Trial lawyers work not only in courtrooms. They often represent clients in administrative proceedings, which can include school board meetings; meetings of the Zoning Board of Appeals; hearings regarding unemployment compensation or workers compensation; disciplinary proceedings when a client works for a governmental agency; and/or decisions made by an agency of government.
Citizens are entitled to due process when they deal with the government, and the "government" is often the local government. School boards, licensing boards, city councils, various commissions, various departments, and many agencies are all considered part of the "government." Boards, commissions, and agencies offer hearings on issues that are disputed, and then the board, commission, or agency makes a decision. While decisions are not court orders or court judgments, they can be appealed to a court.
Michigan law provides as follows:
An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made in accordance with the rules of the supreme court.
MCLA 24.201 et seq is known as the “Administrative Procedures Act." MCLA 24.301 provides as follows:
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 or order is affirmative or negative in form, the decision or order is subject to direct review by the courts as provided by law. Exhaustion of administrative remedies does not require the filing of a motion or application for rehearing or reconsideration unless the agency rules require the filing before judicial review is sought. A preliminary, procedural or intermediate agency action or ruling is not immediately reviewable, except that the court may grant leave for review of such action if review of the agency's final decision or order would not provide an adequate remedy.
The APA requires a party to “exhaust” administrative remedies before filing a lawsuit. This is very important and may require legal advice. If a party is “aggrieved” by a decision and has exhausted his/her remedies, that does not mean that the court will step into the shoes of the agency or commission that made the decision. In fact, the court’s “review” of the decision is quite limited. MCLA 24.306 provides as follows:
(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of the agency.
(c) Made upon unlawful procedure resulting in material prejudice to a party.
(d) Not supported by competent, material and substantial evidence on the whole record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
(f) Affected by other substantial and material error of law.
(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.
In most cases, the complaint about an agency or commission’s decision is that the decision was not supported by competent, material and substantial evidence on the whole record and/or was arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
It is imperative that a good “record” be made at the agency level during that hearing. A client may need to bring in his/her own court reporter to transcribe the proceedings. It is important to offer exhibits and/or testimony at the hearing level since an appeal does not re-open the proceeding.
We are surrounded by many agencies which can have a significant effect on our lives. If we are a licensed professional, our license may be at issue. The government controls whether we have a driver’s license. CPS can become involved in our lives. The IRS is an agency. The police department is an agency. Agencies are all around. If an agency discriminates against us, it can be sued directly in court. If there are claims of police brutality, then a victim of that brutality can sue. For the most part, however, governmental agencies, boards, and commissions have “governmental immunity” that protects them from direct litigation. Their decisions can be appealed and reviewed by the court—even possibly reversed; in most cases, however, a court will not award “damages” as a result of an agency decision.
Many people elect to represent themselves at the agency level and then retain an attorney if that decision does not go well. This is a mistake. An attorney can help prepare for an administrative hearing and/or represent a client there. An attorney can ensure that a proper record is made and that administrative remedies are exhausted. If that fails, then the attorney can file a timely action in the circuit court—but an attorney cannot go “backwards” and create a convincing record when none exits.
Faupel Musser Love, P.C. has significant experience with administrative proceedings and is available to help you.
Faupel Musser Love in Ann Arbor, Michigan is ready to discuss your legal issue, please call one of our skilled attorneys at (734) 677-0776 or contact Faupel Musser Love online or via e-mail.