The Petition for Review's Timely Demise

Administrative Law Journal Winter 20132012-2013Section CouncilChairJon P. ChristinidisDTE Energy1 Energy Plz # 688-WcbDetroit, MI 48226-1221P: (313) 235-7706F: (313) 235-0114E: christinidisj@dteenergy.comChair-ElectMichael F. Matheson, LansingSecretaryChristine Mason Soneral, NoviTreasurerMichael S. Ashton, LansingEx OfficioKimberly A. BreitmeyerTerm Expires 2012Richard J. Aaron, LansingJon P. Christinidis, DetroitTimothy J. Lundgren,Grand RapidsMichael F. Matheson, LansingTerm Expires 2013Kimberly A. Breitmeyer, LansingMark J. Burzych, OkemosGary P. Gordon, LansingChristopher L. LaGrand,LansingTerm Expires 2014Michael S. Ashton, LansingJ. Patrick Howe, Royal OakChristine Mason Soneral, NoviMichael J. Watza, DetroitTerm Expires 2015Richard J. Aaron, LansingJon P. Christinidis, DetroitTimothy J. Lundgren, GrandRapidsMichael F. Matheson, LansingCommissioner LiaisonStephen J. Gobbo, LansingThe Administrative Law Journal ispublished by the Administrative LawSection of the State Bar of Michigan,306 Townsend Street, Lansing,Michigan 48933-2012. Send proposedarticles to Gary Gordon, at this emailaddress: ggordon@dykema.comThe views expressed in thispublication do not necessarily reflectthose of the Administrative LawSection of the State Bar of Michigan.Publication of an author’s materialdoes not constitute an endorsementof the views expressed.The Petition for Review’sTimely DemiseBy Gaëtan Gerville-RéacheWhen the Michigan Supreme Court’s new rules for appeals to circuit court took effect onMay 1 of last year, they reshaped the landscape for administrative appeals—new procedureswere created, others were enhanced, and some were entirely jettisoned—all in the good namesof consistency, clarity, and completeness. 1 Though appeals from agency decisions under theAPA already boasted the most comprehensive set of procedures, new MCR 7.119 changedthe way those appeals are processed in at least one significant and positive respect: there is nolonger any such thing as a “petition for review.” The Supreme Court discarded that antiquateddevice in favor of the more streamlined, yet still traditional, “claim of appeal.” 2 That archaicmainstay of judicial review known as a “petitioner for review” is now all but extinct, alongwith the baggage that came along with it. By baggage, I mean both that cumbersome anduseless requirement to state the “grounds” for relief in the petition and the all-too-temptingopportunity to answer it. 3Under the old rules “petitioners” had to allege “the grounds on which relief is sought,stated in as many separate paragraphs as there are separate grounds alleged.” 4 This led attorneysto draft the petition as a complaint, setting forth allegations of fact and the variouscounts establishing why the administrative decision below was wrong and should not stand.Often this left little time to research the issues and judiciously select those most deserving ofreview. So attorneys would throw in everything to avoid the risk of waiving what might turnout to be, on closer inspection, a meritorious argument. Circuit court judges no doubt sawmany a scattershot petition of significant length. Petitioners have been known to file petitionsmore than 40 pages long, not including the exhibits.Even worse, the old rules allowed the appellee to file an answer, and the circuit court couldeven require it. 5 Appellees naturally felt compelled to respond to the appellant’s “spurious”allegations, adding to the cost of defending the appeal and to the court’s reading pile. Theparties would then make the same points all over again in their merits briefing, albeit withmore discussion and legal authority. This petition-answer process closely resembled that of applyingfor leave to appeal, where the appellant files an application and the appellee answers it.But the application process provides the court with information necessary to properly exerciseits discretion on whether to hear the appeal. The petition process, on the other hand, appliedwhether judicial review was discretionary or not, and more often than not was a useless exercise,a waste of party and judicial resources.Except in those rare instances where judicial review is discretionary, 6 appellants (with onelimited exception) should no longer be tempted under the new rules to burden the court witha lengthy complaint-like document—or scramble to identify every conceivable agency error7 —at the outset of the appeal. The requirement to state “grounds for relief” is gone for allbut zoning appeals where unique concerns purportedly justified its continued use. 8 Thus, inAPA appeals where no other statute dictates the process, appellants only need to identify thepertinent administrative decision, the statutory provisions that establish jurisdiction, and thefacts that establish venue. 9 Moreover, no answer from the appellees is necessary or even authorized,unless it comes in the form of a motion to dismiss. 10But what about those pesky statutes with judicial review procedures of their own? Some,like the APA, appear to mandate filing something called a “petition for review.” 11 One ofHome Back Next2

Administrative Law Journal Winter 2013The Petition for Review’s Timely DemiseContinued from page 2the cardinal rules of administrative appellate procedure is toalways, always, always look at the statute authorizing judicialreview and follow it, lest you should forfeit your right toappeal. If the statute says file something called a “petitionfor review,” dare I depart from that solemn edict and call itsomething else? Actually . . . yes.The Michigan Supreme Court has exclusive authorityto determine rules of practice and procedure. 12 If “no clearlegislative policy reflecting considerations other than judicialdispatch of litigation can be identified” in the statute,the court rules govern. 13 The Circuit Court Appellate RulesRevision Committee was well aware that other statutes outthere required a “petition for review,” but saw no supersedinglegislative policy at work in the Legislature’s choice ofnomenclature. They are undoubtedly right. This is oneof those rare instances where the court rules are king. Thedocument should be called a “claim of appeal” not a “petitionfor review,” no matter what the statute says.Given that there are around 200 different statutes inMichigan authorizing judicial review, this author is not willingto extend that exception beyond the subject of nomenclature.It would probably be an overgeneralization to say thatthe court rules always supersede the statute when it comesto the form or content of the court filing. The Legislaturecould, for instance, require certain information in the claimof appeal for the purpose of putting parties or the court onnotice. And a court might conclude that such a statutoryprovision enunciates a legislative policy that goes beyond the“dispatch of litigation.” Generally, the statute authorizingreview should be scrutinized for such procedures, and regardlessof what the court rule says, those statutory proceduresshould be followed. There is, however, one major exception:the APA’s petition for review process.The APA, in section 102, states that its petition for reviewprocedures should be followed only when no court rule adequatelygoverns the process:Judicial review of a final decision or order in a contestedcase shall be by any applicable special statutoryreview proceeding in any court specified by statuteand in accordance with the general court rules.In the absence or inadequacy thereof, judicial reviewshall be by a petition for review in accordance withsections 103 to 105. 14So while the APA contemplates a process similar tothat under the former rules—a petition for review stating“grounds on which relief is sought”—the Legislature wiselydeferred to the rules of the Michigan Supreme Court. 15 Andthe Supreme Court has appropriately dispensed with the outdatedterminology and unnecessary pleading requirements.Counsel should do each other and their clients a favor andabide by this new judicial policy absent some contrary andcontrolling legislative policy. The Supreme Court’s departurefrom the petition-answer process is an evolution that waslong overdue. Good riddance to the petition for review.Endnotes1 See generally Gaëtan Gerville-Réache, “Welcome to Michigan’s‘New and Improved’ Appellate Court”, Mich Appellate PracticeJournal, Winter 2012, Vol 16, No 1, p 3; Gerville-Réache,“Junking the Ole Jalopy”, Mich Bar Journal, March 2012,pp 18–20.2 See MCR 7.119.3 See former MCR 7.105(2)(c)(d).4 Former MCR 7.105(2)(c)(d).5 Former MCR 7.105(F).6 See MCR 7.105 (governing applications for leave to appeal tothe circuit court)7 That is not to say that raising every conceivable allegation oferror is an effective tactic in an application for leave to appeal.8 See MCR 7.122(C)(2)(b)(v) (governing zoning appeals).9 MCR 7.119(B)(2)(b).10 See MCR 7.110.11 See, e.g., MCL 24.303; MCL 257.323 (calling for a “petitionfor review” of the denial or suspension of an operating licenseunder the Motor Vehicle Code).12 Const 1963, art 6, § 5.13 Kirby v Larson, 400 Mich 585, 598; 256 NW2d 400 (1977).14 MCL 24.302.15 MCL 24.303(3)(a), (d).Home Back Next3