 N.W.2d 639 (1980)

Professional Plaza, LLC v. City of Detroit, 250 Mich. App. 473, 647 N.W.2d 529 (2002)

In re Public Service Commission for Transactions Between Affiliates, 252 Mich. App. 254, 652 N.W.2d 1 (2002)

Rehabilitation Center, Inc. v. Blue Cross & Blue Shield of Michigan, 93 Mich. App. 357, 287 N.W.2d 236 (1979)

Retirement Homes of Detroit Annual Conference of United Methodist Church, Inc. v. Sylvan Township, 92 Mich. App. 560, 285 N.W.2d 375 (1979), rev’d on other grounds, 416 Mich. 340, 330 N.W.2d 682 (1982)

Rochester Community Schools Board of Education v. State Board of Education, 104 Mich. App. 569, 305 N.W.2d 541 (1981)

Scullion v. State Board of Law Examiners, 102 Mich. App. 711, 302 N.W.2d 290 (1981)

In re Sprint Communications Co., L.P., Complaint, 234 Mich. App. 22, 592 N.W.2d 825 (1999)

Stokes v. Chrysler, LLC, 481 Mich. 266, 750 N.W.2d 129 (2008)

13 Southfield Associates v. Department of Public Health, 82 Mich. App. 678, 267 N.W.2d 483 (1978)

Tomczik v. State Tenure Commission,175 Mich. App. 495, 438 N.W.2d 642 (1989)

Vomvolakis v. Department of Treasury, 145 Mich. App. 238, 377 N.W.2d 309 (1985)

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W. A. Foote Memorial Hospital v. City of Jackson, 262 Mich. App. 333, 686 N.W.2d 9 (2004)

White v. Revere Copper & Brass, Inc., 383 Mich. 457, 175 N.W.2d 774 (1970)

Wolverine Power Cooperative v. Department of Environmental Quality, 285 Mich. App. 548, 777 N.W.2d 1 (2009)

Constitutions

U.S. Constitution, Amend. V and XIV

Michigan Constitution, Article I, § 17

Statutes

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.203 and 24.322 (definitions)

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.271 to 24.287 (contested cases)

Federal Administrative Procedures Act, §§ 551(6), (7), (13) (definitions)

Executive Orders and Agency Rules

Executive Order 2005 1

Executive Order 2005 26

Executive Order 2019 06

Executive Order 2019-13 R. 792.10101 et seq.

CHAPTER VII: LICENSING

Introduction

The governmental function which best embodies the modern concept of administrative law is licensing. Individuals are most often directly affected by licensing among all the forms of government activity, other than taxation. Although licensing is performed by federal and local administrative bodies, state agencies are the most frequent licensors of public activity.

Legislatures often turn to licensing when they believe that certain standards of practice or performance are needed to protect the public. Licensing can be a form of limiting competition, so those engaged in particular occupations, professions, or activities often seek to secure licensing of the field sometimes even hoping to raise qualifications for newcomers, while exempting current practitioners from the new requirements. While licensing has its own unique characteristics, it is controlled by the general principles of administrative and constitutional law.

Nature, Authority, and Constitutionality

Substantive due process consideration applies to licensing, both in regard to the subject matter covered and the means authorized in a statute to exercise that power. As stated in Gora v. City of Ferndale, an “individual’s right to engage in business is subject to the state’s authority, pursuant to its historic police powers, to enact laws protecting the public health, safety, welfare, and morals. Licensing is the most active form of implementing the police power of the state the power to regulate public health, safety, welfare, and morals a concept which the Supreme Court of Michigan characterized as “incapable of being defined and subjected to limitations in the abstract” in G. F. Redmond & Co. v. Michigan Securities Commission.

Licensing, particularly revocation of a license, is not an exercise of true judicial power and has legislative roots. Today, it is considered to be an exercise of executive power. That power is provided to agencies through legislative delegation in a statute which must have adequate standards, according to Department of Natural Resources v. Seaman. Analysis for adequate statutory standards can have both substantive due process and separation of powers aspects, but the focus is usually on whether a statute has improperly delegated

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legislative power to an executive branch entity a separation of powers consideration. Procedural due process comes into play when the statute is applied, as when a license is revoked.

Definitions

The Michigan Administrative Procedures Act defines both license and licensing. According to Section 5(1): “ ‘License’ includes the whole or a part if an agency permit, certificate, approval, registration, charter, or similar form of permission required by law, but does not include a license required solely for revenue purposes, or a license or registration issued under [the Motor Vehicle Code].”

Section 5(2) defines licensing: “ ‘Licensing’ includes agency activity involving the grant, denial, renewal, suspension, revocation, annulment, withdrawal, recall, cancellation, or amendment of a license.” These definitions and the related APA provisions apply only to licensing activities of state agencies.

As is the case with other concepts, the label placed (or not placed) on an activity can be inaccurate. A determination that something is or is not a license may itself be the focus of a controversy (see Westland Convalescent Center v Blue Cross & Blue Shield of Michigan) or the determination that something is a license may affect the procedures relevant to an agency decision. Courts, not just agencies, on occasion may fail to recognize the proper label. A franchise, defined as a “right . . . granted for a consideration,” is not a license, according to Arnold Transit Co. v. City of Mackinac Island.

Not all activity affecting a license is licensing. Statutes and rules often affect licenses without the application of procedures which would be available in licensing. The distinction is similar to that which distinguishes legislative from adjudicative action in due process analysis.

Licensing Procedures

Right to Hearing

A frequent issue is whether a licensing decision must be made on the basis of some sort of agency hearing. As the cases demonstrate, the answer depends on the relevant underlying statute and due process analysis. Many of the leading cases have involved licenses and the issue of whether there was a need for a hearing, as was the focus in Bundo v. City of Walled Lake.

ADMINISTRATIVE LAW PRIMER

Because due process does not provide a right to hearing in the absence of an entitlement, initial licensing does not include a right to hearing unless an underlying statute provides for one, as shown in 13 Southfield Associates v. Department of Public Health. The procedures in the absence of a hearing are established by whatever other requirements there may be an underlying statute, agency procedural rules, and agency practices and customs. The APA is not an independent source for a hearing, according to Kelly Downs, Inc. v. Racing Commission, but in many instances underlying statutes make initial licensing by state agencies subject to the contested case requirements of the APA.

Actions by state agencies to revoke, suspend, or restrict licenses, as well as the refusal to renew an existing license, are covered by the contested case provisions of the APA. Even if an underlying statute does not provide for a hearing, these actions will constitute a deprivation of a due process protected property interest requiring a contested case hearing, according to Lawrence v. Department of Corrections (assuming that due process balancing calls for an evidentiary hearing). The same will not be true of local licensing actions, which will be governed by due process considerations and requirements in local agency statutes, ordinances, and rules, not by the APA.

Licenses usually have an expiration date, but the APA makes that date flexible. Section 91(2) provides that upon a timely renewal application the expiration date is extended to the date on which the decision on the renewal application is made and that if the renewal is denied, it is further extended until the time for seeking judicial review expires.

Compliance Procedure Rights

One aspect of licensing that is often misunderstood is that the overriding purpose of regulation is to assure that minimum standards of performance are met. Licensing procedures are only secondarily related to punishment, although various sanctions are nearly always incorporated into licensing statutes and are considered a valid exercise of governmental police power.

The aim in the routine case is to assure continued attainment of at least minimal performance, not to revoke the license or to punish the offender. Accordingly, the APA in Section 92 provides a relatively informal compliance process which normally precedes hearings and the imposition of sanctions: “[b]efore the commencement of

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proceedings for suspension, revocation, annulment, withdrawal, recall, cancellation, or amendment of a license, an agency shall give notice . . . to the licensee of facts or conduct which warrant the intended action.” Then this section provides that “[t]he licensee shall be given an opportunity to show compliance with all lawful requirements for retention of the license.” This allows an offending licensee to correct conditions, practices, or mistakes which might otherwise be the basis for suspension or revocation. While the process contemplated is informal, it retains sufficient formality that licensees are aware that the normal give and take and negotiation regarding whether the licensee is meeting the terms of the license, as well as meeting the related conditions and rules, are at an end.

Michigan case law has elaborated on the requirements of the APA compliance process, dividing it into distinct compliance and hearing segments. Rogers v. Board of Cosmetology held that the APA included a four step system in license revocation proceedings, which can be summarized as: “(1) Personal or written notice to the licensee, stating facts or conduct that constitute violations or warrant any intended action; (2) Informal opportunity to show compliance with licensing requirements; (3) In the absence of compliance, notice of hearing satisfying APA Section 71; and (4) Contested case hearing.”

The compliance procedure is not required when the conduct demonstrates willful disregard of the requirements and conditions of licensing, or if future compliance would not adequately reflect severity or nature of the past violation. Nor is the compliance opportunity required in emergency situations that justify immediate suspension of a license to protect the public. In such situations, the license can be summarily suspended and a hearing must follow promptly. The better view is that the compliance process should be available in renewal settings.

Fifteen Steps to Successful Licensing Analysis

1. Determine if a license and licensing by definition are involved does the activity in question include any form of permission required by law and does the agency action involve an application for, denial of, renewal of or revocation or suspension of a license.

2. Review the underlying statute to determine whether the agency has licensing power and, if so, what limitations and requirements are imposed on the agency in the application of that power.

3. Analyze the statute to identify the requirements imposed on the applicant for a license and on licensees who receive one.

4. Assuming a license is involved, review the terms and conditions of the license and the nature of the agency’s action in regard to the license.

5. Consider the police power involved, substantive due process requirements, and separation of powers implications of the statutory scheme.

6. Check the underlying statute and the agency rules to determine if either requires a hearing as part of the licensing process, even if the application is for an initial license.

7. If the statute (or a rule) does not call for a hearing and the application is for an initial license, recognize that there is no right to a hearing under due process, since there is no property interest in an initial license.

8. Where there is no right to hearing, determine the controlling procedures in an application for an initial license by referring to the underlying statute and the agency’s procedural rules, if any.

9. Conclude whether the agency action involves either renewal of a license or a significant restriction on an existing license; then consider whether due process would invoke the APA contested case provisions, if the underlying statute does not invoke APA contested case coverage. If the contested case provisions apply, see the steps recommended in Chapter 6.

10. Confirm that the license is still valid.

11. Check to see if the compliance opportunity provisions of the APA were or will be met.

12. Examine the nature of the conduct in question, or the conditions alleged to exist, which assertedly violate the terms of the license.

13. Review the basis used to justify an emergency suspension of a license.

14. Compare the penalty or sanction imposed or proposed by the agency with its authority in the underlying statute.

15. Consider the use of a stay or injunction during judicial review of an agency action regarding an existing license.

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Sources

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 7 (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Bienenfeld, Michigan Administrative Law (Ann Arbor: Institute of Continuing Legal Education)

Cases

Arnold Trans Co. v. City of Mackinac Island, 99 Mich. App. 266, 297 N.W.2d 904 (1980)

Belanger & Sons, Inc. v. Department of State, 176 Mich. App. 59, 438 N.W.2d 885 (1989)

Berlin & Farro Liquid Incineration, Inc. v. Michigan Department of Natural Resources, 80 Mich. App. 490, 264 N.W.2d 37 (1978)

Bessinger v. Department of Corrections, 142 Mich. App. 793, 371 N.W.2d 868 (1985)

Bio Tech, Inc. v. Department of Natural Resources, 235 Mich. App. 77, 596 N.W.2d 633 (1999)

Bois Blanc Island Township. V. Natural Resources Commission, 158 Mich. App. 239, 404 N.W.2d 719 (1987)

Borman’s, Inc. v. Liquor Control Commission, 37 Mich. App. 738195 N.W.2d 316 (1972)

Bundo v. City of Walled Lake, 395 Mich. 679, 238 N.W.2d 154 (1976)

Calvert v. Lapeer Circuit Judges, 442 Mich. 409, 502 N.W.2d 293 (1993)

Cameron v. Secretary of State, 63 Mich. App. 753, 235 N.W.2d 38 (1975)

City of Detroit v. Mashlakjian, 15 Mich. App. 236, 166 N.W.2d 493 (1968)

City of Livonia v. Department of Social Services, 423 Mich. 466, 378 N.W.2d 402 (1985)

Consumer & Industry Services v. Greenberg, 231 Mich. App. 466, 586 N.W.2d 560 (1998)

DeHart v. Board of Podiatry, 97 Mich. App. 307, 293 N.W.2d 806 (1980)

Delly v. Bureau of State Lottery, 183 Mich. App. 258, 454 N.W.2d 141 (1990)

Department of Natural Resources v. Seaman, 396 Mich. 299, 240 N.W.2d 206 (1976)

Downriver Nursing Associates v. Department of Public Health, 193 Mich. App. 594, 484 N.W.2d 748 (1982)

Epps v. 4 Quarters Restoration LLC, 498 Mich. 518, 872 N.W.2d 412 (2015)

G.F. Redmond & Co. v. Michigan Securities Commission, 222 Mich. 1, 192 N.W. 688 (1923)

Gargagliano v. Secretary of State, 62 Mich. App. 1, 233 N.W.2d 159 (1975)

Gonzalez v. Freeman, 334 F.2d 570 (D.C. Cir. 1964)

Gora v. City of Ferndale, 456 Mich. 704, 576 N.W.2d 141 (1998)

Hanson v. Michigan State Board of Registration in Medicine, 253 Mich 601, 236 N.W.2d 225 (1931)

Harkins v. Department of Natural Resources, 206 Mich. App. 317, 520 N.W.2d 653 (1994)

Heckler v. Day, 467 U.S. 104, 104 S. Ct. 2249, 81 L. Ed. 2d 88 (1984)

Kassab v. Acho, 125 Mich. App. 442, 336 N.W.2d 816 (1983)

Kelly v. Liquor Control Commission, 131 Mich. App. 600, 345 N.W.2d 697 (1993)

Kelly Downs, Inc. v. Racing Commission, 60 Mich. App. 539, 213 N.W.2d 443 (1975)

Kennedy v. State Board of Registration in Medicine, 145 Mich. 241, 108 N.W. 730 (1906)

Krohn v. Michigan Board of Medicine, 98 Mich. App. 129, 296 N.W.2d 57 (1980)

Lawrence v. Department of Corrections, 88 Mich. App. 167, 276 N.W.2d 554 (1979)

M & S, Inc. v. Attorney General, 165 Mich. App. 301, 418 N.W.2d 441 (1987)

Marrs v. Board of Medicine, 422 Mich. 688, 375 N.W.2d 321 (1985)

Matter of Grimes, 414 Mich. 483, 326 N.W.2d 380 (1982)

Michigan Intra State Motor Tariff Bureau, Inc. v. Public Service Commission, 200 Mich. App. 381, 504 N.W.2d 677 (1993)

Nelles v. Bartlett, 5 Mich. App. 47, 145 N.W.2d 795 (1966)

Nicholas v. Secretary of State, 74 Mich. App. 64, 253 N.W.2d 662 (1977)

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Northwestern National Casualty Co. v. Insurance Commissioner, 231 Mich. App. 483, 586 N.W.2d 563 (1998)

People v. Keeth, 193 Mich. App. 555, 484 N.W.2d 761 (1992)

Pontiac Food Center v. Department of Community Health, 282 Mich. App. 331, 766 N.W.2d 42 (2008)

Prawdzik v. City of Grand Rapids, 313 Mich. 376, 21 N.W.2d 168 (1946)

Richardson v. Jackson County, 432 Mich. 377, 443 N.W.2d 105 (1989)

Rogers v. Board of Cosmetology, 68 Mich. App. 751, 244 N.W.2d 20 (1976)

Rogers v. Board of Education, Trenton Public Schools, 61 Mich. App. 682, 233 N.W.2d 141 (1975)

Ron’s Last Chance, Inc. v. Liquor Control Commission, 124 Mich. App. 179, 333 N.W.2d 502 (1983)

Roseland Inn, Inc. v. McClain, 118 Mich. App. 724, 325 N.W.2d 551 (1982)

Rucker v. Michigan Board of Medicine, 138 Mich. App. 209, 360 N.W.2d 154 (1984)

State Board of Dentistry v. Blumer, 78 Mich. App. 679, 261 N.W.2d 186 (1977)

State Employees Association v. Department of Mental Health, 421 Mich. 152, 365 N.W.2d 93 (1984)

Tally v. City of Detroit, 54 Mich. App. 328, 220 N.W.2d 778 (1974)

T. D. N. Enterprises, Inc. v. Michigan Liquor Control Commission, 90 Mich. App. 437, 280 N.W.2d 622 (1979)

13 Southfield Associates v. Department of Public Health, 82 Mich. App. 678, 267 N.W.2d 483 (1978)

Triantafillou v. Michigan Liquor Control Commission, 322 Mich. 670, 34 N.W.2d 471 (1948)

Walen v. Department of Corrections, 443 Mich. 240, 505 N.W.2d 519 (1993)

Weber v. Orion Township, 136 Mich. App. 689, 358 N.W.2d 576 (1984)

Westland Convalescent Center v. Blue Cross & Blue Shield of Michigan, 414 Mich. 247, 324 N.W.2d 851 (1982)

Wozniak v. State Board of Examiners in Optometry, 23 Mich. App. 630, 179 N.W.2d 210 (1970)

Constitutions

U.S. Constitution, Amend. V and XIV

ADMINISTRATIVE LAW PRIMER

Michigan Constitution, Article I, § 17

Statutes

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.205(a) and (b) (definitions)

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.271 to 24.287 (contested cases)

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.291 and 24.292 (licensing procedure)

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CHAPTER VIII: METHODS AND COURT OF JUDICIAL REVIEW OF AGENCY ACTION

Introduction

[Special thanks to student Marco Menezes (now retired Judge Menezes), who undertook the original research which forms the basis for a portion of this discussion.]

This chapter focuses on how and where judicial review of agency action can be obtained. Judicial review methods or forms of action answer the question of “how” a person subject to or threatened by agency action selects a judicial vehicle to review that action. The focus is on identifying the appropriate procedures to invoke judicial review. The “where” question is essentially jurisdictional in what court can or must judicial review take place; the forum of review is directly tied to the method of review and the underlying statute controlling the agency action. Scope of review provisions answer the question of “how much” a court will review an agency action; that is, how far will a reviewing court go in substituting its judgement for that of an agency. The scope of judicial review, discussed in the next chapter, is largely determined by the underlying statutes and the method or review, but constitutional considerations also apply.

Four additional judicial review doctrines, with jurisprudential and constitutional underpinnings, shape the availability of judicial review of agency action. “Who” questions are essentially those involving standing or who among those persons possibly desiring to seek judicial review of agency action is empowered to do so. “When” questions relate to the timing of judicial review in relation to the agency action and are addressed by the doctrines of ripeness, finality, and exhaustion of administrative remedies. “What” questions consider which outcomes and embodiments of action undertaken by an agency are subject to judicial review and include the doctrines of finality and exhaustion of administrative remedies. A second “where” question considers whether a court or an agency should initially decide certain types of cases a complex issue called the doctrine of primary jurisdiction.

ADMINISTRATIVE LAW PRIMER

Sources of Judicial Review Methods

The method of review is determined by consideration of several alternatives:

1. Through the underlying statute which authorized an agency action (or which created an agency; or

2. Under Chapter Six of the Michigan Administrative Procedures Act; or

3. Via Section 631 of the Revised Judicature Act; or

4. By actions for declaratory relief under Sections 63 and 64 of the APA; or

5. Pursuant to an array of other provisions under the RJA and the Michigan Court Rules [in general these item (5) methods are referred to by the author as “non statutory” to differentiate them from review under an underlying statute’s judicial review provisions].

The starting place for analysis is to determine the nature of the action undertaken by a state or local administrative agency for which review is sought, then to consider the underlying statute. If the statute is silent if it does not address the matter of judicial review of action it authorizes the APA or the RJA may provide the method. If these alternatives are not applicable, the non statutory methods may apply. Assuming that authority to proceed in court is found among these choices, the procedural provisions of the Michigan Court Rules must be followed.

Constitutional Right to Judicial Review

Two major provisions in the Michigan Constitution seem to guarantee a right to judicial review of certain types of agency action, but apparently do not. Article VI, section 28, which provides for judicial review of judicial or quasi judicial decisions of state and local administrative agencies, requires statutory implementation because it was found not to be self executing in Viculin v Department of Civil Service. Thus, while it did not provide a method of review, it supplied the minimum scope of review to be applied when a method of review was found. The subsequent decision of the Supreme Court in Midland Cogeneration Venture Ltd. Partnership v. Naftaly undermined the clarity of Viculin, at least to some extent.

Article VI, section 13 gives the circuit courts superintending control over inferior tribunals, which includes administrative

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tribunals. Whether this section is self executing remains an open question, but Villa v. Fraser Civil Service Commission arguably could be read to say that it is.

Statutory Methods of Judicial Review

Underlying Statutes

The underlying statute which authorizes an agency to act is the primary source of judicial review of a particular agency action. When an underlying statute provides for judicial review, it must be followed regarding its timing, method, court, and (to some extent) scope of review provisions. In some instances, another statute related to a particular agency may contain general review provisions broadly applicable to actions undertaken by that agency. Or a comprehensive statutory code may contain a review provision elsewhere in that code which applies to actions taken under a different code provision.

In the absence of controlling language in an underlying statute, two other statutes are important.

Revised Judicature Act

A generic statutory method of review is found in section 631 of the Revised Judicature Act. This method applies to final decisions, orders, or opinions of state not local agencies where review is not provided by law. This provision allows review of informal adjudication by many state agencies, although strangely does not apply to state agencies lacking rulemaking power. The method of judicial review in section 631 of the RJA is an appeal. Jurisdiction is in the circuit court and venue in the appellant’s place of residence (but not place of business) or in Ingham County. The appeal must be filed within 21 days of the agency action. Because the RJA does not mention scope of review, the “how much” question is answered by the Constitution’s Article VI, Section 28, according to Viculin.

Administrative Procedures Act

The Administrative Procedures Act discusses two vehicles for judicial review.

1. If the decision of an agency to be challenged was made in a contested case proceeding, the method of judicial review under section 102 of the APA in the absence or inadequacy

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of an underlying statutory provision is a petition for review in the circuit court. Venue is in the place of residence or business of the petitioner or in Ingham county. The petition must be filed within 60 days of the notice of the decision. The scope of judicial review is determined by the factors listed in the APA itself and by Article VI, section 28 of the Constitution.

2. Under section 63 of the APA, agencies may issue declaratory rulings to determine the applicability “to an actual state of facts of a statute” or rule order of the agency. Declaratory rulings issued by agencies are reviewed judicially as if they were decisions in contested cases.

According to section 64 of the APA, declaratory judgments regarding the validity or applicability of a rule under made may be obtained in circuit court. Venue is the same as for petitions for review of a decision in a contested case. This section includes an exhaustion requirement (See section 63) which applies only to challenges regarding the applicability of a rule. Exhaustion is not required if the challenge is to the validity or applicability of a statute or of an order of the agency.

Challenges of the applicability of validity of rules can await agency enforcement of the rule by an agency; the affected party is not mandated to take the initiative. An agency is not mandated to provide a declaratory ruling; despite the holding to the contrary in Human Rights Party v. Michigan Corrections Commission an agency’s failure to provide a ruling does not create a duty to offer a contested case hearing. Section 64 is nothing more than an exhaustion of administrative remedies provision regarding the applicability of a rule; the judicial review available in all other respects is an action for declaratory judgment outside the APA.

Non Statutory Judicial Review

For ease of characterization certain methods of review are described as non statutory, although the method actually may be provided by a statute. In one sense this means that the review method is not included in the relevant underlying statute; that is, in the statute which authorized the agency to act. In another sense, the reference is historical it refers to methods or review which evolved from common law writs or from court rules, although they may today have a statutory form. In large part, these methods of review are governed

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by the Michigan Court Rules. Availability of another adequate remedy, which is very often found in an underlying statute, normally precludes the use of all non statutory remedies except declaratory judgment and habeas corpus.

Declaratory Relief

Judicial declaratory relief may be sought outside the context of the APA per Michigan Court Rule 2.605. This device, often used in pre enforcement settings to challenge agency rules and to halt threatened administrative agency action, is generously provided under Michigan law. Although an actual controversy must exist, harm to the party seeking relief may be entirely prospective, according to Shavers v. Attorney General.

Injunction

Injunctive relief may be sought per Michigan Court Rule 3.310. Injunctions are often sought in conjunction with requests for declaratory relief, usually with the purpose to prevent an agency from acting against the person seeking relief until a legal controversy regarding the threatened action is settled. In this context the injunctive relief sought is preliminary. As articulated in Michigan State Employees Association v. Department of Mental Health, the test for issuance of a preliminary injunction balances:

1. The possible harm to the public interest if the injunction issues’

2. Whether the possible harm to the plaintiff if no injunction issues outweigh the harm to the opposing party if an injunction is granted;

3. The likelihood that the plaintiff will prevail on the merits; and

4. Whether the prospective harm to the plaintiff will be irreparable if no injunction issues.

Superintending Control

Superintending control under Michigan Court Rule 3.302 implements the circuit court’s jurisdiction to supervise inferior tribunals when those tribunals have a clear legal duty to act regarding the party seeking relief. “Administrative agencies acting in a . . . quasi judicial capacity are inferior tribunals,” according to Fort v. City of Detroit. Arguably, the scope of review when a circuit court exercises this power would be governed by Article VI, Section 28 of

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the Michigan Constitution. But there is a good argument that the standard should be that which governed the review action of the court from which superintending control took control.

Mandamus

Mandamus can be issued by a circuit court to require a public official to perform a clear legal duty owed to a person with a clear legal right to its performance. This method is not available if the action challenged was judicial in nature, both because superintending control may be the appropriate vehicle or because discretion is involved. A duty to make a decision may exist, even though there is no duty to render a particular outcome.

Certiorari

Certiorari requires that a lower court provide the record of a proceeding before it for consideration by a higher court. Because of the provision for superintending control, certiorari is rarely used today.

Habeas Corpus

Under Michigan Court Rule 3.303 habeas corpus is used to challenge the wrongful detention of a person. Although not commonly invoked regarding administrative agency decisions, it can sometimes be used in cases involving the administrative decisions of the Department of Corrections regarding prisoners.

Ten Steps to Successful Identification of Court and Method

1. Determine the nature of the administrative agency action to be challenged through judicial review, whether that action has taken place or will take place in the future

2. Review the underlying statute related to the challenged action to determine if it contains provisions regarding judicial review. If so, those provisions must be followed.

3. Check any general authorizing statute for the agency to determine if it contains judicial review provisions. If so, those provisions must be followed.

4. If a state agency took action under the contested case provisions of the Administrative Procedures Act, and there is no specific review provision in the underlying statute,

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Chapter 6 of the APA makes the method a petition for review filed in a circuit court.

5. If a state agency with rulemaking authority is involved, there is no judicial review provision in the underlying statute, and the action was not the result of a contested case, judicial review by appeal to a circuit court is available under Section 631 of the Revised Judicature Act.

6. If the object of review is the applicability of a rule promulgated by a state agency, the challenger must first present a request for a declaratory ruling to the state agency. The challenger may also request a declaratory ruling regarding the applicability of a statute or a previous order of the agency. If granted, a declaratory ruling may be reviewed as if it were a decision in a contested case. If denied, the challenger may seek a declaratory judgment in court.

7. If a person seeks to resolve a legal controversy before complying with an agency’s enforcement of its power, a declaratory judgment under Michigan Court Rule 2.605 can be sought subject to the requirement to file a request for a declaratory ruling with the agency if the controversy involves the applicability of a rule.

8. If a person seeks to restrain threatened agency action, an action for an injunction under Michigan Court Rule 3.310 can be filed, often in conjunction with an action for a declaratory judgment.

9. If the underlying statute, the APA, the RJA, and declaratory and injunctive relief are not applicable, the challenger should consider using the extraordinary forms of review superintending control, mandamus, certiorari, and habeas corpus as set forth in the court rules and the RJA.

10. Once the method of judicial review is selected, the challenger should consult the court rules to determine the particular procedures to be followed and to determine the appropriate judicial jurisdiction and venue.

Sources

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 8 (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer,

T.M. Cooley Law Review, Volume 12:21 (1995)

25 Michigan Law Revision Commission Annual Report (1990) Bienenfeld, Michigan Administrative Law (Ann Arbor: Institute of Continuing Legal Education)

Cases

Arthur Land Co. LLC v. Otsego County, 249 Mich. App. 650, 645 N.W.2d 50 (2002)

Blue Cross & Blue Shield of Michigan v. Commissioner of Insurance, 155 Mich. App. 723, 400 N.W.2d 638 (1986)

Carleton Sportsman’s Club v. Exeter Township, 217 Mich. App. 195, 550 N.W.2d 867 (1996)

Dabrowski v. Secretary of State, 201 Mich. App. 218, 506 N.W.2d 10 (1993)

Davenport v. City of Grosse Pointe Farms Board of Zoning Appeals, 210 Mich. App. 400, 534 N.W.2d 143 (1995)

Davis v. Department of Corrections, 251 Mich. App. 372, 651 N.W.2d 486 (2002)

Department of Consumer Industry Services v. Shah, 236 Mich. App. 381, 600 N.W.2d 406 (1999)

Eckstein v. Kuhn, 160 Mich. App. 240, 408 N.W.2d 131 (1987)

Fort v. City of Detroit, 146 Mich. App. 499, 381 N.W.2d 754 (1985)

General Electric Credit Corp. v. Northcoast Marine, Inc., 402 Mich. 297, 262 N.W.2d 660 (1978)

Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988)

Human Rights Party v. Michigan Corrections Commission, 76 Mich. App. 204, 256 N.W.2d 439 (1977)

Insurance Institute of Michigan v. Commissioner, Financial & Insurance Services, Department of Labor & Economic Growth, 280 Mich. App. 333, 761 N.W.2d 184 (2008)

J & P Market, Inc. v. Liquor Control Commission, 199 Mich. App. 646, 502 N.W.2d 374 (1993)

Jackson v. Director of Department of Corrections, 329 Mich. App. 422, 942 N.W.2d 645 (2019)

In re Parole of Johnson, 235 Mich. App. 21, 596 N.W.2d 202 (1999)

Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974)

Katt v. Insurance Bureau, 200 Mich. App. 648, 505 N.W.2d 37 (1993)

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Keenan v. Department of Corrections, 250 Mich. App. 628, 649 N.W.2d 133 (2002)

In re Complaint of Knox, 255 Mich. App. 454, 660 N.W.2d 777 (2003)

Lawrence v. Department of Corrections, 88 Mich. App. 167, 276 N.W.2d 554 (1979)

Living Alternatives for Developmentally Disabled, Inc. v. Department of Mental Health, 207 Mich. App. 482, 525 N.W.2d 466 (1994)

Lowell R. Fisher, D.O. v. W.A. Foote Memorial Hospital, 261 Mich. App. 727, 683 N.W.2d 248 (2004)

M & S, Inc. v. Attorney General, 165 Mich. App. 301, 418 N.W.2d 441 (1987)

Martin v. Stine, 214 Mich. App. 403, 542 N.W.2d 884 (1995)

Michigan Bear Hunters Association v. Michigan Natural Resources Commission, 277 Mich. App. 512, 746 N.W.2d 320 (2007)

Michigan Intra State Motor Tariff Bureau, Inc. v. Public Service Commission, 200 Mich. App. 381, 504 NW.2d 677 (1993)

Michigan State Employees Association v. Department of Mental Health, 421 Mich. 152, 365 N.W.2d 93 (1984)

Michigan Waste Systems v. Department of Natural Resources, 147 Mich. App. 729, 383 N.W.2d 112 (1985)

Midland Cogeneration Venture Ltd. Partnership v. Naftaly, 489 Mich. 83, 803 N.W.2d 674 (2011)

Midwest Energy Co op. v. Michigan Public Service Commission, 268 Mich. App. 521, 708 N.W.2d 147 (2005)

Morales v. Michigan Parole Board, 260 Mich. App. 29, 676 N.W.2d 221 (2003)

Northwestern National Casualty Co. v. Insurance Commissioner, 231 Mich. App. 483, 586 N.W.2d 563 (1998)

O’Connell v. Director of Elections, 316 Mich. App. 91, 891 N.W.2d 240 (2016)

O’Connor v. Oakland County Sheriff’s Department, 169 Mich. App. 790, 426 N.W.2d 816 (1988).

Prime Time International Distributing, Inc. v. Department of Treasury, 322 Mich. App. 46, 910 N.W.2d 683 (2017)

Priority Health v. Commissioner of Office of Financial and Insurance Services, 489 Mich. 67, 803 N.W.2d 132 (2011)

In re Project Cost & Special Assessment Roll for Chappel Dam, 282 Mich. App. 142, 762 N.W.2d 192 (2009)

Robertson v. City of Detroit, 131 Mich. App. 594, 345 N.W.2d 695 (1983)

Schommer v. Director, Department of Natural Resources, 162 Mich. App. 110, 412 N.W.2d 663 (1987)

Shavers v. Attorney General, 402 Mich. 554, 267 N.W.2d 72 (1978)

South Dearborn Environmental Improvement Association, Inc. v. Department of Environmental Quality, 316 Mich. App. 265, 891 N.W.2d 233 (2016)

South Dearborn Environmental Improvement Association, Inc. v. Department of Environmental Quality, 502 Mich. 349, 917 N.W.2d 603 (2018)

Stackhouse v. Stackhouse, 193 Mich. App. 437, 484 N.W.2d 723 (1992)

State Board of Education v. Houghton Lake Community Schools, 430 Mich. 658, 425 N.W.2d 80 (1988)

SuperX Drugs Corp. v. Michigan Board of Pharmacy, 233 F. Supp 705 (W.D. Mich. 1964)

Taylor v. Secretary of State, 216 Mich. App. 333, 548 N.W.2d 710 (1996)

Teddy 23, LLC v. Michigan Film Office, 313 Mich. App. 557, 884 N.W.2d 799 (2015)

13 Southfield Associated v. Michigan Department of Public Health, 82 Mich. App. 678, 267 N.W.2d 483 (1978)

Triplett v. Deputy Warden, Jackson Prison, 142 Mich. App. 774, 371 N.W.2d 862 (1985)

Turner v. Washtenaw County Road Commission, 437 Mich. 35, 467 N.W.2d 4 (1991)

Viculin v. Department of Civil Service, 386 Mich. 375, 192 N.W.2d 449 (1971)

Villa v. Fraser Civil Service Commission, 57 Mich. App. 754, 226 N.W.2d 718 (1975)

Walen v. Department of Corrections, 443 Mich. 240, 505 N.W.2d 519 (1993)

Walker Bey v. Department of Corrections, 222 Mich. App. 605, 564 N.W.2d 171 (1997)

Wayne County Prosecutor v. Parole Board, 210 Mich. App. 148, 532 N.W.2d 899 (1995)

Constitutions

Michigan Constitution, Article VI, §§ 13 and 28

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Statutes

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.263 and 24.264 (declaratory rulings and declaratory judgments)

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.301 to 24.306 (petitions for review)

Revised Judicature Act, MCL §§ 600.615, 600.631, 600.1615, and 600.4401

Federal Administrative Procedures Act, 5 U.S.C.A. § 701(a)(1)

Court Rules

MCR 2.602(a)

MCR 2.605 MCR 3.302 MCR 3.302(C) MCR 3.303 MCR 3.305(A)(2) MCR 3.305(B)(2) MCR 3.305(C) (E) MCR 3.310 MCR 7.101 to 7.123 (appeals generally) MCR 7.101(B)(1) MCR 7.103(B)(1) MCR 7.104(A) MCR 7.105(B)(1) MCR 7.105(B)(2) MCR 7.206(B) MCR 7.206(D)

CHAPTER IX: SCOPE OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION

Introduction

Scope of judicial review focuses on the relationship between courts and agencies. The foremost question is “how much” a reviewing court will substitute its judgment for that of an agency. The controlling factors are the Michigan Constitution, underlying statutes, the Administrative Procedures Act, and the methods of judicial review which are used to get a matter before a court. To an extent, jurisprudential doctrine also controls the intensity of judicial review of agency action. Because Michigan’s case law is confused, care should be exercised to assure that a case which applies a particular scope of review, or describes that scope, is actually an accurate assessment of the proper scope.

Constitutional Scope of Review

The major constitutional provision is Article VI, Section 28 of the Michigan Constitution, which provides that the scope of review is “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.” The covered decisions must be judicial or quasi judicial in nature, described in Turner v. Washtenaw County Road Commission as those “applying as it does a general rule to the particular facts of a particular situation.”

Article VI, Section 28 includes all administrative adjudications, formal and informal, state and local, but does not cover legislative or quasi legislative actions, such as rules. The provision applies only to final outcomes, but the words “decision,” “finding,” “ruling,” “order,” and “administrative” have not been considered judicially. The Constitution supplies a minimum scope of review; an underlying or applicable statute can require more. The authorized by law provision applies to all agency adjudications; the substantial evidence provision applies only to judicial review of administrative hearings, meaning that it applies during review of all formal adjudications and those governed by due process.

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Authorized by Law as Constitutional Scope of Review

Whether a decision was authorized by law is sometimes the only available scope of review of agency action. For instance, review of informal adjudication by state rulemaking agencies, where no statutory review provision is available, can make Revised Judicature Act Section 631 the only review method available. But this method has no scope of review language, so where no hearing was involved the constitutional authorized by law standard is all that is available. The meaning of the term “authorized by law” should be whether the decision under review was within the authority of the agency; that is, within its power to act or jurisdiction. However, judicial decisions have treated this standard as if it means “procedurally correct,” or “an error of law,” or not based on “substantial evidence,” or the “adoption of wrong principles,” or as covering “questions of law,” or “contrary to law, or “lawful,” or “unreasonable,” or “no abuse of discretion,” or “arbitrary,” none of which are correct.

Substantial Evidence as Constitutional Scope of Review

The substantial evidence test applies in addition to the authorized by law provision to those adjudications in which a hearing is required. The leading Michigan case, Michigan Employment Relations Commission v. Detroit Symphony Orchestra, is a direct adoption of both the APA substantial evidence standard and of the federal interpretation of the substantial evidence standard in Universal Camera Corp. v. National Labor Relations Board.

The substantial evidence test applies to an agency’s findings of fact and embodies the concept of judicial deference to agency factfinding. The review undertaken by a court under this test is not de novo that is, not an independent assessment of the facts by the court but is rather a review of the whole record as created at the agency hearing. The test considers whether an agency finding is reasonable in light of the whole record, including where the preponderance of evidence fell, even if the court disagrees with the finding. In reaching its conclusion regarding the reasonableness of the agency’s factual conclusions, the reviewing court must consider the evidence on both sides, including the evidence that does not support the findings of the agency. The hearing officer’s opinion is part of the record, and, although not evidence, must be considered by the agency head during agency review and by a reviewing court. The agency head does not have to agree with the hearing officer’s

decision, but must consider it and explain the basis of disagreement, particularly on matters of credibility. A reviewing court can consider the relative merits of the two agency decision makers, as demonstrated in Detroit Symphony Orchestra.

Constitutional Scope of Review of Worker’s Compensation Cases

The constitutional standard in worker’s compensation cases, as set forth in Article VI, Section 28, is much more deferential to agency fact finding than is the general standard in that section, providing that the findings of fact “shall be conclusive in the absence of fraud.” But the Michigan Supreme Court interpreted that to mean if supported by “any competent evidence,” which the Court of Appeals embellished by declaring that the findings were “conclusive in the absence of fraud if supported by any competent, material and substantive evidence.” These opinions are erroneous because the Constitution explicitly makes the competent, material and substantial evidence standard inapplicable by establishing that fact finding in worker’s compensation review cases is conclusive in the absence of fraud in the sentence immediately following the recitation of the general substantial evidence standard. The Supreme Court further eroded the constitutional standard when it applied the federal concept known as the jurisdictional facts doctrine to what it called jural facts, making review of at least some factual findings de novo.

Constitutional Scope of Review in Certain Property Tax Cases

Judicial review in property tax valuation or allocation cases under Article VI, Section 28 of the Constitution is limited to “fraud, error of law or the adoption of wrong principles. The Supreme Court converted that standard into the general substantial evidence test in the second Fisher New Center Co. v. Michigan State Tax Commission case, reversing a holding it made in the first appearance of Fisher New Center that the review was more limited in these cases. It did so by asserting, contrary to the Constitution’s plain language, that a decision based on other than substantial evidence was both an “error of law and [an] adoption of wrong principles.” Other than property tax matters involving valuation or allocation, the general substantial evidence scope of review properly applies to property tax cases.

Together with the worker’s compensation decisions, the Michigan courts seem to operate under the view that courts have

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inherent power to review agency action, including at least a minimal review of agency fact finding. Their reasoning is fallacious.

Administrative Procedures Act Scope of Review

Chapter 6 of the Administrative Procedures Act applies to judicial review of decisions made in contested cases, as well as to review of declaratory rulings issued by agencies. An underlying statute can make the APA judicial review provisions available where they otherwise would not be. Section 106 of the APA recognizes that an underlying statute can provide a different scope of review, even if the balance of the APA Chapter 6 judicial review provisions apply.

Section 106(1) empowers a reviewing court to “hold unlawful and set aside a decision or order in a contested case, while Section 106(2) allows the court to “affirm, reverse or modify the decision or order or remand the case for further proceedings.” In order to obtain relief under either section, the petitioner must show that the petitioner’s substantial rights have been violated.

The APA includes six grounds which constitute a broad scope of judicial review of contested cases, although the intensity or depth of review varies among the different standards.

Violation of Constitution or Statute

Under the first APA standard, a reviewing court can set aside agency action that violates the constitutions or a statute. As to constitutional issues there is little apparent deference to agency interpretations (except arguably to interpretations made by agencies established in the Constitution itself). As to statutes, an agency’s construction of an underlying statute is entitled to “considerable weight,” under the frequently cited and often ignored precedent in Magreta v. Ambassador Steel Co. The courts remain the final arbiters of the meaning of constitutional and statutory provisions. The general standard of constitutional construction is the plain or ordinary meaning standard; with statutes the plain or unambiguous language standard is the most commonly used, followed by the search for legislative intent.

Excess of Jurisdiction or Authority

Under the second APA judicial review standard, a court looks to see if an agency action is in excess of the agency’s jurisdiction or authority. This provision seems to contemplate whether the agency

action was ultra vires. Arguably, this is the equivalent of the “authorized by law” provision in the Constitution’s Article VI, Section 28.

Unlawful Procedure

The third APA standard is whether the decision was made upon unlawful procedure resulting in material prejudice. The cases have been somewhat inconsistent in their consideration of the material prejudice aspect, but the Court of Appeals has successfully demonstrated the proper application of this standard of judicial review.

Substantial Evidence

The fourth APA standard is the main standard for review of agency fact finding whether the action is “[n]ot supported by competent, material and substantial evidence on the whole record.” The leading case is Michigan Employment Relations Commission v. Detroit Symphony Orchestra (discussed previously in the context of the constitutional substantial evidence standard). The Supreme Court observed that the delegates used the substantial evidence standard from the then current APA as the basis for the standard used in Article VI, Section 28.

According to the Court, review under this provision is of the whole record, not just the evidence favoring the agency decision under review, and it emphasized three points: (1) the standard contemplates “a thorough review of the administrative decision, a review which considers the whole record that is, both sides of the record not just those portions of the record supporting the findings of the administrative agency.” (2) the Court instructed that “[a]lthough such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency.” (3) the Court concluded this passage with recognition that “[s]uch review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact finding by displacing an agency’s choice between two reasonably differing views.”

The test is one of reasonableness of the decision in light of the facts, not one of “rightness” in the reviewing court’s view. The reviewing court should not substitute its judgment for that of the

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agency on the findings of fact. The preponderance of evidence test applies to the ultimate decision at the agency level; at the judicial level, the issue is whether the agency could reasonably have found that the preponderance was as it did, not whether the reviewing court would have found otherwise regarding the preponderance. This often leads to the erroneous judicial observation that substantial evidence is a lower standard than a preponderance of the evidence. It is not in fact it is not even relevant to the issue, which is whether an agency could reasonably have found that the preponderance was what it declared it to be. The key is recognizing the proper functions of the agency and the reviewing courts.

In Detroit Symphony Orchestra, the crucial issue involved credibility of the witnesses. The Supreme Court held that its thorough review of the whole record supported the hearing officer’s conclusion, not the conclusion of the agency that had overturned the hearing officer’s decision. The Court found wanting the explanation offered by the agency for its determination.

The analysis of what constitutes substantial evidence is aided by keeping in mind the context: the substantial evidence test is used by courts in reviewing facts found by an agency, but the test is not used by an agency in finding facts. The most common articulation of the nature of substantial evidence is that it is “evidence [which] a reasonable mind might accept as [sufficient] to support a conclusion,” and consists of “more than a mere scintilla of evidence” but may be “somewhat less than a preponderance of the evidence.” Careless use of the quoted words and a misunderstanding of the purpose of the test have led to some confusion about the importance of substantial evidence in an agency’s fact finding and decision making. When an agency determines the facts, the evidentiary burden is the preponderance of evidence and an agency must decide on what it finds the evidence to be it must make the correct decision. The reviewing court defers to agency fact-finding under the substantial evidence test, at least to the degree that the reviewing court determines only if the decision by the agency as to where the preponderance fell was reasonable in light of all the evidence.

Arbitrary, Capricious, or Abuse of Discretion

The fifth APA standard is really three standards: was the agency action “[a]rbitrary, capricious, or clearly an abuse of unwarranted exercise of discretion.” Despite the fact that these words have established meanings according to decisions of the Michigan

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Supreme Court, there is a decided tendency among lower courts and lawyers to apply them intuitively and, too often, collectively.

Arbitrary means “without adequate determining principle . . . [f]ixed or arrived at . . . by caprice, without consideration or adjustment with reference to principles, circumstances, or significance, . . . decisive but unreasoned.”

Capricious means “apt to change suddenly; freakish; whimsical; humorsome.”

“Abuse of discretion” has had an evolving meaning. According to the older cases, it means that the decision of an agency was “so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” This formulation makes this standard one of considerable deference to an agency. The more recent formulation has softened the standard, allowing courts greater leeway to overturn agency judgments: if a decision falls outside the range of principled and reasoned options, it is an abuse of discretion. Although this standard applies to review of contested case decisions, its best use is the review of informal adjudications, where its primary function is to explore the application of the law to the facts, rather than to review the fact finding itself, especially where there is no hearing record.

Error of Law

The sixth APA standard is whether a decision was “[a]ffected by other substantial and material error of law.” The cases do not clarify this standard, which seems best suited to questions of statutory construction or situations where statutes other than an agency’s underlying statute affect an agency’s decision. In instances where the agency action may be short of that which a statute requires, review under this standard seems preferable to review under the statutory authority standard.

Fact Finding Responsibilities under the APA

Judicial review of factual determinations by agencies should reflect both the nature of administrative decision making and the relative roles of agencies and courts. The more feely a court substitutes its judgment for that of an agency, the more it assumes an executive role and departs from its judicial function.

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At an administrative hearing, the hearing officer applies the preponderance of evidence standard to the record presented. The hearing officer’s obligation is to reach correct or “right” result, based on the whole record, as to which side prevails under the normal civil standard of the burden of proof.

The agency, on review of the hearing officer’s decision, also applies the preponderance of evidence standard, again on the whole record. The Section 81(3) of the APA says that “[o]n appeal from or review of a proposal of decision the agency, except as it may limit the issue upon notice or by rule, shall have all the powers which it would have if it had presided at the hearing.” Still, if the agency decides to reach a different result, it should explain reasons for reaching that outcome.

The circuit court (or the first reviewing court) applies the substantial evidence test. It determines if the decision of the agency is reasonable in light of the whole record, including the evidence on both sides. It does not reach what it may view as the “correct” or “right” result, but must sustain the agency decision if there is substantial evidence to support it, even if it disagrees with the outcome. Thus, it is more difficult for a court to overturn an agency decision under the substantial evidence standard than under the “clearly erroneous” standard of review, which allows reversal where the reviewing court has the firm and definite conviction that a mistake has been made. A decision can be reasonable, but mistaken, so under the clear error standard, a reasonable but mistaken decision can be judicially reversed, while a decision based on substantial evidence cannot.

The subsequent reviewing courts should review the decision of the preceding court, not that of the agency, but there is a decided tendency to the contrary. The second reviewing court should apply the clearly erroneous test to the decision of the first court. If the case gets to an even higher third court, the third court should review the decision of the second court for clear error (or to determine if the second court misperceived or misapplied the proper standard of review).

Scope Of Review Under Other Methods

Underlying statutes have a wide variety of scope provisions, but many have none at all. Statutory provisions must satisfy, but may exceed, the constitutional minimum requirements. The scope of review under Section 631 of the Revised Judicature Act is supplied

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by the Constitution, at least for state agencies with rulemaking power.

Each non statutory method of review declaratory judgment, injunction, superintending control, mandamus, certiorari, and habeas corpus has its own scope, usually defined by the terms of its availability as a method of review of agency action. These have related procedural requirements articulated in the court rules or the provisions of the RJA.

Special Review Considerations

Judicial Review of Rules

No case provides a comprehensive overview of judicial review of agency rules, but three lines of inquiry have evolved. First, a constitutional review standard similar to substantive due process analysis is applied in some cases: do the rules have a rational relationship to an underlying statute or are they reasonable? Second, a general test for the substantive validity of rules is applied: “(1) whether the rule is within the subject matter covered by the enabling statute; (2) if so, whether it complies with the underlying legislative intent; and (3) if it meets the first two requirements, when it is neither arbitrary nor capricious.” Third, a rule may be set aside if it is not based on proper rulemaking procedure.

Judicial Review of Local Action

The scope of judicial review of local agency action is controlled primarily through the provisions in underlying statutes and through the non statutory methods of review. Article VI, Section 28 of the Constitution applies to local action, but the Administrative Procedures Act and Section 631 of the Revised Judicature Act do not.

De Novo Judicial Review

Judicial review de novo has two different forms: (1) review de novo, which limits judicial review to the record made before an agency, but empowers a court to make an independent assessment of the facts and reach an independent decision; and (2) trial de novo, which authorizes a complete, new judicial trial on the merits. Review de novo means that the reviewing body restricts its consideration to the record made in the agency hearing, but makes its own decision on

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what the facts add up to. Trial de novo means the matter is tried anew in court as if it had not been heard previously by the agency.

The Michigan Constitution contains a trial de novo provision for appeals from decisions made by the Michigan Civil Rights Commission. The Supreme Court incorrectly interpreted this provision in Walker v. Wolverine Fabricating & Manufacturing Co., declaring that this provision meant the same as review on the record under the substantial evidence test. Some repair work on this unfortunate decision was undertaken by the Court in Department of Civil Rights ex rel. Johnson v. Silver Dollar Cafe

Clearly Erroneous as a Standard of Judicial Review

Occasionally, an underlying statute invokes the clearly erroneous standard of judicial review. A decision is clearly erroneous if the reviewing court on review of “the entire evidence is left with the definite and firm conviction that a mistake has been committed.” This standard is commonly used by courts when reviewing the fact finding of a lower court in a civil matter. Beason v. Beason demonstrated that the clearly erroneous standard is a more rigorous, less deferential, form of judicial review than is the substantial evidence standard, because it is a test of “rightness,” rather than one of reasonableness. Unfortunately, the Supreme Court equated this test with de novo review, a scope of review that provides no sense of deference for an agency decision. The confusion probably results from the origins of the clearly erroneous test of judicial review by a superior court of the findings of a lower court; when it is applied to judicial review of agency findings, it moves into the executive branch arena making separation of powers a consideration.

Judicial Review of Mixed Questions of Law and Fact

An unusual standard of review applies to the so called mixed question of law and fact test, a federal concept that is undeveloped in Michigan. Application of law to established facts does not present a mixed question of law and fact, which is only presented when the legislative body intended for an agency to have a law defining function. An example is where the law allows an agency to determine what is an unfair labor practice without particularly describing the conduct that might be barred. In this setting, the situation is the application of a statute to specific facts, particularly where the ultimate fact (unfair labor practice) is to be drawn from particular

underlying or basic facts (making punitive assignments of duties). This situation presents a form of legislative intent analysis. The key is whether the legislative body intended for the agency to implement the statute on a case by case basis, in which case great deference should be provided to the agency decisions. Of course, this can lead to concerns about impermissible delegation of power.

Ten Steps to Successful Identification of Proper Scope of Judicial Review

1. Remember that the scope of judicial review is closely tied to the method of review, which will also govern the proper court to undertake review.

2. Examine and follow any judicial review provisions in the underlying statute authorizing the administrative action which will be the focus of judicial review.

3. Be aware that as to matters of law, the general rules of statutory construction apply, but that an agency’s interpretation of its underlying statute is entitled to some deference.

4. Consider that as to matters of fact the substantial evidence test is the most common standard of the scope of judicial review of agency fact finding where an evidentiary record was made.

5. Consider that as to matters of fact the arbitrary, capricious, or abuse of discretion tests are the most common standards of judicial review of agency fact finding where the decision does not rest on an evidentiary record.

6. Determine if the Administrative Procedures Act was applicable to the agency action; if so, follow its six standards of the scope of review unless otherwise directed by the underlying statute.

7. If the underlying statute and the APA do not provide a method or scope of review, determine if such review is available under the Revised Judicature Act, which implements the constitutional scope of review in Article VI, Section 28.

8. If the underlying statute, the APA, or the RJA do not provide a method of review, determine if such review is available through the non statutory methods, each of which contains its own scope of review.

9. Compare the scope of review found in all statutes and methods of review to the minimum requirements of Article

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VI, Section 28 of the Michigan Constitution, which requires that all covered actions be authorized by law and that those involving a hearing also be supported by substantial evidence.

10. Consider the powers of the court reviewing the agency action and of those courts to which further appeal might be taken, especially regarding review of an agency’s fact finding.

Sources

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 9 (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer,

T.M. Cooley Law Review, Volume 12:21 (1995)

25 Michigan Law Revision Commission Annual Report (1990)

Cases

Aquilina v. General Motors Corp., 403 Mich. 206, 267 N.W.2d 923 (1978)

Beason v. Beason, 435 Mich. 791, 460 N.W.2d 207 (1990)

Boyd v. Civil Service Commission, 220 Mich. App. 226, 559 N.W.2d 342 (1996)

Bundo v. City of Walled Lake,395 Mich. 679, 238 N.W.2d 154 (1976)

Chesapeake & Ohio Railway Co. v. Michigan Public Service Commission, 59 Mich. App. 88, 228 N.W.2d 843 (1975)

Department of Civil Rights ex rel. Johnson v. Silver Dollar Cafe, 441 Mich. 110, 490 N.W.2d 337 (1992)

Deziel v. Difco Laboratories, Inc., 394 Mich. 466, 232 N.W.2d 146 (1975)

Fisher New Center Co. v. Michigan State Tax Commission, 381 Mich. 713, 167 N.W.2d 263 (1969)

National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 S. Ct 851, 88 L. Ed. 1170 (1944)

Hitchingham v. Washtenaw County Drain Commission, 179 Mich. App. 154, 445 N.W.2d 487 (1989)

Luttrell v. Department of Corrections, 421 Mich. 93, 365 N.W.2d 74 (1984)

Magreta v. Ambassador Steel Co., 380 Mich. 513, 158 N.W.d 473 (1968)

PRIMER

Marrs v. Board of Medicine, 422 Mich. 688, 375 N.W.2d 321 (1985)

Michigan Employment Relations Commission v. Detroit Symphony Orchestra, 393 Mich. 116, 223 N.W.2d 283 (1974)

Northwestern National Casualty Insurance Co. v. Insurance Commissioner, 231 Mich. App. 483, 586 N.W.2d 563 (1998)

People v. Babcock, 469 Mich. 247, 666 N.W.2d 231 (2003)

Regents of the University of Michigan v. Michigan Employment Relations Commission, 389 Mich. 96, 204 N.W.2d 218 (1973)

Sterling Secret Service, Inc. v. Michigan Department of State Police, 20 Mich. App. 502, 174 N.W.2d 298 (1969)

13 Southfield Associated v. Michigan Department of Public Health, 82 Mich. App. 678, 267 N.W.2d 483 (1978)

Toole v. Michigan State Board of Dentistry, 306 Mich. 527, 11 N.W.2d 229 (1943)

Turner v. Washtenaw County Road Commission, 437 Mich. 35, 467 N.W.2d 4 (1991)

Tuttle v. Department of State Highways, 397 Mich. 44, 243 N.W.2d 244 (1976)

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 2d 456 (1951)

Viculin v. Department of Civil Service, 386 Mich. 375, 192 N.W.2d 449 (1971)

Villa v. Fraser Civil Service Commission, 57 Mich. App. 754, 226 N.W.2d 718 (1975)

Walker v. Wolverine Fabricating & Manufacturing Co., Inc., 425 Mich. 586, 391 N.W.2d 296 (1986)

Constitutions

Michigan Constitution, Article VI, §§ 13 and 28

Statutes

Michigan Administrative Procedures Act of 1969, M.C.L. § 24.281 (proposal for decision)

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.263 and 24.264 (declaratory rulings)

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.301 to 24.306 (petitions for review)

Revised Judicature Act, MCL § 600.631

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CHAPTER X: AVAILABILITY OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION

Introduction

Doctrines controlling the availability of judicial review standing, ripeness and finality, exhaustion of administrative remedies, and primary jurisdiction are largely jurisprudential in nature, although most have their foundation in constitutional principles. The policies which underlie all four concepts are similar they assure that only real controversies reach courts, they define the relationship between courts and agencies, they reinforce the administrative function, they conserve judicial resources, and they maintain the separation of powers between the executive and judicial branches.

Standing is a “who” question. Ripeness is both a “when” and a “what” question, as is the exhaustion of administrative remedies. Finality has aspects of both ripeness and exhaustion of remedies, and in some contexts is a part of standing as well. Primary jurisdiction is a “where” question. Some of the doctrines have been incorporated into the APA and underlying statutes. The underlying statute is an analytical focus for all the doctrines, regardless of any special mention of them in that statute. Except when considering exhaustion, the Michigan cases tended to follow the federal law, even though it is not binding. That all changed in a 2010 Michigan Supreme Court decision that led Michigan’s standing law away from the federal approach. The relationship among the concepts is discussed in Michigan Administrative Law, §§ 10:1 and 10:2.

Standing

Standing in General

Standing in administrative cases addresses “who” should be able to challenge an action, here an administrative action. This doctrine assures that a party seeking judicial review is sufficiently interested in the outcome of a case to assure the required adverseness. Care should be taken to separate the question of who is a proper party from questions addressed by other availability of judicial review doctrines and from issues regarding the merits of a case, as well as from whether a legal question is justiciable. In Michigan, standing has been the most volatile of the reviewability concepts, if not in all of administrative law.

PRIMER

Administrative law standing principles are the same as those in any other standing case; the difference in administrative cases is the impact of an underlying statute and the nearly universal involvement of a government agency in some aspect of a controversy. In addition to standing established through underlying statutes, Michigan’s Administrative Procedures Act provides for standing (as well as exhaustion of remedies and finality) in section 101: “When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision is affirmative or negative in form, the decision or order is subject to direct review by the courts as provided by law.”

Although this provision is limited to challenges regarding contested cases, Kassab v. Acho held that the persons seeking review need not have been a party in the contested case at issue.

Function of Standing

The purpose of standing is not to predict the likelihood of success on the merits of a case, but to insure sufficient controversy in matters before courts; the party seeking judicial review must have a substantial interest and a personal stake in the outcome. Those asserting injury caused by the violation of a statute must show an injury different from that of the citizenry at large. Courts will not accept collusive, friendly, or advisory lawsuits, because such suits fail to satisfy the case or controversy requirement.

Judicial Tests for Standing

Because the foundation of the standing doctrine is (arguably) constitutional and (clearly) jurisprudential, and because U.S. Const. Art. III does not apply to the states, the federal case law is not binding on Michigan courts. Nonetheless, Michigan standing decisions closely paralleled those of the United States Supreme Court, at least until relatively recently. Despite the long time absence of a leading, unifying decision by the Michigan Supreme Court, the Michigan decisions have shown acceptance of the federal cases and evidenced a propensity to follow the federal reasoning.

The Supreme Court attempted to clarify the conceptual underpinnings of Michigan standing law in Lee v. Macomb County Board of Commissioners, a 2001 decision emphasizing that constitutional considerations of separation of powers was the law of Michigan. But in 2010, a majority of the Supreme Court in Lansing

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Schools Education Association v. Lansing Board of Education at least temporarily ended the tendency to follow federal standing law, overturning Lee and other cases relying on Lee on the basis that the standing doctrine in Michigan is prudential, not constitutional. The Court emphasized that the Michigan and federal Constitutions are not identical and that “there is no support in either the text of the Michigan Constitution or in Michigan jurisprudence, however, for recognizing standing as a constitutional requirement or for adopting the federal standing doctrine.” This case resumed the long battle over standing law in Michigan, perhaps overstating the demise of the influential role of federal standing decisions. After a decade, no member of the Court remains, but given the intensity of the battle leading up to this case it is likely to resume. Meanwhile, the historic cases are appropriately discussed, because many situations meet both the Lansing Schools Education Association and the Lee test. And a Phoenix may arise from the recent standing ashes.

After Lee the Michigan law followed federal law, requiring that a party seeking standing must demonstrate that: (1) the party asserting standing, or a person whom the party legitimately represents, has personally suffered in fact some actual or threatened injury to an economic or other substantial interest, as a result of the putatively illegal conduct of the defendant; (2) the interest injured is one which is arguably within the zone of interests to be protected or regulated by a statute or constitutional guarantee which is relevant to the controversy; (3) the injury asserted fairly can be traced to the challenged action; and (4) the injury asserted is likely to be redressed by a favorable decision on the merits of the case. This summary, developed by the editor, remains applicable in federal cases and is helpful in analyzing Michigan’s standing elements, even if not currently fully applicable to cases in the Michigan courts.

Under the Lansing Schools Education Association formulation, “a litigant has standing whenever there is a legal cause of action,” which occurs if (1) it meets MCR 2.605 in actions for a declaratory judgment or (2), in the court’s discretion, if the litigant has standing due to a “special injury or right” or a “substantial interest” that “will be detrimentally affected in a manner different from the citizenry at large” or (3) “if the statutory scheme implies that the Legislature intended to confer standing on the litigant.”

Nature of Injury or Detrimental Effect

A major focus in the cases is on the nature of injuries sufficient to establish standing. The injury asserted by the party seeking review need not be economic, the injury need not be to a legal right, and the injury need not have yet occurred. However, the injury must be to the person asserting standing, must be directly traceable to the challenged agency action, and the remedy sought must redress the injury.

Representational Standing

A proper representative may assert the standing of another, an approach justified based on cost, convenience, and avoidance of a multiplicity of lawsuits. The representative must be an appropriate litigation representative. The factors in making that determination are the purpose of the representing organization, its authority to bring suit in the name of its members, the interests involved in the controversy, and effect of the challenged action on the members. An organization with its own injury can have standing in its own right. The difficulty with this concept appears to be with its inconsistent application by the courts.

Taxpayer, Citizen, and Public Official Standing

The test for taxpayer standing was stated in Menendez v. City of Detroit: “prerequisite to a taxpayer’s right to maintain a suit of this character against a unit of government is the threat that he will sustain substantial injury or suffer loss or damage as a taxpayer, through increased taxation and the consequences thereof.” The injury to the taxpayer must be separate from the injury to other taxpayers.

The test for standing of citizens for statutory violations is similar to that for taxpayers, according to Alexander v. City of Norton Shores and Waterford School District v. State Board of Education: “a private citizen has no standing to vindicate a public wrong or enforce a public right where he is not hurt in any manner differently from the citizenry at large.” Michigan’s Constitution gives standing to taxpayers regarding violations of the Headlee Amendment, which protects against restrictions of certain state imposed spending obligations. And the Revised Judicature Act and the court rules provide a limited form of taxpayer standing in true tax cases, but these do not cover incidental expenditures of tax dollars.

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Public officials can bring lawsuits consistent with their public duties.

Ripeness and Finality

Ripeness and Finality in General

Ripeness concerns a “when” question when should a court review an administrative agency action. The question is not whether there will be judicial review of an agency’s action, but the timing of that review. Finality is both a “when” question agency can be reviewed when it is final and a “what” question what can be reviewed is final agency action. Finality and ripeness contemplate that a court should not consider an action or threatened action of an agency prematurely. Courts consider only controversies, which do not exist in the absence of final agency action.

Normally, only final agency action is subject to judicial review; preliminary or uncertain matters should not be reviewed because they lack sufficient adversity. Only agency action embodied in some formal or official version is reviewable; agency opinions and other nonbinding action should not be subject to review. In this sense, the concept of finality is an aspect of ripeness is a controversy ready for judicial review.

By comparison, exhaustion of administrative remedies examines whether a procedure remains available within an agency which the affected person may invoke to challenge an agency’s current position or decision. Finality is an aspect of exhaustion of remedies, because a decision of an agency is not final if it is subject to further review within the agency at the behest of the person seeking to challenge it. Ripeness looks to whether the agency has completed its action and examines whether the action is then ready for judicial review. Even unquestionably final agency action may not be judicially reviewable under the ripeness doctrine, which may require that judicial review be delayed until an agency attempts to apply the final action in some manner, such as when an agency enforces a rule. The ripeness doctrine provides context and sharpens a controversy.

Context of Ripeness Issues

The common context where ripeness issues arise is when an agency has taken a final policy position in an agency action, but a person has not yet violated that policy, a context often referred to as pre enforcement. Review of agency rules prior to their application to

ADMINISTRATIVE LAW PRIMER

a person is frequently the setting for pre enforcement review. The usual method of judicial review in a pre enforcement setting is an action for a declaratory judgment, often in combination with an action for an injunction.

Test for Ripeness

Ripeness is a judicial doctrine with aspects which are both constitutional (requirement of an actual case or controversy) and jurisprudential (avoidance of premature expenditure of judicial resources). Michigan has almost no cases discussing ripeness as a concept, a consequence due in part to the generous availability of declaratory relief. Michigan courts have shown a propensity to follow federal case law in nearly all aspects of availability of judicial review, including the limited consideration of ripeness and finality, so the well developed federal law can safely be followed.

The leading federal case is Abbott Laboratories v. Gardner, an example of judicial review of a rule (a final agency action) before its application in an agency enforcement proceeding. Abbott set forth a two part test to identify cases which are ripe for judicial review: (1) is the issue fit for judicial review? (2) Will there be hardship on the party if review is denied at the time sought?

Both aspects must be satisfied for the matter to be ripe; no balancing of one part of the test against the other is involved. Fitness of the issue focuses on whether the case involves purely legal issues, the absence of any need to develop facts during any judicial review, and both the formality and finality of the challenged action. Hardship looks for a costly dilemma usually costly compliance with an arguably illegal or ultra vires agency action on the one hand or the risk of criminal penalties and civil costs on the other. Hardship, however, is not simply the burden imposed by the threatened action, but that imposed by delay in the judicial review if the review is denied at the time when it is requested.

Exhaustion of Administrative Remedies

Exhaustion in General

Exhaustion presents another “when” question related to the timing of judicial review when can judicial review of agency action be had. But exhaustion also has a “what” aspect only final agency action is subject to judicial review. The general rule is that any available administrative remedy within an agency must be exhausted

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before judicial review can be sought. If there is some further challenge within the agency available to the person seeking judicial review, the decision is not final and therefore not reviewable. If the agency has completed its action and no administrative remedy is available, but judicial review is sought before an agency applies that action to an individual, such as an attempt to review a rule before its enforcement against an individual, the doctrine involved is ripeness, not exhaustion. Primary jurisdiction differs from exhaustion in that with exhaustion issues there is no question that the original agency alone has original subject matter jurisdiction, while original subject matter jurisdiction lies both in an agency and a court when the primary jurisdiction situation arises.

Function of the Exhaustion Doctrine

Numerous policies underlie the exhaustion doctrine. A number of functions of the exhaustion doctrine were discussed by Justice Brennan in Judges of the 74th Judicial District v. Bay County, including”: (1) preservation of the separation of powers and functions of the three branches described in the Michigan Constitution, (2) conservation of judicial resources, (3) use of agency expertise, (4) protection of the administrative functions or public policy purpose, and (5) development of a factual record for judicial review.

Application of the Doctrine

The exhaustion doctrine has been considered in a wide variety of circumstances and in a confusingly inconsistent manner. Although Michigan courts are split, the weight of authority is that exhaustion is jurisdictional rather than jurisprudential. Clearly, however, it is not the courts have discretion to take a case despite the existence of an administrative remedy and do so frequently through the well known exceptions to the doctrine.

An agency remedy must be available to require its exhaustion, so identification of an administrative remedy, usually found in an underlying statute but sometimes created by agency rules, is the key to application of the doctrine. Michigan’s Administrative Procedures Act incorporates an exhaustion requirement, but that provision does not require that a request for an administrative rehearing be made before seeking judicial review unless specifically so provided in an underlying statute.

Exceptions to the Doctrine

Exceptions to the exhaustion requirement abound, including those on the list which follows:

1. Absence of agency authority. According to K Mart Corp v. Department of State, a person can challenge an “agency’s authority or power to bring the administrative proceeding against him, he may obtain leave for judicial review of the agency’s authority.” This decision perhaps conflicts with Judges of the 74th Judicial District v. Bay County, which required exhaustion despite a claim of lack of authority a determination consistent with the federal position established in Myers v. Bethlehem Shipbuilding Corp. A possible reconciliation of the two Michigan cases, suggested by the author, is to eliminate the exhaustion requirement in situations in which the lack of authority is apparent without factual development. Some case law authority now exists for this approach. See Michigan Administrative Law, § 10:32.

2. Equitable injunctive relief. The Michigan Supreme Court held in Consumers Power Co. v. Public Service Commission, that exhaustion of administrative remedies is not required if the party can show irreparable harm and the absence of another available remedy.

3. Purely declaratory relief. The Michigan Supreme Court held in Judges of the 74th Judicial District that there is no requirement to exhaust administrative remedies “where the relief is purely declaratory and the facts are undisputed.” The basis for seeking declaratory judicial relief often is tied to the validity of agency rules, or to the agency’s lack of authority (as in Judges of the 74th Judicial District, or to the asserted unconstitutionality of the agency action.

4. Inadequate administrative remedy. According to several cases, exhaustion of administrative remedies is not required if such remedies are inadequate. Often, the inadequacy is that the case involves a form of relief which the agency cannot provide under its statute, such as damages.

5. Pure legal issue. Michigan cases have at least implied, as did Judges of the 74th Judicial District, that questions dealing with pure legal issues fall within the exceptions to the exhaustion requirement. This exception would not apply when agency expertise is necessary for the proper interpretation of a statute.

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6. Presence of cumulative remedies. Several cases hold that the presence of cumulative remedies justifies an exception to the exhaustion requirement. The remedies can be created by statutory or common law; their presence often injects exhaustion consideration in Michigan in situations that would be analyzed under the primary jurisdiction doctrine in the federal system.

7. Pure constitutional issue. According to the Michigan Supreme Court in Durant v. State, this exception is available where there are no facts at issue and the constitutional issue is unavoidable.

8. Vain and useless (or futile) act. The Michigan Court of Appeals held in Association of Little Friends, Inc. v. City of Escanaba that the “failure to exhaust administrative remedies is excused where appearance before the board of review would be futile.” This exception applies where a uniform past application of policy can be readily established.

9. Predisposition of decision maker. The Michigan Court of Appeals held in Michigan Waste System, Inc. v. Department of Natural Resources that “exhaustion of administrative remedies is not required where the administrative decision maker is predisposed to rule against the aggrieved party.” In order to invoke this exception the party must demonstrate sufficient evidence of prejudgment. And it should not apply when the agency’s challenged position has been judicially upheld uniformly.

10. Delay. In Sears v. Department of Treasury, the Court of Appeals held that an agency cannot rely on its own lack of diligence to avoid judicial review.

11. Pending criminal proceedings. The Michigan Supreme Court held in Michigan State Employees Association v. Civil Service Commission that the requirement to exhaust is stayed while criminal proceedings are pending.

Courts review agency action with a presumption of regularity and proper exercise of power by agencies, so emotional appeals are not sufficient. In general, when judicial review would not undermine the policies which justify the exhaustion requirement, the courts tend to hear the case despite the availability of the agency remedy. Many of the exceptions to the doctrine are founded on the basis that there will be no interference with the administrative role. But these cases all

present issues about whether the exhaustion of remedies is a jurisdictional issue. See Michigan Administrative Law, § 10:30; see §§ 10:31 to 10:42 for additional discussion about the exceptions.

Primary Jurisdiction

Primary Jurisdiction in General

Primary jurisdiction is a “where” question where or in what forum should a controversy first be considered. The doctrine applies when there is concurrent original subject matter jurisdiction in both a court and an administrative agency. The usual overlap is between a common law cause of action and a regulatory scheme or program established by statute that does not abolish the common law right and places implementation in the hands of an administrative agency. If a common law action is abolished and entirely replaced by a statutorily created administrative regulatory scheme, the agency empowered by the scheme has exclusive jurisdiction and the doctrine of primary jurisdiction plays no role in determining where a plaintiff can proceed.

Exhaustion of administrative remedies differs from primary jurisdiction in that there is no question of an agency’s original jurisdiction. The exhaustion doctrine prohibits a party’s attempt to get judicial review of an agency action before using all the procedures available in the agency. The concept of primary jurisdiction is jurisprudential and can be invoked on a court’s own motion. It can also be invoked as a defense by a party to litigation and by an agency intervening in a lawsuit. Caution is advised in reading and citing cases which use the term “primary jurisdiction,” because there is both mislabeling and confusion in the case law, which has often used the term to describe exclusive jurisdiction, preemption, overlapping jurisdiction, abstention, exhaustion of remedies, standing, statutory control of the method of judicial review, collateral estoppel, and res judicata. Federal primary jurisdiction cases are not controlling, but clearly served as the model for Michigan decisions.

Function of Doctrine of Primary Jurisdiction

Primary jurisdiction serves to assure uniformity and consistency of approach in resolving a particular problem. Primary jurisdiction also enhances the potential to use the expertise of an agency and to take advantage of agency resources in solving problems and in

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providing suitable remedies, particularly those remedies beyond the traditional powers of courts. While all these considerations have been recognized in Michigan, see particularly Attorney General v. Diamond Mortgage Co., Rinaldo’s Construction Corp. v. Michigan Bell Telephone Co., and Bank v. Michigan Education Association NEA, the most important is the need for uniformity.

Exceptions to the Doctrine of Primary Jurisdiction

Federal cases recognize an exception to the application of the doctrine where the regulatory action does not require administrative expertise to determine specialized facts, an exception which Michigan apparently follows. In addition to the “no specialized facts” exception, Michigan courts sometimes identify an exception if the concurrent administrative remedy would be inadequate (or at least they do not apply the doctrine when that is the case). Also, if there is insufficient consistency of the issues to be considered in the agency and judicial contexts, the Michigan courts will claim an exception from the primary jurisdiction doctrine. Both of these Michigan positions are apparently inconsistent with federal law.

Limitations on Application of Primary Jurisdiction Doctrine

Attorney General v Diamond Mortgage seemed to limit the doctrine to situations which involved industries that are heavily regulated, but that was not so with White Lake Improvement Association v. City of Whitehall, nor was it the case in Bank v. Michigan Education Association NEA, which involved a labor relations dispute. The heavily regulated industries identified in Diamond Mortgage were common carriers and utilities. The doctrine has not been applied in Michigan civil rights cases, where the remedies are treated as cumulative. Neither the limitation to heavily regulated industries, nor the exception for coverage of civil rights matters is justified.

Courts have discretion to invoke the doctrine, subject to review by higher courts for clear error in doing so. The doctrine has a “black hole” effect, since cases dismissed on the basis of primary jurisdiction and referred to administrative agencies are seldom seen again. In addition, there may be difficulty in forcing an agency to act after the judicial action is dismissed. A court may retain jurisdiction, avoiding statute of limitation problems while the agency considers the matter. If the court does not retain jurisdiction, the agency action

taken ultimately will be subject to judicial review in nearly all cases, although few cases demonstrate this. The collateral estoppel and res judicata effects of the doctrine have not been addressed in Michigan, but the general law of each probably applies.

Steps to Successful Availability of Judicial Review Standing

1. Check the underlying statute to see if it provides for judicial review of the agency action in question.

2. See whether the underlying statute species who may or may not challenge an agency decision.

3. Identify the injury that has occurred or will occur as a result of the agency action or inaction.

4. Describe how the injury affects the plaintiff.

5. If the claim is that the action violates provision in a statute, rule, or the Constitution, explain the relevance of the provision to the challenged agency action, including the identity of the interests protected or regulated by the provision.

6. Consider how the agency action or decision caused the injury and how the action violates the provision governing the interest asserted.

7. Connect the proposed remedy to the injury.

8. Consider the current and historical standing requirements and apply this four part test to demonstrate that: (1) the party asserting standing, or a person whom the part legitimately represents, has personally suffered in fact some actual or threatened injury to an economic or other substantial interest, as a result of the putatively illegal conduct of the defendant; (2) the interest injured is one which is arguably within the zone of interests to be protected or regulated by a statute, rule, or constitutional guarantee which is relevant to the controversy; (3) the injury asserted fairly can be traced to the challenged action; and (4) the injury asserted is likely to be redressed by a favorable decision on the merits of the case.

9. Establish that a plaintiff who represents others has authority to do so through an agreement with those others.

10. Follow the special rules for standing of public officers, taxpayers, and citizens.

Finality and Ripeness

1. Identify the agency action to be challenged.

2. Determine if the underlying statute, rules, or agency practices require further agency process available to or used by the agency in the development of the police to be challenged.

3. Check to see if the same sources provide further agency process available to a party.

4. Be sure to differentiate the doctrines of finality and ripeness from standing, exhaustion of administrative remedies, and to consider the issue of primary jurisdiction as well (remembering that finality aspects relate to both ripeness and exhaustion.

5. When considering whether a case is ripe for judicial review, describe the fitness of the issues for judicial review.

6. Also regarding ripeness, describe the hardship to the party if judicial review is delayed until enforcement by the agency.

7. Review the declaratory judgment and injunction provisions of the court rules and examine the Sections 63 and 64 of the Administrative Procedures Act.

Exhaustion of Administrative Remedies

1. Define or characterize the agency action which has occurred, or is threatened, or is desired.

2. Consider the result desired or the remedy sought by the person affected.

3. Review the underlying statute and relevant agency rules to discover the remedies which are available or required.

4. Compare the available administrative remedy to the desired remedy.

5. Consider whether pursuit of the administrative remedy is the most expedient alternative.

6. If the desire is to avoid the agency, consider the exceptions to the exhaustion doctrine.

7. Avoid arguing conclusions when asserting that a remedy need not be exhausted.

Primary Jurisdiction

1. Identify if there is a cause of action in a court, such as for breach of contract or tort.

2. Consider that if the cause of action is based on a statute enforced in court, it is more likely that any issue will involve interpreting the statute regarding the appropriate judicial jurisdiction than it will involve any question of primary jurisdiction.

3. Assuming that there is a cause of action in a court, consider whether there is any statute related to the subject matter of the lawsuit.

4. If there is a related statute, determine if it abolished the common law remedy and provided the only basis for a challenge, whether the statute places jurisdiction in a court or in an agency.

5. Understand that the doctrine of primary jurisdiction applies whenever a court and an administrative agency have concurrent original subject matter jurisdiction.

6. Remember that the purpose of the primary jurisdiction doctrine is to assure the orderly and sensible coordination of the work of agencies and courts.

7. Review the fundamental premises which underlie this doctrine and allow a court to refuse to hear a case which it otherwise would unquestionably handle: to uphold the functions of an administrative agency, to promote uniformity and consistency, to take advantage of the expertise and resources which repose in the agency, and to conserve judicial resources.

8. Be aware that the doctrine can be applied even if the judicial and administrative actions are not identical, so long as there are issues important to the judicial remedy which are under the special competence of an agency.

9. Keep the doctrine separate from the other availability of review doctrines and functions; review any cases selected for advocacy to assure that they have not mislabeled or misunderstood the doctrine of primary jurisdiction.

10. Be sure to ask a court to consider retaining jurisdiction pending agency action, if the court applies the doctrine, particularly if there will be a statute of limitations or other complications resulting from the delay in judicial action.

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Sources for Standing

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 10, Part I (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Alexander v. City of Norton Shores, 106 Mich. App. 287, 307 N.W.2d 476 (1981)

In re Annexation of Territory in Larkin Township, 146 Mich. App. 29, 379 N.W.2d 460 (1985)

Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970)

Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970)

Block v. Community Nutrition Institute, 467 U.S. 340, 104 S Ct. 2450, 81 L. Ed. 2d 270 (1984)

Electro Tech, Inc. v. H.F. Campbell Co., 443 Mich. 57,445 N.W.2d 61 (1989)

Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968)

Glen Lake Crystal River Watershed Riparians v. Glen Lake Association, 264 Mich. App. 523, 695 N.W.2d 508 (2004)

Human Rights Party v. Michigan Department of Corrections, 76 Mich. App. 204, 256 N.W.2d 439 (1977)

Inglis v. Public School Employees Retirement Board, 374 Mich. 10, 131 N.W.2d 54 (1964)

Kassab v. Acho, 125 Mich. 442, 336 N.W.2d 816 (1983)

Killeen v. Wayne County Road Commission, 137 Mich. App. 178, 357 N.W.2d 851 (1984)

Lansing Schools Education Association v. Lansing Board of Education, 487 Mich. 349, 792 N.W.2d 686 (2010)

Lee v. Macomb County Board of Commissioners, 464 Mich. 726, 629 N.W.2d 900 (2001)

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)

Menendez v. City of Detroit, 337 Mich. 476, 60 N.W.2d 319 (1953)

Michigan License Beverage Association v. Behnan Hall, Inc., 82 Mich. App. 319, 266 N.W.2d 808 (1978)

ADMINISTRATIVE LAW PRIMER

Muskegon Building & Construction Trades v. Muskegon Area Intermediate School District, 130 Mich. App. 420, 343 N.W.2d 579 (1983)

National Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 684 N.W.2d 800 (2004)

Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972)

Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S. Ct. 917, 48 L. Ed. 2d 450 (1976)

Shavers v. Attorney General, 402 Mich. 554, 267 N.W.2d 72 (1978)

St. Johns St. Luke Evangelical Church, United Church of Christ v. National Bank of Detroit, 92 Mich. App. 1, 283 N.W.2d 852 (1979)

United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973)

Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)

Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)

Waterford School District v. State Board of Education, 98 Mich. App. 658, 296 N.W.2d (1980)

White Lake Improvement Association v. City of Whitehall, 22 Mich. App. 262, 177 N.W.2d 473 (1970)

Constitutions

U.S. Const. Art. III Michigan Constitution, Article IX, § 25 34

Statutes and Court Rules

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.301 to 24.306 (petitions for review)

Revised Judicature Act, MCL § 600.2041 MCR 2.201 MCR 2.605

Sources for Ripeness and Finality

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 10, Part II (Thomson Reuters) 2021 Edition

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LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)

Department of Social Services v. Emmanuel Baptist Preschool, 434 Mich. 380, 455 N.W.2d 1 (1990)

Detroit Base Coalition for Human Rights of the Handicapped v. Department of Social Services, 431 Mich. 172, 428 N.W.2d 335 (1988)

Electro Tech, Inc. v. H.F. Campbell, 433 Mich. 57, 445 N.W.2d 61 (1989)

Hendee v. Putnam Township, 486 Mich. 556, 786 N.W.2d 521 (2010)

Lake Angelo Associates v. Township of White Lake, 198 Mich. App. 65, 498 N.W.2d 1 (1993)

Michigan State Chamber of Commerce v. Secretary of State, 122 Mich. App. 611, 332 N.W.2d 547 (1983)

Paragon Properties Co. v. City of Novi, 452 Mich. 568, 550 N.W.2d 772 (1996)

Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985)

Constitutions

U.S. Const. Art. III Michigan Constitution, Article VI

Statutes and Court Rules

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.263 and 24.264 (declaratory rulings and declaratory judgment) MCR 2.605

Sources for Exhaustion of Administrative Remedies

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 10, Part III (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Association of Little Friends, Inc. v. City of Escanaba, 138 Mich. App. 302, 360 N.W.2d 602 (1984)

Attorney General v. Diamond Mortgage Co., 414 Mich. 603, 327 N.W.2d 805 (1982)

Baumgartner v. Perry Public Schools, 309 Mich. App. 507, 872 N.W.2d 837 (2015)

Bennett v. City of Royal Oak School District, 10 Mich App. 265, 159 N.W.2d 245 (1968)

Castro v. Dryden Farms, Inc., 79 Mich. App. 633, 263 N.W.2d 22 (1977)

Cicotte v. Damron, 345 Mich. 528, 77 N.W.2d 139 (1956)

Compton Sand & Gravel Co. v. Dryden Township, 125 Mich. App. 383, 336 N.W.2d 810 (1983)

Consumers Power Co. v. Public Service Commission, 415 Mich. 134, 327 N.W.2d 875 (1982)

Craig v. City of Detroit Police Department, 397 Mich. 185, 243 N.W.2d 236 (1976)

Detroit Automobile Inter Insurance Exchange v. Commissioner of Insurance, 125 Mich. App. 702, 336 N.W.2d 860 (1983)

Durant v. State, 413 Mich. 862, 317 N.W.2d 854 (1982)

Guiles v. University of Michigan Board of Regents, 193 Mich. App. 39, 483 N.W.2d 637 (1992)

Hayes v. Regents of University of Michigan, 53 Mich. App. 605, 220 N.W.2d 91 (1974)

Huggett v. Department of Natural Resources, 232 Mich. App. 188, 590 N.W.2d 747 (1998)

International Business Machines v. Department of Treasury, 75 Mich. App. 604, 255 N.W.2d 702 (1977)

Jackson v. City of Flint, 191 Mich. App. 187, 477 N.W.2d 489 (1991)

Judges of the 74th Judicial District v. Bay County, 385 Mich. 710, 190 N.W.2d 219 (1971)

K Mart Corp v. Department of State, 127 Mich. App. 390, 339 N.W.2d 32 (1983)

L & L Wine and Liquor Corp. v. Liquor Control Commission, 274 Mich. App. 354, 733 N.W.2d 107 (2007)

Michigan State Employees Association v. Civil Service Commission, 406 Mich. 313, 279 N.W.2d 530 (1979)

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Michigan Waste Systems, Inc. Department of Natural Resources, 157 Mich. App. 746, 403 N.W.2d 608 (1987)

Myers v. Bethlehem Shipbuilding Co., 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638 (1938)

O’Keefe v. Department of Social Services, 162 Mich. App. 498, 413 N.W.2d 32 (1987)

Provincial House, Inc. v. Department of Social Services, 167 Mich. App. 1, 422 N.W.2d 241 (1988)

Sears v. Department of Treasury, 57 Mich. App. 218, 226 N.W.2d 63 (1974)

Shuttlesworth v. Riverside Osteopathic Hospital, 191 Mich. App. 25, 477 N.W.2d 453 (1991)

Trojan v. Taylor Township, 352 Mich. 636, 91 N.W.2d 9 (1958) Welfare Employees Union v. Civil Service Commission, 28 Mich. App. 343, 184 N.W.2d 247 (1970)

Constitutions

U.S. Const. Art. III Michigan Constitution, Article VI

Statutes and Court Rules

Michigan Administrative Procedures Act of 1969, M.C.L. §§ 24.301 (judicial review of contested cases)

Sources for Primary Jurisdiction

Texts and Treatises

LeDuc, Michigan Administrative Law, Chapter 10, Part IV (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

3 Davis, Administrative Law Treatise, § 19.01 (West 1958)

Cases

Attorney General v. Diamond Mortgage Co., 414 Mich. 603, 327 N.W.2d 805 (1982)

Attorney General v. Raguckas, 84 Mich. App. 618, 270 N.W.2d 665 (1978)

Bank v. Michigan Education Association NEA, 315 Mich. App. 496, 892 N.W.2d 1 (2016)

ADMINISTRATIVE LAW PRIMER

Far East Conference v. United States, 342 U.S. 570, 72 S. Ct. 492, 96 L. Ed. 576 (1952)

Great Northern Railway Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S. Ct. 477, 66 L. Ed. 943 (1922)

La Salle Townhouses Cooperative Association v. Detroit Edison Co., 69 Mich. App. 7, 244 N.W.2d 343 (1976)

Pompey v. General Motors Corp., 385 Mich. 537, 189 N.W.2d 243 (1971)

Rinaldo’s Construction Corp. v. Michigan Bell Telephone Co., 454 Mich 65, 559 N.W.2d 647 (1997)

Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S. Ct. 350, 51 L. Ed. 553 (1907)

United States v. Western Pacific Railroad Co., 352 U.S. 59, 77 S. Ct. 161, 1 L. Ed. 2d 126 (1956)

White Lake Improvement Association v. City of Whitehall, 22 Mich. App. 262, 177 N.W.2d 473 (1970)

Winter Building Corp. v. Novi, 119 Mich App. 155, 326 N.W.2d 409 (1892)

Wronski v. Sun Oil Co., 89 Mich. App. 11, 279 N.W.2d 564 (1979)

Constitutions

None

Statutes and Court Rules

None

CHAPTER XI: ACCESS TO AGENCY INFORMATION

Introduction

In the 1970s, a movement swept the nation which sought to remove secrecy from government activity. This reform movement, in part a reaction to public scandals not directly related to matters of routine administration of agencies, had two nearly contemporaneous major legislative embodiments in Michigan The Freedom of Information Act, referred to as the FOIA and the Open Meetings Act, referred to as the OMA. Although neither is included within the Administrative Procedures Act, they constitute essential features of administrative process today.

Access to government information and records is at best a common law right with no constitutional foundation. Previously, a combination of individual statutes and agency practices had allowed considerable access to records, but no central control existed; agency discretion in disclosure of information and documents was largely unchecked by the courts. Likewise, many meetings were not conducted in public, and those that were rarely attracted an audience due to the absence of a public notice system. FOIA and OMA were legislative attempts to alter the fundamental approach to government practices that were conducted out of the public eye and about which the public had only an uncertain chance to learn. Michigan’s FOIA closely parallels the federal model. Federal decisions about FOIA are often relied upon in construing the portions of the Michigan version that are similar. Since Florida’s open meetings act served as Michigan’s OMA model, the federal law is not persuasive authority when interpreting the state act.

The Freedom of Information Act Policy, Purpose, and Applicability

The Freedom of Information Act begins with a declaration of the acts public policy “that all [except incarcerated ed] persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees . . . .” FOIA’s purpose, stated in the same section, is that “[t]he people shall be informed so that they may fully participate in the democratic process.”

The fundamental principle embodied in FOIA is that public records are to be disclosed unless the public body which possesses

them is able to establish that one of FOIA’s exemptions allows nondisclosure. Conversely, FOIA does not prevent an agency from disclosing exempt information, although other statutes or constraints outside FOIA may do so. One additional feature of FOIA is that it requires publication of all final orders in contested cases, all promulgated rules, and all written statements implementing and interpreting laws, rules, and policies. FOIA provides that “[a] person may not be adversely affected by or required to resort to any matter” not published in compliance with this provision.

Understanding FOIA requires knowledge of the terms defined in the act itself, the most significant of which are: “person,” “public body,” “public record,” “writing,” and “unusual circumstances.”

Definitions related to cybersecurity were added in 2018.

Access to records is broadly available because “person” includes artificial entities, not just individuals, and because the person need not establish any special need or interest in the record nor articulate a purpose of the request for it. FOIA’s wide application is clear from the inclusion of all state and local entities in the executive and legislative branches, with only the executive offices of the Governor and Lieutenant Governor and legislative party caucuses excepted at the state level. Case law has established that sub agencies within agencies are included. But there are limits on access: all bodies in the judicial branch are exempt, and neither creation by state statute or local ordinance or public funding suffice in themselves to convert a private entity into a public body.

Both “public record” and “writing” are expansively defined. FOIA is intended to be inclusive of all records in a public body’s possession, whatever the form, including such items as computer disks and “software,” which is also defined in the act.

That a record was prepared or submitted to an agency by a private individual is irrelevant except to the possibility that it is included in an exemption. Records privately held are not covered, even if an agency could have obtained them. A requested record must actually exist; a public body has no duty to compile or create a requested record. The only duty created in FOIA is to maintain records, a duty implied when a FOIA request has been made and a decision on whether to disclose it is pending.

FOIA describes “unusual circumstances” as present when the request involves records that are voluminous or located at numerous sites, which affords an extension of response time, but does not justify nondisclosure. FOIA also defines and prescribes the process

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for designating a FOIA coordinator for local public bodies, making the chief administrative officer of all other public bodies the FOIA coordinator.

Procedures for Requests

FOIA’s procedures are relatively simple. Without regard to purpose, any person may inspect, copy, or receive copies of any public records. The request for the records can be oral or written and need only describe the record sought sufficiently for its identification by the public body, so long as the request is not overly broad. If the agency asserts that the request is inadequately descriptive, the requester can modify the request or file a judicial action in which the only issue will be the sufficiency of the request.

A public body has five days to act on a request if it is not granted, a public body must deny it, deny it in part, or seek an extension. Denials must be in writing and can only be based on the exemptions in FOIA or another statute, certification that the record does not exist, or unusual circumstances preventing timely disclosure. Failure to respond is treated as a denial.

Exemptions

The major basis for nondisclosure by a public body are the twenty seven exemptions (or twenty eight plus exemptions, depending how one counts the material exempted in subsection 13(2)). Among these, the most frequently asserted are the exemptions for clearly unwarranted invasions of individual privacy, law enforcement investigating records, statutorily protected records, trade secrets, and police and sheriff’s records.

FOIA’s provisions do not prevent the disclosure of an exempted record, nor does FOIA create any rights in private persons to assert nondisclosure. Other statutes and rights may prevent such disclosure. The burden of establishing an exemption lies on the public body. FOIA’s exemptions are to be narrowly construed. Public bodies have a duty to separate exempt from nonexempt material from the nonexempt, both in establishing records and in their disclosure.

Most of the litigation regarding FOIA has been about the exemptions. Swickard v. Wayne County Medical Examiner is a good example of some of the difficulties the exemptions can present, particularly those exemptions which require balancing of interests in disclosure versus nondisclosure.

Judicial Actions to Compel Disclosure

The proper judicial remedy for a refusal to disclose is an action to compel disclosure in circuit court; jurisdiction lies with the circuit of the requester’s residence, or the requester’s place of business, or with the locus of the record, or with the locus of the public body. Before filing an action to compel disclosure, the request to the public body must be put in writing.

In the action to compel, the burden is on the public body to sustain its nondisclosure, the exemptions are narrowly construed, and the plaintiff need not plead in avoidance of the exemptions. The court considers the matter in camera and de novo, reviewing affidavits from the public body describing the material withheld and containing assertions of specific facts to establish the exemption asserted. The proper remedy is disclosure, which may be disclosure of part of a record or of all of an edited version of the record sought.

Actual or compensatory damages are available under FOIA. Attorney fees and costs are awarded in actions to compel disclosure, if the requester prevails. Punitive damages may be granted where the refusal is found to be arbitrary and capricious.

FOIA is not a substitute for discovery. Although some aspects of FOIA coincide with discovery and are consistent with discovery, and although FOIA can be a useful tool regarding agency proceedings, caution is advised in use of FOIA in conjunction with those proceedings. FOIA only requires the production of existing records and not the creation of records, so it cannot be used in a manner like interrogatories or depositions. And the enforcement mechanism in FOIA matters is not tied to any other actions or under the control of a hearing office in a contested case or matter.

A public body’s denial of a request gives rise only to an action to compel disclosure in circuit court. In that action, the court can only order the public body to cease withholding; it cannot stay any other proceedings which might involve the parties. The public body is not required to halt an existing proceeding, such as a contested case, while a party to that proceeding seeks to enforce a FOIA request.

Ten Steps to Successful FOIA Analysis

1. Remember that the overriding purpose of the Freedom of Information Act is to disclose public records.

2. Use FOIA’s key definitions of “person,” “public body,” “public record,” “unusual circumstances,” and “writing.”

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3. Be aware that at the state level FOIA applies to most executive branch bodies, a number of legislative branch bodies, and not at all to the judicial branch. Locally, judicial bodies are not covered.

4. Understand that FOIA imposes only minimal requirements regarding record retention, that it applies only to existing records, and that it imposes no duty to create a record.

5. Follow FOIA’s specific procedures governing access and disclosure describe the requested record sufficiently, put the request in writing, and avoid overbreadth in the request.

6. Know that a public body responding to a request must grant the request, deny the request in writing, grant in part and deny in part the request in writing, or seek a 10 day extension in unusual circumstances.

7. Consider the numerous exemptions contained in FOIA section 13.

8. Know the procedures that a reviewing court must apply when it considers exemption arguments.

9. Keep foremost in mind that the remedy for denial is an action to compel disclosure.

10. Consider the availability of attorney fee and costs, and (possibly) punitive damages, if a requester prevails in whole or in part.

Texts and Treatises

Sources for FOIA Discussion

LeDuc, Michigan Administrative Law, Chapter 11, Parts I to IV (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Amburg v. City of Dearborn, 497 Mich. 28, 859 N.W.2d 674 (2014)

Bitterman v. Village of Oakley, 309 Mich. App. 53, 868 N.W.2d 642 (2015)

Booth Newspapers, Inc. v. University of Michigan Board of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993)

Buckmaster v. Department of State, 327 Mich. App. 469, 934 N.W.2d 59 (2019)

Bukowski v. City of Detroit, 478 Mich. 268, 732 N.W.2d 75 (2007)

Burton v. Tuite, 78 Mich. 363, 44 N.W. 282 (1889)

Capitol Information Association v. Ann Arbor Police Department, 138 Mich. App. 655, 360 N.W.2d 262 (1984)

Cashel v. Smith, 117 Mich. App. 405, 324 N.W.2d 336 (1982)

Coalition Protecting No Fault v. Michigan Catastrophic Claims Association, 317 Mich. App. 1, 894 N.W.2d 758 (2016)

Coalition Protecting No Fault v. Michigan Catastrophic Claims Association, 498 Mich. 896, 870 N.W.2d 70 (2015)

Coblentz v. City of Novi, 475 Mich. 558, 719 N.W.2d 73 (2006)

Coblentz v. City of Novi, 485 Mich. 961, 774 N.W.2d 526 (2009)

Detroit Free Press v. City of Warren, 250 Mich. App. 164, 645 N.W.2d 71 (2002)

Detroit Free Press v. Department of Attorney General, 271 Mich. App. 418, 722 N.W.2d 277 (2006)

Easley v. University of Michigan, 178 Mich. App. 723, 344 N.W.2d 820 (1989)

ESPN, Inc. v. Michigan State University, 498 Mich. 957, 872 N.W.2d 498 (2015)

Estate of Nash by Nash v. City of Grand Haven, 321 Mich. App. 587, 909 N.W.2d 862 (2017)

Evening News Association v. City of Troy, 417 Mich. 481, 339 N.W.2d 421 (1983)

Hagen v. Department of Education, 431 Mich. 118, 427 N.W.2d 879 (1988)

Herald Co., Inc. v. City of Kalamazoo, 229 Mich. 376, 581 N.W.2d 295 (1998)

Hopkins v. Duncan Township, 294 Mich. App. 401, 812 N.W.2d 27 (2011)

Mager v. Department of State Police, 460 Mich. 134, 595 N.W.2d 142 (1999)

Hoffman v. Bay City School District, 137 Mich. App. 333, 357 N.W.2d 686 (1984)

Howell Education Association, MEA/NEA v. Howell Board of Education, 287 Mich. App. 228, 789 N.W.2d 495 (2010)

Kent County Deputy Sheriffs’ Association v. Kent County Sheriff, 463 Mich. 353, 616 N.W.2d 677 (2000)

King v. Michigan State Police Department, 303 Mich. App. 162, 841 N.W.2d 914 (2013)

Kocher v. Department of Treasury, 241 Mich. App. 378, 615 N.W.2d 767 (2000)

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Landry v. City of Dearborn, 259 Mich. App. 416, 674 N.W.2d 697 (2003)

Larry S. Baker, P.C. v. City of Westland, 245 Mich. App. 90, 627 N.W.2d 27 (2001)

Local Area Watch v. City of Grand Rapids, 262 Mich. App. 136, 683 N.W.2d 745 (2004)

Michigan Federation of Teachers & School Related Personnel, AFT, AFL CIO v. University of Michigan, 481 Mich. 657, 753 N.W.2d 28 (2008)

Mithrandir v. Department of Corrections, 164 Mich. App. 143, 416 N.W.2d 352 (1987)

MLive Media Group v. City of Grand Rapids, 321 Mich. App. 263, 909 N.W.2d 282 (2017)

Nowack v. Auditor General, 243 Mich. 200, 219 N.W. 749 (1928)

Office Planning Group, Inc. v. Baraga Houghton Keweenaw Child Development Board, 259 Mich. App. 279, 674 N.W.2d 686 (2003)

Pennington v. Washtenaw County Sheriff, 125 Mich. App. 556, 336 N.W.2d 828 (1983)

Post Newsweek Stations, Michigan, Inc. v. City of Detroit, 179 Mich. App. 331, 445 N.W.2d 529 (1989)

Practical Political Consulting v. Secretary of State, 287 Mich. App. 434, 789 N.W.2d 178 (2010)

Proctor v. White Lake Township Police Department, 248 N.W.2d 457, 639 N.W.2d 332 (2001)

Schinzel v. Wilkerson, 110 Mich. App. 600, 313 N.W.2d 167 (1981)

Smith v. Khouri, 481 Mich. 519, 751 N.W.2d 472 (2008)

State Employees Association v. Department of Management and Budget, 428 Mich. 104, 404 N.W.2d 606 (1987)

State News v. Michigan State University, 481 Mich. 692, 753 N.W.2d 20 (2008)

Stone Street Capital, Inc. v. Bureau of State Lottery, 263 Mich. App. 683, 689 N.W.2d 541 (2004)

Swickard v. Wayne County Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991)

Thomas v. Board of Law Examiners, 210 Mich. App. 279, 533 N.W.2d 3 (1995)

Tobin v. Civil Service Commission, 416 Mich. 661, 331 N.W.2d 184 (1982)

Walloon Lake Water System, Inc. v. Melrose Township, 163 Mich. App. 726, 415 N.W.2d 292 (1987)

Constitutions

None

Statutes and Court Rules MCL 15.231 et seq.

The Open Meetings Act

Policy, Purpose, and Applicability

Although the Open Meetings Act contains no statement of purpose, its purpose appears to be that all deliberative actions of public bodies take place in meetings open and available to the public. Michigan courts have created a presumption of openness in deliberations and have followed a policy of liberal construction of the act. As with the FOIA, under OMA a public body has the burden of establishing exemption from coverage.

OMA includes several definitions. “Public body” includes state and local legislative or governing bodies, but the courts have yet to issue an opinion which provides an overriding principle for application. “Meeting” is “the convening of a public body at which a quorum is present for the purpose of deliberating toward or rendering a decision on a public policy.” “Closed session” is a meeting closed to the public. “Decision” is a “determination, action, vote or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.” The last three definitions have not been the subject of much litigation, and the leading case regarding the “decision” definition, Booth Newspapers, Inc. v. University of Michigan Board of Regents, failed to provide a controlling interpretation.

Unlike the situation with FOIA, the federal Open Meetings Act did not form the basis of the Michigan OMA, so federal cases are not binding or particularly persuasive in Michigan. Florida cases are more likely to be cited, because that state’s act was the basis for those of many other states, including Michigan. That these acts are called “sunshine” laws is a reference to the fact that the meetings are held in the open, rather than a characterization of the comparative weather conditions in these states.

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Notice procedures under OMA include that there must be: (1) identification of the public body holding the meeting, as well as posting of the notice of meeting in appropriate locations; (2) establishment of the annual meeting schedule of regular meetings within ten days of the start of each year, as well as notice of a change in the schedule of a regular meeting within three days after the decision to reschedule and at least 18 hours before the rescheduled meeting itself; and (3) a two thirds vote of the body to have an emergency meeting without notice.

Meetings are to be held in nonresidential buildings unless no nonresidential building is available, and the site of the meeting must be open and available to the public. The meeting is subject to recording in any form so long as the method or recording selected is not disruptive. The public may attend without registering, the public has the right of elocution at meetings, and no member of the public may be excluded except for a breach of peace actually committed at a meeting. OMA requires that minutes be kept, including specific instructions regarding content, corrections, and availability of minutes.

Exemptions

The Open Meetings Act exempts the following public bodies when deliberating the merits of a case: the Michigan compensation appellate commission in disability and employment security cases; the state tenure commission when acting as a board of review; the employment relations commission or certain arbitration panels; and the public service commission. The OMA does not apply to: associations of insurers, aspects of veterans’ trust fund matters, nonpolicy tributes or memorial decisions, or social or chance gatherings and conferences not designed to avoid the act.

The major exemption is for closed sessions, which can be held for deliberations but not decisions. A session can be closed only on a two thirds vote of the public body. Minutes of closed sessions must be kept and retained for a year and a day, but are not available to the public. Closure is allowed only for specific purposes: (1) personnel matters involving dismissal, suspension, or discipline, personnel evaluation, or consideration of complaints or charges; (2) student disciplinary matters; (3) collective bargaining strategy and negotiation sessions; (4) consideration of certain purchases or leases

LAW PRIMER

or real property; (5) settlement of litigation; (6) review of employment applications; (7) partisan political caucuses; (8) consideration of material exempt from disclosure by state or federal statute (including FOIA); (9) health code compliance conferences; and (10) aspects of searches for presidents of higher education institutions. Judicial decisions have established that the exemptions are to be narrowly construed and that the public body bears the burden of establishing their applicability.

Actions to Invalidate Decisions

An action may be invalidated for violation of OMA subsections 3(1) (openness of meeting), 3(2) (decisions made openly), or 3(3) (deliberations conducted openly), as well as for violations of the notice provisions which result in interference with substantial compliance with these three subsections.

But in order to invalidate a decision, certain obstacles must be surmounted. OMA includes a presumption of regularity and conformity with procedural requirements, the courts apply a standard of substantial compliance, and the courts retain discretion whether to set aside a challenged decision. A plaintiff must also establish that the rights of the public have been impaired as a result of the decision itself. A claim cannot be asserted in conclusionary language. An action to invalidate must be made directly under the OMA judicial review provisions and cannot be made collaterally. A decision that is set aside can be reenacted, is effective from the time of reenactment, and cannot be attacked subsequently for the original violation.

Actions to invalidate must be brought in circuit court, venue is in the circuit court of the public body or Ingham county for state bodies. There is a short statute of limitations sixty days in most circumstances. Standing is generous, reposing in the Attorney General, the county prosecutor, and any person.

Actions to Compel Compliance or Enjoin Noncompliance

Jurisdiction for injunction action is in the circuit courts and for mandamus in the Court of Appeals, but the court rules will control. Venue is the same as for actions to invalidate. Standing is the same as for actions to invalidate, but the four grounds set forth for invalidation do not limit these actions.

Attorney fees and costs are available to successful litigants in actions to compel or enjoin but not for actions to invalidate, so

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plaintiffs seeking to invalidate are well advised to seek an injunction against future violations. Intentional violations can result in actual and exemplary damages up to $500, as well as costs and attorney fees.

Ten Steps to Successful OMA Analysis

1. Remember that the overriding purpose of the Open Meetings Act is to secure access to deliberative sessions of public bodies.

2. Use OMA’s key definitions of “public body,” “meeting,” “closed session,” and “decision.”

3. Understand that OMA applies to all legislative and governing bodies of state and local government and that judicial bodies are entirely exempt.

4. Consider OMA’s specific procedures governing public meetings.

5. Check to see if the particular public body is exempt from OMA coverage.

6. Review the procedures related to closed sessions.

7. Know the exemptions from openness contained in section 8 of OMA.

8. Determine whether the failure to comply with the provisions is grounds for invalidation of a decision or action.

9. Be aware that any challenge must be directly made under OMA and that collateral attack is not possible.

10. Follow the procedures for invalidation in section 10 or for compelling compliance or enjoining noncompliance in section 11 or for doing both in one action.

Texts and Treatises

Sources for OMA Discussion

LeDuc, Michigan Administrative Law, Chapter 11, Parts V to VIII (Thomson Reuters) 2021 Edition

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, T.M. Cooley Law Review, Volume 12:21 (1995)

Cases

Arnold Transit Co. v. City of Mackinac Island, 99 Mich. App. 266, 297 N.W.2d 904 (1980)

Booth Newspapers, Inc. v. University of Michigan Board of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993)

Cape v. Howell Board of Education, 145 Mich. App. 459, 378 N.W.2d 506 (1985)

Citizens For A Better Algonac Public Schools v. Algonac Community Schools, 317 Mich. App. 171, 894 N.W.2d 645 (2016)

Crowley v. Governor of Michigan, 167 Mich. App. 539, 423 N.W.2d 258 (1988)

Davis v. City of Detroit Financial Review Team, 296 Mich. App. 568, 821 N.W.2d 896 (2012)

Esperance v. Chesterfield Township, 89 Mich. App. 456, 280 N.W.2d 559 (1979)

Federated Publications, Inc. v. Board of Trustees of Michigan State University, 460 Mich. 75, 594 N.W.2d 491 (1999)

Jude v. Heselschwerdt, 228 Mich. App. 667, 578 N.W.2d 704 (1998)

Leemreis v. Sherman Township, 273 Mich. App. 691, 731 N.W.2d 787 (2007)

Local 79, Service Employees International Union v. Lapeer County General Hospital, 111 Mich. App. 441, 314 N.W.2d 648 (1981)

Meyers v. Patchkowski, 216 Mich. App. 513, 549 N.W.2d 602 (1996)

Moore v. Fennville Public Schools Board of Education, 223 Mich. App. 196, 566 N.W.2d 31 (1997)

Omdahl v. West Iron County Board of Education, 478 Mich. 423, 733 N.W.2d 380 (2007)

People v. Whitney, 228 Mich. App. 230, 578 N.W.2d 329 (1998)

Speicher v. Columbia Township Board of Trustees, 497 Mich. 125, 860 N.W.2d 51 (2014).

Vermilya v. Delta College Board of Trustees, 325 Mich. App. 416, 925 N.W.2d 897 (2018).

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Constitutions

None

Statutes and Court Rules MCL 15.261 et seq.

The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of imminent jurists. Each year, these winning briefs are printed in the Thomas M. Cooley Law Review. To preserve the author’s style, the brief has been reprinted in its entirety, exactly as submitted to the Michigan Supreme Court.

LAW OFFICES OF JEFFERY SHERBOW, P.C., Plaintiff-Appellee v.

FIEGER & FIEGER, P.C., d/b/a FIEGER, FIEGER, KENNEY & HARRINGTON, P.C.

Defendant Appellant

ABSTRACT

The Defendant Appellant’s brief in Sherbow v. Fieger addressed whether an attorney client relationship is a necessary prerequisite for a lawyer to claim an attorney fee for legally and ethically referring a client to another lawyer. Michigan’s Rules of Professional Conduct on referral fees, as the Defendant Appellant’s brief pointed out, falls under MRPC 1.5(e), which holds that lawyers from different firms may divide a fee if “the client is advised of and does not object to the participation of all the lawyers involved.”

Defendant Appellant’s brief argued that the Michigan Court of Appeals cleared a pathway for predatory practices when it held that an attorney client relationship is not a necessary prerequisite for a lawyer to claim an attorney fee for legally and ethically referring a client under MRPC 1.5(e). Defendant Appellant’s brief also addressed the order for a new trial. Citing a consensus of cases on this matter, Defendant Appellant encouraged the Court to find that there was no basis for the Court of Appeals to order a new trial. The brief pointed out that because an attorney client relationship is required, the trial court did not err in instructing the jury that such a

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relationship needed to be established for Plaintiff Appellee to prevail, and thus, no basis for a new trial.

BIOGRAPHICAL STATEMENT

Judge Sima Patel has dedicated the last 17 years of her life to writing, reviewing, and arguing appeals. Her experience in appellate work started when she clerked in the Michigan Supreme Court for two different judges where she read and analyzed thousands of appellate briefs. Judge Patel went on to dedicate 11 years to advocating for justice as an appellate attorney before she was personally appointed to the Michigan 2nd District Court of Appeals by Governor Gretchen Whitmer. Judge Patel is also a member of the Michigan Association of Justice where she dedicated her advocacy skills to the Amicus Committee. There, she wrote briefs that furthered a number of justice initiatives affecting the people of Michigan. In recognition of her work, it is no surprise that Michigan Lawyers Weekly named her as a member of its prestigious Leaders in the Law for 2021.

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PEOPLE OFTHE STATE OFMICHIGAN

Plaintiff Appellee v. PAUL J. BETTS Defendant Appellant

ABSTRACT

The issue in People v Betts was whether the 2011 Sex Offenders Registration Act was unconstitutional, ex post facto punishment. In July 2021, the Michigan Supreme Court held that it was. The decision capped off nine years of litigation, which first began with Mr. Betts’s pro per motion in the trial court. The Court specifically noted the following portions of the 2011 SORA that supported its conclusion that registration was punishment, and unconstitutional when imposed retroactively: it restricts where registrants can live, work, and loiter; it is comparable to shaming, given the public internet registry and the vast amount of information made public just by registration; it resembles parole, given the “significant amount of supervision by the state”; it imposes onerous burdens such as immediate in person reporting requirements based on numerous and often mundane life events; it is excessive given the “uncertainty of the 2011 SORA’s efficacy” in reducing recidivism, due to the lack of an individualized assessment of risk. All of SORA’s punitive burdens were discussed extensively in this brief.

BIOGRAPHICAL STATEMENT

Jessica Zimbelman is a Managing Attorney with the State Appellate Defender Office, representing people statewide as they appeal their convictions and sentences. She has appeared before the Michigan Court of Appeals and Michigan Supreme Court multiple times, as well as trial courts throughout the state. Prior to SADO, she

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was the Senior Analyst in the Legislative Corrections Ombudsman’s Office, monitoring the Michigan Department of Corrections on behalf of the State Legislature. Before law school, Jessica was a legislative aide in the Michigan House of Representatives and continues to be active in the policy world through SADO and as Co Chair of the Rules and Law Committee of the Criminal Defense Attorneys of Michigan. Jessica is a member of the Representative Assembly of the State Bar of Michigan, representing Ingham County. She is also on the Board of Directors of the Ingham County Bar Association. She lives in Lansing with her husband and two rambunctious twin daughters.

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WESTERN MICHIGAN UNIVERSITY

COOLEY LAW REVIEW